\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Juan CORTEZ, A/K/A Jasinto Morales, Defendant - Appellant. Steven Abrams ; Esmeralda Cabrera; Teofilo Chapa; Jeffrey S. Chase; George T. Chew; Matthew J. D'Angelo; Bruce J. Einhorn; Cecelia M. Espenoza; Noel Ferris; John F. Gossart, Jr.; Miriam Hayward; Rebecca Jamil; William P. Joyce; Carol King; Elizabeth A. Lamb ; Margaret McManus ; Charles Ernst Pazar; Laura Ramirez; John W. Richardson ; Lory Diana Rosenberg; Susan Roy; Paul William Schmidt; Denise Noonan Slavin; Andrea H. Sloan; William Peter Van Wyke; Gustavo D. Villageliu; Polly A. Webber, Amici Supporting Appellant.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-07-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 19-4055\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nJUAN CORTEZ, a/k/a Jasinto Morales,\n\n Defendant - Appellant.\n\n------------------------------\n\nSTEVEN ABRAMS; ESMERALDA CABRERA; TEOFILO CHAPA; JEFFREY\nS. CHASE; GEORGE T. CHEW; MATTHEW J. D’ANGELO; BRUCE J.\nEINHORN; CECELIA M. ESPENOZA; NOEL FERRIS; JOHN F. GOSSART,\nJR.; MIRIAM HAYWARD; REBECCA JAMIL; WILLIAM P. JOYCE; CAROL\nKING; ELIZABETH A. LAMB; MARGARET MCMANUS; CHARLES ERNST\nPAZAR; LAURA RAMIREZ; JOHN W. RICHARDSON; LORY DIANA\nROSENBERG; SUSAN ROY; PAUL WILLIAM SCHMIDT; DENISE\nNOONAN SLAVIN; ANDREA H. SLOAN; WILLIAM PETER VAN WYKE;\nGUSTAVO D. VILLAGELIU; POLLY A. WEBBER,\n\n Amici Supporting Appellant.\n\n\nAppeal from the United States District Court for the Western District of Virginia, at\nLynchburg. Norman K. Moon, Senior District Judge. (6:18-cr-00022-NKM-1)\n\n\nArgued: May 9, 2019 Decided: July 17, 2019\n\n\nBefore MOTZ, AGEE, and HARRIS, Circuit Judges.\n\fAffirmed by published opinion. Judge Harris wrote the opinion, in which Judge Motz\nand Judge Agee joined.\n\n\nARGUED: Erin Margaret Trodden, OFFICE OF THE FEDERAL PUBLIC\nDEFENDER, Harrisonburg, Virginia, for Appellant. Laura Day Rottenborn, OFFICE OF\nTHE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. ON BRIEF:\nJuval O. Scott, Federal Public Defender, Roanoke, Virginia, Lisa M. Lorish, Assistant\nFederal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\nCharlottesville, Virginia, for Appellant. Thomas T. Cullen, United States Attorney,\nOFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.\n\n\n\n\n 2\n\fPAMELA HARRIS, Circuit Judge:\n\n Juan Cortez, a citizen of Mexico, was charged with illegally reentering the United\n\nStates after having been removed years prior. Cortez conceded that he was unlawfully\n\npresent, but argued that his initial removal order was invalid because of an alleged filing\n\ndefect that deprived the immigration court of “jurisdiction” over his case. The district\n\ncourt rejected that argument, and Cortez subsequently pleaded guilty while preserving his\n\nright to raise the issue on appeal.\n\n We affirm the district court’s order. We first hold that the premise of Cortez’s\n\nargument – that the purported filing defect in his case deprived the immigration court of\n\nauthority to enter a removal order, so that he may collaterally challenge that order in\n\nsubsequent criminal proceedings – is incorrect. And in any event, there in fact was no\n\ndefect. As the district court explained, the applicable regulations do not require that the\n\ninformation identified by Cortez – a date and time for a subsequent removal hearing – be\n\nincluded in the “notice to appear” that is filed with an immigration court to initiate\n\nproceedings.\n\n\n\n\n I.\n\n A.\n\n Juan Cortez is a citizen of Mexico who has been found to be unlawfully present in\n\nthe United States on two occasions. The first was in 2011. On February 27 of that year,\n\nthe Department of Homeland Security (“Department”) served Cortez with a document\n\n\n 3\n\flabeled “Notice to Appear.” That notice advised him, among other things, that he was\n\ncharged with being unlawfully present in the country, and that the Department was\n\ninitiating removal proceedings against him. The notice provided Cortez with the location\n\nof the immigration court where his removal hearing would be held, but did not provide a\n\ndate and time, stating only that the hearing would occur “on a date to be set at a time to\n\nbe set.” J.A. 10. At the same time it served Cortez with this written notice, however, the\n\nDepartment orally informed him of his hearing date and time.\n\n The Department filed the notice to appear with the immigration court on March 3,\n\n2011. Two weeks later, on March 17, 2011, the immigration court held a removal\n\nhearing, which Cortez attended via video conference. The immigration judge confirmed\n\nthat Cortez was unlawfully present and ordered that he be removed from the country.\n\nThere is no indication that Cortez challenged the contents of the notice to appear or the\n\nimmigration judge’s authority to order his removal, and Cortez neither administratively\n\nnor judicially appealed the removal order on any ground. Cortez was removed from the\n\nUnited States in April 2011.\n\n B.\n\n At some point following his removal, Cortez entered the United States a second\n\ntime, again without applying for legal admission. In September 2018, the government\n\nlocated Cortez in the vicinity of Lynchburg, Virginia. This time, the government\n\ncriminally charged Cortez with illegal reentry under 8 U.S.C. § 1326(a), which is violated\n\nwhen an individual who previously was “deported” or “removed” from the country\n\n\n\n 4\n\f“enters, attempts to enter, or is at any time found in, the United States” without legal\n\nauthorization.\n\n Before the district court, Cortez moved to dismiss the indictment against him. He\n\nconceded that he had entered the United States without legal authority, so that the second\n\nelement of his criminal charge – unlawful presence – was satisfied. But the first element\n\n– a previous removal from the country – was not satisfied, Cortez argued, because even\n\nthough he attended his 2011 immigration hearing, “the immigration judge lacked subject\n\nmatter jurisdiction to enter an order of removal against him.” J.A. 6. It followed, Cortez\n\ncontended, that his 2011 removal order was void, and could not be the basis for a charge\n\nunder § 1326(a).\n\n As a general rule, Cortez recognized, a criminal defendant may collaterally attack\n\na removal order in a prosecution for illegal reentry only if three conditions are met: “(1)\n\n[he] exhausted any administrative remedies that may have been available to seek relief\n\nagainst the order; (2) the deportation proceedings at which the order was issued\n\nimproperly deprived [him] of the opportunity for judicial review; and (3) the entry of the\n\norder was fundamentally unfair.” 8 U.S.C. § 1326(d). But according to Cortez, that\n\nframework did not apply because he was challenging the “subject matter jurisdiction” of\n\nthe immigration court, “an issue that cannot be waived or forfeited.” And even if it did\n\napply, Cortez argued, a lack of “subject matter jurisdiction” by itself satisfied all three\n\nprerequisites for a collateral attack under § 1326(d).\n\n The purported error at the heart of Cortez’s claim was the failure of the notice to\n\nappear filed in connection with his 2011 removal proceeding to specify a date and time\n\n 5\n\ffor his hearing. Under the regulations governing removal proceedings, Cortez explained,\n\nproceedings commence and “[j]urisdiction vests” with the immigration judge when a\n\n“charging document” is filed with the immigration court. 8 C.F.R. § 1003.14(a). The\n\nregulations list three documents that may qualify as “charging document[s],” including a\n\n“[n]otice to [a]ppear.” Id. § 1003.13. And a “notice to appear,” Cortez finished, is\n\ndefined in the Immigration and Nationality Act (“INA”) itself, which requires that a\n\n“notice to appear” include the “time and place at which the proceedings will be held,” 8\n\nU.S.C. § 1229(a)(1)(G)(i); see also Pereira v. Sessions, 138 S. Ct. 2105, 2114 (2018)\n\n(confirming that notice to appear under § 1229(a) “include[s] . . . the time and place of\n\nthe removal proceedings”). Putting all of that together, Cortez argued that because the\n\nnotice filed in his case omitted a hearing time, it did not vest the immigration court with\n\n“jurisdiction,” rendering his removal order a legal nullity.\n\n The district court disagreed. The court did not dispute the premise of Cortez’s\n\nargument: that a defect in the notice to appear would implicate the immigration court’s\n\njurisdiction and allow for a collateral attack on the removal order. But, the court held, the\n\nnotice to appear was not defective, because the regulatory definition of the “notice to\n\nappear” that vests a court with “jurisdiction” under 8 C.F.R. § 1003.14(a) does not “list\n\nthe time and date of the removal proceedings as required criteria.” J.A. 18 (citing 8\n\nC.F.R. § 1003.15(b)–(c)). Cortez, the court reasoned, was pointing to the wrong\n\ndefinition of “notice to appear”: The statutory provision in § 1229(a) does not address\n\n“the immigration court’s . . . jurisdiction over the proceeding,” but is instead concerned\n\nwith the separate issue of providing notice to a noncitizen in a removal proceeding. Id.\n\n 6\n\f Because Cortez had shown no defect affecting the immigration court’s\n\n“jurisdiction,” the court concluded, he could attack his removal order collaterally only if\n\nhe could satisfy the standard § 1326(d) requirements. Jumping directly to the third\n\nrequirement, the court held that Cortez’s removal order was not “fundamentally unfair,”\n\nJ.A. 20, in part because Cortez – who attended his hearing after being provided with oral\n\nnotice of the date and time – suffered no “actual prejudice,” J.A. 21. Accordingly, the\n\ndistrict court denied Cortez’s motion to dismiss the indictment against him.\n\n Cortez pleaded guilty less than two weeks later, and the district court sentenced\n\nhim to time served. Cortez’s plea agreement reserved his right to appeal the district\n\ncourt’s ruling on his motion to dismiss the indictment, and he timely noticed this appeal.\n\n\n\n II.\n\n Cortez makes the same argument on appeal as he did before the district court:\n\nBecause no proper notice to appear was filed in his removal proceedings, the immigration\n\ncourt lacked “jurisdiction,” and as a result, there is no valid removal order on which to\n\nbase a prosecution for illegal reentry. We review this claim, which turns on purely legal\n\nquestions, de novo, United States v. Hatcher, 560 F.3d 222, 224 (4th Cir. 2009), and find\n\nthat the district court correctly denied Cortez’s motion to dismiss.\n\n Before we even reach Cortez’s argument – that the immigration court lacked\n\n“subject matter jurisdiction” to enter his 2011 removal order because of a defect in the\n\nnotice to appear filed with the court – we are confronted with a threshold issue. Both\n\nparties assume that a successful challenge to the “subject matter jurisdiction” of an\n\n 7\n\fimmigration court would by itself be grounds for a collateral attack on a removal order,\n\nrelieving Cortez of the obligation to satisfy the § 1326(d) requirements that ordinarily\n\napply to collateral challenges. We have questions about that assumption, which we\n\noutline below.\n\n We need not resolve the issue, however, because for two independent reasons,\n\nCortez cannot succeed in his challenge to the immigration court’s “jurisdiction.” First,\n\nthe regulation on which Cortez relies, 8 C.F.R. § 1003.14(a), is a docketing rule that does\n\nnot implicate the immigration court’s adjudicatory authority, referred to as “subject\n\nmatter jurisdiction” by the parties. And in any event, we agree with the district court that\n\nCortez has failed to show any defect in his notice to appear under that regulation.\n\n A.\n\n At bottom, this case is about a collateral challenge to a removal order in a criminal\n\nproceeding for illegal reentry under 8 U.S.C. § 1326(a). The threshold question\n\npresented is whether Cortez may advance his argument – that the immigration court\n\nlacked “jurisdiction” to issue a removal order in his case – in this posture. The parties\n\nand the district court assumed that Cortez’s challenge to the “subject matter jurisdiction”\n\nof the immigration court, if successful, necessarily would allow for a collateral attack on\n\nhis removal order, relieving him of the obligation to satisfy the § 1326(d) requirements\n\nthat ordinarily apply. But we have doubts about that assumption. And given the breadth\n\nof its implications – opening to collateral attack every removal order in proceedings\n\ncommenced by an incomplete notice, regardless of the significance of the error or the\n\npossibility of prejudice – we do not wish to leave it unaddressed.\n\n 8\n\f In a criminal proceeding for illegal reentry, the existence of a removal order\n\nusually is enough to meet the government’s burden of establishing the defendant’s prior\n\nremoval or deportation. United States v. Moreno-Tapia, 848 F.3d 162, 165 (4th Cir.\n\n2017). But there is an exception, allowing a defendant to collaterally attack a removal\n\norder – so that it no longer serves as a predicate for a criminal reentry charge – when\n\nthere was a “procedural flaw in the immigration proceeding” that prevented the\n\nnoncitizen from seeking review when the order was issued, thus violating his due process\n\nrights. Id. at 169; see also United States v. Mendoza-Lopez, 481 U.S. 828 (1987). Under\n\n8 U.S.C. § 1326(d), a noncitizen must make each of three showings to come within that\n\nexception and mount a collateral attack: that (1) he “exhausted any administrative\n\nremedies” available to seek relief against the removal order; (2) the removal proceedings\n\n“improperly deprived [him] of the opportunity for judicial review”; and (3) entry of the\n\norder was “fundamentally unfair.”\n\n It is readily apparent that Cortez cannot make any of those showings. First, Cortez\n\nfailed to exhaust his administrative remedies: He neither administratively appealed the\n\nimmigration judge’s decision nor provided any explanation for why he could not do so.\n\nSecond, Cortez failed to show that the alleged defect in his proceeding – the absence of a\n\nhearing date on the notice filed with the immigration court – somehow deprived him of\n\nthe opportunity for judicial review of a removal proceeding of which he had actual notice\n\nand in which he actively participated. Finally, Cortez cannot establish “fundamental\n\nunfairness,” which requires that “but for the errors complained of, there was a reasonable\n\nprobability that he would not have been deported,” United States v. El Shami, 434 F.3d\n\n 9\n\f659, 665 (4th Cir. 2005). Cortez was promptly provided with oral notice of the date and\n\ntime of his hearing, which, again, he attended, and there is no reason to believe that the\n\nhearing would have proceeded any differently, much less resulted in a different outcome,\n\nhad the notice docketed with the immigration court also provided the same date and time\n\ninformation.\n\n Thus, Cortez may proceed with his collateral attack only if there is some\n\nexception-to-the-exception that would allow him to bypass these normal requirements.\n\nCortez argues that there is just such an exception: If he is correct that a defect in the\n\nnotice to appear filed with the immigration court to commence his proceedings deprived\n\nthe immigration court of “jurisdiction” under 8 C.F.R. § 1003.14(a), then his removal\n\norder was void ab initio and necessarily subject to collateral challenge. But Cortez\n\nprovides scant authority for that theory, and we question whether he has framed the issue\n\ncorrectly.\n\n First, contrary to what seems to be Cortez’s assumption, there is no freestanding\n\nrule allowing for collateral attacks based on a lack of subject matter jurisdiction. Instead,\n\nthe opposite is true: “Even subject-matter jurisdiction . . . may not be attacked\n\ncollaterally.” Kontrick v. Ryan, 540 U.S. 443, 455 n.9 (2004) (explaining that a lack of\n\nsubject matter jurisdiction may be raised at any stage within the same civil proceeding,\n\nbut generally is not grounds for collateral challenge). As we have explained, the interest\n\nin the finality of judgments is sufficiently strong that only in exceptional circumstances\n\nwill a collateral challenge based on the lack of subject matter jurisdiction be permitted.\n\nCooper v. Productive Transp. Servs., Inc. (In re Bulldog Trucking, Inc.), 147 F.3d 347,\n\n 10\n\f352–53 (4th Cir. 1998). “Mere error in the exercise of jurisdiction” is not enough. Id. at\n\n352. Cortez does not allege exceptional circumstances under this standard, so any\n\nentitlement he has to raise a “jurisdictional” objection to his removal order in this\n\ncollateral criminal proceeding must come, if at all, by way of § 1326(d).\n\n Second, there is good reason to question Cortez’s supposition that a claim\n\ncharacterized as “jurisdictional” should be exempt from § 1326(d)’s limits, including the\n\nstatutory exhaustion requirement. Cortez proceeds by analogy to federal court subject\n\nmatter jurisdiction under Article III of the Constitution: Challenges to that jurisdiction\n\ncannot be waived or forfeited, see Brickwood Contractors, Inc. v. Datanet Eng’g, Inc.,\n\n369 F.3d 385, 390 (4th Cir. 2004) (en banc), and so, Cortez contends, he did not forfeit\n\nhis challenge to the immigration court’s authority over his removal proceeding by\n\nattending his hearing without objecting, nor by failing to raise the issue on administrative\n\nor judicial review as required under § 1326(d)(1)–(2). But an immigration court is not an\n\nArticle III court, and a removal proceeding is an agency process, not an Article III\n\nadjudication. And as the Supreme Court has instructed, we should not “reflexive[ly]\n\nexten[d] to agencies . . . the very real division between the jurisdictional and\n\nnonjurisdictional that is applicable to courts.” City of Arlington v. FCC, 569 U.S. 290,\n\n297 (2013). Rather, because the power of administrative agencies (unlike courts) is\n\nprescribed entirely by statute, any “improper[]” agency action is “ultra vires,” and there is\n\n“no principled basis for carving out some arbitrary subset” of agency errors as\n\n“jurisdictional.” Id. at 297–98. Cortez’s claim that the immigration court lacked the\n\nauthority to hear his case, in other words, is not meaningfully distinct from a more\n\n 11\n\froutine claim that an immigration court has misconstrued the INA: “[T]he question –\n\nwhether framed as an incorrect application of agency authority or an assertion of\n\nauthority not conferred – is always whether the agency has gone beyond what Congress\n\nhas permitted it to do.” Id.\n\n City of Arlington involved the degree of deference owed to an agency\n\ninterpretation of a statute bearing on its own “jurisdiction,” or statutory authority. Id. at\n\n296–97. Several courts, however, have applied City of Arlington to agency adjudications\n\n– precisely the context we face here – and concluded that purported “jurisdictional”\n\nclaims are subject to the same statutory limits, including exhaustion requirements and\n\nforfeiture rules, as other claims that an agency has acted improperly. See PGS\n\nGeophysical AS v. Iancu, 891 F.3d 1354, 1362 (Fed. Cir. 2018); 1621 Route 22 W.\n\nOperating Co., LLC v. NLRB, 825 F.3d 128, 140–41 (3d Cir. 2016). Indeed, the Ninth\n\nCircuit held as much in the immigration context years before City of Arlington, finding\n\nthat a claim that the immigration court “lacked jurisdiction” over a certain group of\n\nnoncitizens “turn[s] on a question of statutory interpretation,” so that normal rules of\n\nexhaustion and forfeiture apply. Xiao v. Barr, 979 F.2d 151, 153, 155 (1992). In short,\n\nwe have significant doubts about Cortez’s assumption that the “jurisdictional” nature of\n\nhis challenge to his administrative removal order puts him in a different and special\n\ncategory when it comes to judicial review, exempting him from § 1326(d)’s exhaustion\n\nrequirements and other limits on collateral attacks.\n\n The government, however, has not raised this objection. Instead, it accepts\n\nCortez’s premise that a proceeding conducted outside the scope of an immigration court’s\n\n 12\n\fadjudicatory authority must be deemed void on collateral review. Moreover, other courts\n\naddressing similar challenges to the “jurisdiction” of immigration courts have made the\n\nsame assumption. See, e.g., Hernandez-Perez v. Whitaker, 911 F.3d 305, 310 (6th Cir.\n\n2018) (finding that propriety of notice to appear commencing removal proceedings “can\n\nnever be forfeited or waived” (internal quotation marks omitted)). For purposes of this\n\nappeal, we need not decide conclusively whether that assumption is well-founded. As we\n\nnow explain, Cortez in any event cannot establish that his 2011 removal proceeding was\n\nconducted without adjudicatory authority, and that is enough to resolve this case.\n\n B.\n\n Even accepting Cortez’s threshold presumption – that a “jurisdictional” defect in\n\nthe notice to appear that commenced his removal proceedings would entitle him to\n\ncollaterally challenge his removal order – we find his argument lacking in two\n\nindependent respects. First, the purported defect Cortez has identified – the failure of the\n\nnotice to appear filed with the immigration court to include a date and time for his\n\nremoval hearing – does not implicate the immigration court’s adjudicatory authority or\n\n“jurisdiction.” And second, there is in any event no defect, because the regulations that\n\ngovern the filing of a notice to appear do not require inclusion of a hearing date and time.\n\n 1.\n\n We start with Cortez’s contention that any defect in the notice that commenced his\n\nremoval proceedings would deprive the immigration court of “subject matter jurisdiction”\n\nto issue a removal order. At the outset, we clarify some terminology: When it comes to\n\nadministrative agencies, the question of subject matter jurisdiction “is more appropriately\n\n 13\n\fframed” as “whether the agency actor, such as the [immigration judge] here, lacked\n\nstatutory authority to act” or acted outside its “authority to adjudicate.” United States v.\n\nArroyo, 356 F. Supp. 3d 619, 624 (W.D. Tex. 2018) (citing City of Arlington, 569 U.S. at\n\n297–98). But however the question is framed, the answer is the same: The regulation on\n\nwhich Cortez relies, 8 C.F.R. § 1003.14(a), is an internal docketing rule, not a limit on an\n\nimmigration court’s “jurisdiction” or authority to act.\n\n Exercising congressionally delegated authority, see 8 U.S.C. § 1103(g)(2), the\n\nAttorney General has promulgated regulations governing the initiation of removal\n\nproceedings. The regulation central to this case, 8 C.F.R. § 1003.14(a), provides that\n\n“[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a\n\ncharging document is filed with the Immigration Court.” “Charging document,” in turn,\n\nis defined as “the written instrument which initiates a proceeding before an Immigration\n\nJudge,” and one such document is a “[n]otice to [a]ppear.” Id. § 1003.13. Finally, a\n\nnearby regulation, 8 C.F.R. § 1003.18(b), specifies the contents of a notice to appear, and\n\n– unlike its statutory counterpart in 8 U.S.C. § 1229(a)(1) – does not require a date and\n\ntime for a subsequent removal hearing. Instead, that information must be included in a\n\nnotice to appear only “where practicable”; if not, the immigration court becomes\n\nresponsible for scheduling a hearing and providing the noncitizen with notice of the\n\n“time, place, and date.” 8 C.F.R. § 1003.18(b).\n\n The central question at this stage of our analysis is whether the term “jurisdiction”\n\nin § 1003.14(a) signals a limit on the scope of an immigration court’s adjudicatory\n\nauthority, so that a hypothetical defect in a notice to appear filed with the immigration\n\n 14\n\fcourt would deprive the court of authority to hear and decide the case. Both parties\n\nassume this to be true. And a substantial majority of courts addressing this issue have\n\ndone likewise, treating § 1003.14(a) as though it implicates an immigration court’s\n\nadjudicatory authority or “subject matter jurisdiction.” See, e.g., Ali v. Barr, 924 F.3d\n\n983, 985–86 (8th Cir. 2019); Banegas Gomez v. Barr, 922 F.3d 101, 111–12 (2d Cir.\n\n2019); Karingithi v. Whitaker, 913 F.3d 1158, 1159–62 (9th Cir. 2019); Hernandez-\n\nPerez, 911 F.3d at 310. But some courts – including, most recently, the Seventh Circuit –\n\nhave questioned this premise, and held instead that § 1003.14(a) is a procedural claim-\n\nprocessing rule without jurisdictional implications. See Ortiz-Santiago v. Barr, 924 F.3d\n\n956, 962–64 (7th Cir. 2019); see also United States v. Diaz-Martinez, __ F. Supp. 3d __,\n\n2019 WL 1940600, at *16 (E.D. Va. May 1, 2019); United States v. Monje-Garcia, No.\n\n18-cr-378-1, 2019 U.S. Dist. LEXIS 47323, at *7–9 (N.D. Ill. Jan. 15, 2019); United\n\nStates v. Rivera Lopez, 355 F. Supp. 3d 428, 438–39 (E.D. Va. 2018); Arroyo, 356 F.\n\nSupp. 3d at 624–30. We agree with those courts, and conclude that § 1003.14(a) is not a\n\njurisdictional rule.\n\n It is true, as Cortez emphasizes, that § 1003.14(a) refers to the vesting of\n\n“jurisdiction,” a word that “[p]roperly used . . . refers to the ‘classes of cases . . . falling\n\nwithin a court’s adjudicatory authority.’” Hyman v. City of Gastonia, 466 F.3d 284, 289\n\n(4th Cir. 2006) (third alteration in original) (quoting Kontrick, 540 U.S. at 455). But the\n\nterm “jurisdiction” also is used “colloquially,” United States v. George, 676 F.3d 249,\n\n259 (1st Cir. 2012), and “less than meticulous[ly],” to refer to “claim-processing rules\n\nthat do not delineate what cases . . . courts are competent to adjudicate,” Kontrick, 540\n\n 15\n\fU.S. at 454 (holding that time limit for objection in bankruptcy proceedings is not\n\njurisdictional but instead a claim-processing rule). So we cannot simply assume, with the\n\nparties, that because § 1003.14(a) refers to “jurisdiction,” it limits an immigration court’s\n\nadjudicatory authority. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 90\n\n(1998) (“Jurisdiction . . . is a word of many, too many, meanings.” (internal quotation\n\nmarks omitted)). Indeed, the Supreme Court in recent years has cautioned against\n\nprecisely that mistake, insisting on a sharper distinction between rules that are\n\njurisdictional in the formal sense and even the most “emphatic” of non-jurisdictional\n\nclaim-processing rules. Union Pac. R.R. v. Bhd. of Locomotive Eng'rs & Trainmen Gen.\n\nComm. of Adjustment, 558 U.S. 67, 81 (2009) (internal quotation marks omitted).\n\n In drawing that distinction here, we find the Supreme Court’s decision in Union\n\nPacific particularly instructive. At issue in that case was the jurisdictional status of an\n\nagency rule requiring that parties before an administrative tribunal – there, the National\n\nRailroad Adjustment Board – submit proof of settlement efforts in mediation, or\n\n“conference,” when initiating grievance proceedings. Id. at 76–80. That requirement, the\n\nCourt concluded, was not jurisdictional, in that “its satisfaction does not condition the\n\nadjudicatory authority of the Board.” Id. at 82. In reaching that determination, the Court\n\nemphasized two factors. First, the Board was granted by statute – not regulation – its\n\njurisdiction over “all” employment disputes between carriers and their employees, and\n\nthat broad grant of adjudicatory authority was not made contingent on proof of mediation\n\nefforts. Id. at 82–83 (internal quotation marks omitted). Nor, the Court noted, had\n\nCongress given the Board authority to adopt its own rules of “jurisdictional dimension.”\n\n 16\n\fId. at 83–84. And second, the function of the mediation rule was to provide “instructions\n\non party submissions,” and such “pleading instructions,” the Court concluded, are “claim-\n\nprocessing, not jurisdictional, rules.” Id. at 85.\n\n The same factors govern here, and lead to the same result. As in Union Pacific,\n\nthe immigration courts’ adjudicatory authority over removal proceedings comes not from\n\nthe agency regulation codified at 8 C.F.R. § 1003.14(a), but from Congress: It is the INA\n\nthat “explicitly and directly grants that authority,” Arroyo, 356 F. Supp. 3d at 624\n\n(emphasis omitted), providing that “[a]n immigration judge shall conduct proceedings for\n\ndeciding the inadmissibility or deportability of an alien,” 8 U.S.C. § 1229a(a)(1). “That\n\nstatutory grant of authority is the immigration judges’ ‘subject matter jurisdiction,’ and it\n\npreexisted” – by decades – § 1003.14(a)’s reference to the vesting of “jurisdiction” in\n\nimmigration court. Arroyo, 356 F. Supp. 3d at 624. And nothing about that broad and\n\nmandatory grant of adjudicatory authority, see Holland v. Pardee Coal Co., 269 F.3d\n\n424, 431 (4th Cir. 2001) (noting “general rule that ‘shall’ is mandatory”), is made\n\ncontingent on compliance with rules governing notices to appear, whether statutory, see 8\n\nU.S.C. § 1229(a) (statutory definition of notice to appear), or regulatory, see 8 C.F.R.\n\n§ 1003.18(b). See Union Pac. R.R., 558 U.S. at 83 (mediation requirement is not\n\n“moored to” statutory grant of adjudicatory authority).\n\n Nor – again paralleling Union Pacific – is there any indication that the regulation\n\nat 8 C.F.R. § 1003.14(a) was intended to implement some statutory provision giving the\n\nAttorney General the authority to “adopt rules of jurisdictional dimension.” Id. at 83–84;\n\nsee also Arroyo, 356 F. Supp. 3d at 629. To deem such a regulation “jurisdictional”\n\n 17\n\fwould be “to say that the Attorney General is ‘in effect, . . . telling himself what he may\n\nor may not do.’” Arroyo, 356 F. Supp. 3d at 629 (quoting Garcia v. Lynch, 786 F.3d 789,\n\n797 n.2 (9th Cir. 2015) (Berzon, J., concurring)). That is not the way we generally think\n\nof jurisdictional rules, which typically operate as “external constraints,” not “internal\n\nrules” that can be changed at will by an agency head. Garcia, 786 F.3d at 797 n.2\n\n(Berzon, J., concurring). Indeed, it is in part for that reason that several courts have\n\nconcluded that § 1003.14(a) cannot “properly be conceived of as jurisdictional.” Arroyo,\n\n356 F. Supp. 3d at 629 (quoting Garcia, 786 F.3d at 797 n.2 (Berzon, J., concurring)); see\n\nalso Ortiz-Santiago, 924 F.3d at 963 (“While an agency may adopt rules and processes to\n\nmaintain order, it cannot define the scope of its power to hear cases.”); Rivera Lopez, 355\n\nF. Supp. 3d at 439 (an agency’s “subject-matter jurisdiction” stems from “congressional\n\ngrants of authority,” not “a regulation promulgated by the agency itself”).\n\n There is also the question of the regulation’s function. See Union Pac. R.R., 588\n\nU.S. at 85 (describing regulation there as functioning “essentially [as] pleading\n\ninstructions”). As the Supreme Court has explained, “[a]mong the types of rules that\n\nshould not be described as jurisdictional are . . . claim-processing rules,” which “seek to\n\npromote the orderly progress of litigation by requiring that the parties take certain\n\nprocedural steps at certain specified times.” Henderson ex rel. Henderson v. Shinseki,\n\n562 U.S. 428, 435 (2011) (internal quotation marks omitted). On its face, that is\n\nprecisely what § 1003.14(a) does, laying out the procedural steps that must be taken to\n\ndocket a case before an immigration judge: A “charging document” must be filed with\n\nthe immigration court by the government – at the time § 1003.14(a) was promulgated, by\n\n 18\n\fthe Immigration and Naturalization Service (“INS”), then an agency within the\n\nDepartment of Justice – and that document must be accompanied by a certificate showing\n\nservice on the opposing party. 8 C.F.R. § 1003.14(a). 1 The text alone, in other words,\n\nwith its “emphasis on the initiation of proceedings and on service to the opposing party[,]\n\nsuggests [§ 1003.14(a)] is focused not on the immigration court’s fundamental power to\n\nact but rather on ‘requiring that the parties take certain procedural steps at certain\n\nspecified times,’” making it a claim-processing rule rather than a “genuine jurisdictional\n\nrequirement.” Rivera Lopez, 355 F. Supp. 3d at 439 (footnote omitted) (quoting\n\nHenderson, 562 U.S. at 435–36).\n\n The regulation’s history confirms that reading. Before § 1003.14(a)’s predecessor\n\nregulation was adopted in 1987, the INS had the authority both to initiate deportation\n\nproceedings and to “terminate [those] proceedings at any time prior to the actual\n\ncommencement of the hearing.” Aliens and Nationality; Rules of Procedure for\n\nProceedings Before Immigration Judges, 50 Fed. Reg. 51,693, 51,693 (Dec. 19, 1985);\n\nsee also Arroyo, 356 F. Supp. 3d at 626–27. The original version of § 1003.14(a) –\n\npromulgated as part of a “set of uniform procedural rules” for immigration courts – was\n\nintended to give immigration courts control over their own calendars, allowing for\n\n 1\n In full, § 1003.14(a) reads as follows: “Jurisdiction vests, and proceedings\nbefore an Immigration Judge commence, when a charging document is filed with the\nImmigration Court by the [INS]. The charging document must include a certificate\nshowing service on the opposing party pursuant to § 1003.32 which indicates the\nImmigration Court in which the charging document is filed. However, no charging\ndocument is required to be filed with the Immigration Court to commence bond\nproceedings pursuant to [other sections] of this chapter.”\n\n\n 19\n\f“optimal scheduling” to expedite hearings, by providing for the certainty of a filed\n\ndocument – the “charging document” – and limiting the authority of the INS to “cancel”\n\na proceeding once a charging document had been filed. 50 Fed. Reg. at 51,693; see also\n\nArroyo, 356 F. Supp. 3d at 626–27 (describing regulatory history); In re G-N-C-, 22 I. &\n\nN. Dec. 281, 284 (B.I.A. 1998) (§ 1003.14(a) “marks a clear boundary between the time\n\nprior to commencement of proceedings, where [an INS] officer has decisive power to\n\ncancel proceedings, and the time following commencement, where the [INS] officer\n\nmerely has the privilege to move for dismissal of proceedings”). The filing of a charging\n\ndocument such as a “notice to appear,” in other words, “marks an agency internal\n\nboundary,” Arroyo, 356 F. Supp. 3d at 628, that gives the immigration courts, rather than\n\nthe INS or the Department, “control over the docketing of cases,” id. at 627 (internal\n\nquotation marks omitted).\n\n We think that regulatory history makes clear, were there any doubt, that\n\n§ 1003.14(a) is “not a grant of authority” with jurisdictional implications, but something\n\nmore like a docketing rule, providing for “the orderly administration of proceedings,\n\nincluding deportation proceedings, before the immigration judges.” Id. at 628; see also\n\nRivera Lopez, 355 F. Supp. 3d at 439 (analogizing regulation to “a federal court’s local\n\nrules . . . which in no way affect the federal court’s subject-matter jurisdiction”). As the\n\nSeventh Circuit concluded, “[w]hat the [agency] was doing was establishing exactly what\n\n\n\n\n 20\n\fit takes properly to commence a case before [an immigration court]. That decision is not\n\none of jurisdictional significance.” Ortiz-Santiago, 924 F.3d at 963. 2\n\n 2.\n\n Our conclusion that § 1003.14(a) is not a jurisdictional rule by itself forecloses\n\nCortez’s attack on his 2011 removal order: Even if there were a defect in the notice to\n\nappear that was filed with the immigration court, that court did not lack adjudicatory\n\nauthority to issue its order. But Cortez also cannot succeed in his attack for a second and\n\nindependent reason: The notice to appear in question was not in fact defective.\n\n As previewed above, the question here boils down to whether a notice to appear\n\nfiled with an immigration court to commence proceedings under 8 C.F.R. § 1003.14(a)\n\nmust include the date and time of the noncitizen’s forthcoming removal hearing – which\n\nCortez’s did not. Under the regulation, proceedings are initiated with a “charging\n\ndocument,” 8 C.F.R. § 1003.14(a), which in turn is defined as one of three documents,\n\nincluding a “[n]otice to [a]ppear,” id. § 1003.13. According to Cortez, the required\n\ncontents of that “notice to appear” are controlled by 8 U.S.C. § 1229(a), a statutory\n\nprovision entitled “Notice to appear” that describes the “written notice [that] . . . shall be\n\ngiven in person” to the noncitizen, and requires such notice to specify the “time and place\n\n 2\n Cortez points to our court’s unpublished decision in Shogunle v. Holder, 336 F.\nApp’x 322 (4th Cir. 2009) (per curiam), to support his position that “jurisdiction” does\nnot vest in the immigration court until the proper notice is filed. But Shogunle simply\napplied 8 C.F.R. § 1003.14(a) without deciding whether that rule uses the word\n“jurisdiction” in the proper or colloquial sense. And in any event, “unpublished opinions\nare not binding in this [c]ircuit.” United States v. King, 673 F.3d 274, 280 n.5 (4th Cir.\n2012).\n\n\n 21\n\fat which the proceedings will be held,” id. § 1229(a)(1)(G)(i). And in its recent decision\n\nin Pereira v. Sessions, Cortez emphasizes, the Supreme Court held that a “notice to\n\nappear” that did not include a hearing time could not qualify as a “notice to appear under\n\nsection 1229(a).” 138 S. Ct. at 2114 (quoting 8 U.S.C. § 1229b(d)(1)(A)).\n\n The government disagrees, and maintains that § 1003.14(a) is satisfied by a notice\n\nto appear that complies with the separate regulatory definition set out in 8 C.F.R.\n\n§ 1003.15(b)–(c). That definition specifies what information must be “provide[d] . . . to\n\nthe Immigration Court,” id. § 1003.15(c), and unlike § 1229(a), as noted above, it does\n\nnot include on its detailed list of items the date and time of a subsequent removal hearing.\n\nInstead, date and time information must be included in a notice to appear filed under\n\n§ 1003.14(a) only “where practicable,” id. § 1003.18(b); in other cases, the immigration\n\ncourt itself is responsible for ensuring notice to a noncitizen of a hearing’s “time, place,\n\nand date,” id. And Pereira, the government finishes, has no bearing on this matter,\n\nbecause it considered only the meaning of a “notice to appear under section 1229(a),”\n\n138 S. Ct. at 2114 (quoting 8 U.S.C. § 1229b(d)(1)(A)), and did not address the\n\ncommencement of removal proceedings as governed by federal regulations.\n\n Many courts have considered this question since Periera was decided in 2018, and\n\nthey overwhelmingly have adopted the government’s position. Our sister circuits, with\n\none exception, have agreed that the required contents of the notice to appear that\n\ncommences removal proceedings under 8 C.F.R. § 1003.14(a) are those set out by\n\nregulation, not the INA. See Ali, 924 F.3d at 986; Banegas Gomez, 922 F.3d at 110–12;\n\nSantos-Santos v. Barr, 917 F.3d 486, 489–91 (6th Cir. 2019); Karingithi, 913 F.3d at\n\n 22\n\f1159–62; Hernandez-Perez, 911 F.3d at 310–15. But see Ortiz-Santiago, 924 F.3d at\n\n959–63 (indicating that notice to appear without date and time violated § 1003.14(a), but\n\nfinding issue forfeited because § 1003.14(a) is nonjurisdictional). 3 And while a\n\n“handful” of district courts have ruled for the noncitizen on this issue, “far more district\n\ncourts” have sided with the government. United States v. Gomez-Salinas, No. 2:19cr10,\n\n2019 WL 1141063, at *5 (E.D. Va. Mar. 12, 2019).\n\n We agree with the substantial majority of courts to address this issue, as well as\n\nthe district court here: It is the regulatory definition of “notice to appear,” and not\n\n§ 1229(a)’s definition, that controls in determining when a case is properly docketed with\n\nthe immigration court under 8 C.F.R. § 1003.14(a). As the district court emphasized, the\n\nregulations at 8 C.F.R. § 1003.15(b)–(c), specifying the contents of a “notice to appear”\n\nfiled to commence immigration court proceedings, do not cross-reference § 1229(a) or\n\notherwise incorporate that provision’s requirements. Instead, the regulations set out a\n\ndetailed and exhaustive list of their own, enumerating twelve separate items that must be\n\nincluded in a notice to appear filed under § 1003.14(a) – with the time and date of a\n\nfuture hearing not among them. See Santos-Santos, 917 F.3d at 490 (explaining that\n\nregulations establish their own criteria for “notice to appear” rather than incorporating\n\n\n\n\n 3\n Other circuit courts also have ruled for the government in unpublished decisions.\nThat includes our court, which has issued two per curiam opinions adopting the\ngovernment’s view. See Leonard v. Whitaker, 746 F. App’x 269, 269–70 (4th Cir. 2018);\nUnited States v. Perez-Arellano, 756 F. App’x 291, 294 (4th Cir. 2018).\n\n\n 23\n\f§ 1229(a)). 4 “If the regulations did not clearly enumerate requirements for the contents\n\nof a notice to appear” for purposes of § 1003.14(a), “we might presume they sub silentio\n\nincorporated § 1229(a)’s definition. But the plain, exhaustive list of requirements in the\n\n. . . regulations renders that presumption inapplicable here.” Karingithi, 913 F.3d at 1160\n\n(citation omitted). Indeed, reading into the regulatory list an additional requirement of\n\ntime and date information would render meaningless the regulations’ specific command\n\nthat such information must be included only “where practicable.” Id. (quoting 8 C.F.R.\n\n§ 1003.18(b)).\n\n Both text and structure compel the conclusion that it is this separate regulatory\n\ndefinition of “notice to appear,” and not the statutory definition in § 1229(a), that\n\n“control[s] when and how,” J.A. 17, a case is commenced before an immigration judge\n\nfor purposes of § 1003.14(a). First, the regulatory definition, codified at 8 C.F.R.\n\n§ 1003.15, is immediately adjacent to the docketing rule, at § 1003.14, by itself a strong\n\nindication that the regulatory definition controls. See Doe v. Cooper, 842 F.3d 833, 844\n\n(4th Cir. 2016) (describing presumption that adjacent subsections should be read\n\n 4\n Specifically, 8 C.F.R. § 1003.15(b)–(c) require that a notice to appear filed with\nan immigration court to commence proceedings include the following information: the\nnature of the proceedings, the legal authority under which the proceedings are conducted,\nthe acts or conduct of the noncitizen alleged to be in violation of law, the charges against\nthe noncitizen and the statutory provisions alleged to have been violated, notice that the\nnoncitizen may be represented by counsel, the address of the immigration court where the\nnotice to appear is being filed, a statement that the noncitizen must advise that\nimmigration court of his or her address and telephone number, the noncitizen’s name and\nany known aliases, the noncitizen’s address, the noncitizen’s registration number, the\nnoncitizen’s alleged nationality and citizenship, and the language that the noncitizen\nunderstands.\n\n\n 24\n\fharmoniously). And the text of the regulatory definition of “notice to appear” is a\n\nsubstantive match with § 1003.14(a) in a way that the statutory definition is not. Both the\n\nregulatory provisions are concerned expressly with the contents of the Department’s\n\nfiling in the immigration court: Section 1003.14(a) provides that proceedings commence\n\n“when a charging document is filed with the Immigration Court,” and § 1003.15\n\ndescribes the information that must be provided by the government “to the Immigration\n\nCourt.” The statute, in contrast, describes what “notice” must be “given” to a noncitizen\n\nin removal proceedings. 8 U.S.C. § 1229(a)(1) (requiring that a notice to appear “shall be\n\ngiven . . . to the alien”). That concern is of course important, but it also is distinct from\n\nthe question of what information must be provided to an immigration court at a case’s\n\noutset – a question on which § 1229(a) is silent. 5\n\n Our reading of the statute and regulations is consistent not only with the decisions\n\nof the many courts listed above, but also with the position taken by the Board of\n\nImmigration Appeals. In a precedential decision issued shortly after the Supreme Court\n\nruled in Pereira, the Board found that it is the regulatory definition in § 1003.15(b)–(c)\n\nthat controls the required content of a “notice to appear” to initiate proceedings before an\n\n\n 5\n Cortez suggests that the title of the statutory section in question – “Initiation of\nremoval proceedings,” 8 U.S.C. § 1229 – suggests that it establishes filing as well as\nnotice requirements. But the statutory text is clear, and clearly limited to the notice to be\nprovided to a noncitizen in removal proceedings, giving us no warrant to reason by\nimplication from the title. See Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S. Ct.\n883, 893 (2018) (while section headings may “supply cues” as to congressional intent,\nthey “cannot limit the plain meaning of a statutory text” (internal quotation marks\nomitted)).\n\n\n 25\n\fimmigration judge. In re Bermudez-Cota, 27 I. & N. Dec. 441, 443–45 (B.I.A. 2018).\n\nThat regulation, the Board explained, does not mandate that the document specify the\n\ntime and date of a future removal hearing. Id. at 445. Accordingly, the Board rejected a\n\nnoncitizen’s claim that his proceedings should be terminated because the notice to appear\n\nfiled with the immigration court omitted that information. Id. at 447. 6\n\n Cortez’s contrary argument relies primarily on the Supreme Court’s decision in\n\nPereira, holding that the requirements of 8 U.S.C. § 1229(a) are satisfied only by a\n\n“notice to appear” that includes date and time information for a removal hearing. But\n\nlike the district court, as well as other courts to consider the question, we think that\n\nreliance is misplaced. See J.A. 17–18 (distinguishing Pereira); Banegas Gomez, 922\n\nF.3d at 111 (same); Santos-Santos, 917 F.3d at 489–90 (same); Karingithi, 913 F.3d at\n\n1160–61 (same).\n\n\n\n\n 6\n The Board also found in Bermudez-Cota that the statutory definition in § 1229(a)\nis satisfied by receipt of “proper notice of the time and place of [a removal] proceeding”\nsubsequent to service of a “notice to appear” initially filed with an immigration court. 27\nI. & N. Dec. at 447; see also In re Mendoza-Hernandez, 27 I. & N. Dec. 520, 529 (B.I.A.\n2019) (two-step notice satisfies the INA’s notice requirements). We recognize that there\nis disagreement on this point, with the Ninth Circuit recently holding that a two-step\nnotice process does not comport with the statutory definition of “notice to appear” under\n§ 1229(a) and thus does not trigger the “stop-time” rule that limits the period of a\nnoncitizen’s physical presence in the United States for purposes of withholding of\nremoval relief. Lopez v. Barr, 925 F.3d 396, 405 (2019). We have no occasion to\naddress that issue here. Cortez argues only that the notice to appear filed in immigration\ncourt failed to vest that court with “jurisdiction” under 8 C.F.R. § 1003.14(a); he raises\nno independent claim that he received improper notice under 8 U.S.C. § 1229(a), nor any\nother statutory claim.\n\n\n 26\n\f At issue in Pereira was a distinct statutory question at the intersection of two INA\n\nprovisions. Under the first, providing for the so-called “stop-time” rule, the period of a\n\nnoncitizen’s continuous presence in the United States – which governs eligibility for\n\ncertain forms of relief from removal – is “deemed to end . . . when the alien is served a\n\nnotice to appear under section 1229(a).” 8 U.S.C. § 1229b(d)(1) (emphasis added). And\n\n“section 1229(a)” is the by-now familiar statutory section specifying that a “notice to\n\nappear” must include, among other information, “[t]he time and place at which [removal]\n\nproceedings will be held.” Id. § 1229(a)(1)(G)(i). In Pereira, the Court held that\n\n§ 1229b(d)(1)’s stop-time rule was not triggered by a notice to appear that omitted the\n\ndate and time of a removal hearing. “By expressly referencing § 1229(a),” the Court\n\nreasoned, the stop-time provision “specifies where to look to find out what ‘notice to\n\nappear’ means.” 138 S. Ct. at 2114. And § 1229(a), in turn, “clarifies that the type of\n\nnotice” called for under the stop-time provision, id., is one that includes “[t]he time and\n\nplace at which the [removal] proceedings will be held,” id. (alterations in original)\n\n(quoting 8 U.S.C. § 1229(a)(1)(G)(i)).\n\n That reasoning has no application here. As highlighted above, the regulatory\n\ndefinition of “notice to appear” in § 1003.14(a), unlike the stop-time provision at 8\n\nU.S.C. § 1229b(d)(1), does not cross-reference “a notice to appear under section\n\n1229(a).” The “glue that bond[ed]” the stop-time rule to § 1229(a)’s requirements in\n\nPereira, 138 S. Ct. at 2117, in other words, is missing when it comes to § 1003.14(a)’s\n\ndocketing rule. See Banegas Gomez, 922 F.3d at 111 (“[N]o such statutory glue bonds\n\nthe Immigration Court’s [authority under § 1003.14(a)] to § 1229(a)’s requirements.”).\n\n 27\n\fAnd for the reasons given above, there is nothing else to suggest that “Pereira’s\n\ndefinition of a ‘notice to appear under section 1229(a)’” would “govern the meaning of\n\n‘notice to appear’ under an unrelated regulatory provision.” Karingithi, 913 F.3d at\n\n1161. On the contrary, Pereira stressed repeatedly that its holding was “narrow,” 138 S.\n\nCt. at 2110, addressing the requirements of a notice to appear only in the “context” of the\n\nINA’s notice and stop-time provisions, id. at 2115. The filing regulations at issue in this\n\ncase were never mentioned in Pereira, and Pereira never indicated that its holding would\n\napply to the “distinct . . . regulations at issue here,” Santos-Santos, 917 F.3d at 489.\n\n Cortez has one final argument: Even if not mandated by Pereira, we should read\n\n“notice to appear” under the regulations to require the same content as a “notice to\n\nappear” under § 1229(a), either because the agency did not intend to create a system with\n\ntwo different and distinct “notices to appear,” or because whatever the agency’s intent, it\n\nlacked authority to bypass the statutory specifications for a “notice to appear.” We\n\ndisagree.\n\n With respect to the agency’s intent, Cortez points to regulatory history suggesting,\n\nhe says, that the definition at 8 C.F.R. § 1003.15(b)–(c) was promulgated in order to\n\n“implement[] the language of the [INA] indicating that the time and place of the hearing\n\nmust be on the Notice to Appear,” Inspection and Expedited Removal of Aliens, 62 Fed.\n\nReg. 444, 449 (Jan. 3, 1997). But as described above, the definition in fact does not\n\ninclude that requirement; instead, the regulations expressly reject it, providing that date\n\nand time information is to be provided in a notice to appear filed under § 1003.14(a) only\n\n“where practicable.” 8 C.F.R. § 1003.18(b). The regulations, that is, unambiguously do\n\n 28\n\fcreate a dichotomy between the notice that must be given to a noncitizen under statutory\n\n§ 1229(a) and the information that must be provided to an immigration court to\n\ncommence proceedings under regulatory § 1003.14(a). In light of that textual clarity, we\n\nneed not delve deeply into the tricky question of regulatory intent. See Tenn. Valley\n\nAuth. v. Hill, 437 U.S. 153, 184 n.29 (1978) (where text is “plain and unambiguous on its\n\nface,” courts do not look to “history as a guide to its meaning”).\n\n Cortez’s argument fares no better when it comes to the agency’s authority.\n\nAccording to Cortez, a regulatory definition for a “notice to appear” that does not\n\nincorporate § 1229(a)’s date and time requirement conflicts with the INA and is therefore\n\nvoid. But there is no conflict because, as we have explained, the regulations in question\n\nand § 1229(a) speak to different issues – filings in the immigration court to initiate\n\nproceedings, on the one hand, and notice to noncitizens of removal hearings, on the other\n\n– and the INA “says nothing about” how a case is to be docketed with the immigration\n\ncourt. Karingithi, 913 F.3d at 1160; see also Banegas Gomez, 922 F.3d at 110 (the INA\n\n“does not . . . explain when or how jurisdiction vests” in immigration courts (internal\n\nquotation marks omitted)). Because § 1003.14(a)’s docketing procedures are a product of\n\nregulation, not dictated by statute, the agency is free to define qualifying charging\n\ndocuments differently than the document described in § 1229(a) and used for other\n\npurposes.\n\n Accordingly, we hold that it is the regulatory definition of a “notice to appear” –\n\nnot the definition at 8 U.S.C. § 1229(a) – that controls whether the government properly\n\ninitiated an immigration proceeding under 8 C.F.R. § 1003.14(a). The notice to appear\n\n 29\n\ffiled with the immigration court in Cortez’s case conformed to that regulatory definition.\n\nFor that reason, as well, Cortez’s collateral attack on his 2011 removal order cannot\n\nsucceed.\n\n\n\n III.\n\n For the foregoing reasons, we affirm the judgment of the district court.\n\n AFFIRMED\n\n\n\n\n 30\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Juan CORTEZ, A/K/A Jasinto Morales, Defendant - Appellant. Steven Abrams ; Esmeralda Cabrera; Teofilo Chapa; Jeffrey S. Chase; George T. Chew; Matthew J. D'Angelo; Bruce J. Einhorn; Cecelia M. Espenoza; Noel Ferris; John F. Gossart, Jr.; Miriam Hayward; Rebecca Jamil; William P. Joyce; Carol King; Elizabeth A. Lamb ; Margaret McManus ; Charles Ernst Pazar; Laura Ramirez; John W. Richardson ; Lory Diana Rosenberg; Susan Roy; Paul William Schmidt; Denise Noonan Slavin; Andrea H. Sloan; William Peter Van Wyke; Gustavo D. Villageliu; Polly A. Webber, Amici Supporting Appellant.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-07-17\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 19-4055\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nJUAN CORTEZ, a/k/a Jasinto Morales,\\n\\n Defendant - Appellant.\\n\\n------------------------------\\n\\nSTEVEN ABRAMS; ESMERALDA CABRERA; TEOFILO CHAPA; JEFFREY\\nS. CHASE; GEORGE T. CHEW; MATTHEW J. D’ANGELO; BRUCE J.\\nEINHORN; CECELIA M. ESPENOZA; NOEL FERRIS; JOHN F. GOSSART,\\nJR.; MIRIAM HAYWARD; REBECCA JAMIL; WILLIAM P. JOYCE; CAROL\\nKING; ELIZABETH A. LAMB; MARGARET MCMANUS; CHARLES ERNST\\nPAZAR; LAURA RAMIREZ; JOHN W. RICHARDSON; LORY DIANA\\nROSENBERG; SUSAN ROY; PAUL WILLIAM SCHMIDT; DENISE\\nNOONAN SLAVIN; ANDREA H. SLOAN; WILLIAM PETER VAN WYKE;\\nGUSTAVO D. VILLAGELIU; POLLY A. WEBBER,\\n\\n Amici Supporting Appellant.\\n\\n\\nAppeal from the United States District Court for the Western District of Virginia, at\\nLynchburg. Norman K. Moon, Senior District Judge. (6:18-cr-00022-NKM-1)\\n\\n\\nArgued: May 9, 2019 Decided: July 17, 2019\\n\\n\\nBefore MOTZ, AGEE, and HARRIS, Circuit Judges.\\n\\fAffirmed by published opinion. Judge Harris wrote the opinion, in which Judge Motz\\nand Judge Agee joined.\\n\\n\\nARGUED: Erin Margaret Trodden, OFFICE OF THE FEDERAL PUBLIC\\nDEFENDER, Harrisonburg, Virginia, for Appellant. Laura Day Rottenborn, OFFICE OF\\nTHE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. ON BRIEF:\\nJuval O. Scott, Federal Public Defender, Roanoke, Virginia, Lisa M. Lorish, Assistant\\nFederal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\\nCharlottesville, Virginia, for Appellant. Thomas T. Cullen, United States Attorney,\\nOFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.\\n\\n\\n\\n\\n 2\\n\\fPAMELA HARRIS, Circuit Judge:\\n\\n Juan Cortez, a citizen of Mexico, was charged with illegally reentering the United\\n\\nStates after having been removed years prior. Cortez conceded that he was unlawfully\\n\\npresent, but argued that his initial removal order was invalid because of an alleged filing\\n\\ndefect that deprived the immigration court of “jurisdiction” over his case. The district\\n\\ncourt rejected that argument, and Cortez subsequently pleaded guilty while preserving his\\n\\nright to raise the issue on appeal.\\n\\n We affirm the district court’s order. We first hold that the premise of Cortez’s\\n\\nargument – that the purported filing defect in his case deprived the immigration court of\\n\\nauthority to enter a removal order, so that he may collaterally challenge that order in\\n\\nsubsequent criminal proceedings – is incorrect. And in any event, there in fact was no\\n\\ndefect. As the district court explained, the applicable regulations do not require that the\\n\\ninformation identified by Cortez – a date and time for a subsequent removal hearing – be\\n\\nincluded in the “notice to appear” that is filed with an immigration court to initiate\\n\\nproceedings.\\n\\n\\n\\n\\n I.\\n\\n A.\\n\\n Juan Cortez is a citizen of Mexico who has been found to be unlawfully present in\\n\\nthe United States on two occasions. The first was in 2011. On February 27 of that year,\\n\\nthe Department of Homeland Security (“Department”) served Cortez with a document\\n\\n\\n 3\\n\\flabeled “Notice to Appear.” That notice advised him, among other things, that he was\\n\\ncharged with being unlawfully present in the country, and that the Department was\\n\\ninitiating removal proceedings against him. The notice provided Cortez with the location\\n\\nof the immigration court where his removal hearing would be held, but did not provide a\\n\\ndate and time, stating only that the hearing would occur “on a date to be set at a time to\\n\\nbe set.” J.A. 10. At the same time it served Cortez with this written notice, however, the\\n\\nDepartment orally informed him of his hearing date and time.\\n\\n The Department filed the notice to appear with the immigration court on March 3,\\n\\n2011. Two weeks later, on March 17, 2011, the immigration court held a removal\\n\\nhearing, which Cortez attended via video conference. The immigration judge confirmed\\n\\nthat Cortez was unlawfully present and ordered that he be removed from the country.\\n\\nThere is no indication that Cortez challenged the contents of the notice to appear or the\\n\\nimmigration judge’s authority to order his removal, and Cortez neither administratively\\n\\nnor judicially appealed the removal order on any ground. Cortez was removed from the\\n\\nUnited States in April 2011.\\n\\n B.\\n\\n At some point following his removal, Cortez entered the United States a second\\n\\ntime, again without applying for legal admission. In September 2018, the government\\n\\nlocated Cortez in the vicinity of Lynchburg, Virginia. This time, the government\\n\\ncriminally charged Cortez with illegal reentry under 8 U.S.C. § 1326(a), which is violated\\n\\nwhen an individual who previously was “deported” or “removed” from the country\\n\\n\\n\\n 4\\n\\f“enters, attempts to enter, or is at any time found in, the United States” without legal\\n\\nauthorization.\\n\\n Before the district court, Cortez moved to dismiss the indictment against him. He\\n\\nconceded that he had entered the United States without legal authority, so that the second\\n\\nelement of his criminal charge – unlawful presence – was satisfied. But the first element\\n\\n– a previous removal from the country – was not satisfied, Cortez argued, because even\\n\\nthough he attended his 2011 immigration hearing, “the immigration judge lacked subject\\n\\nmatter jurisdiction to enter an order of removal against him.” J.A. 6. It followed, Cortez\\n\\ncontended, that his 2011 removal order was void, and could not be the basis for a charge\\n\\nunder § 1326(a).\\n\\n As a general rule, Cortez recognized, a criminal defendant may collaterally attack\\n\\na removal order in a prosecution for illegal reentry only if three conditions are met: “(1)\\n\\n[he] exhausted any administrative remedies that may have been available to seek relief\\n\\nagainst the order; (2) the deportation proceedings at which the order was issued\\n\\nimproperly deprived [him] of the opportunity for judicial review; and (3) the entry of the\\n\\norder was fundamentally unfair.” 8 U.S.C. § 1326(d). But according to Cortez, that\\n\\nframework did not apply because he was challenging the “subject matter jurisdiction” of\\n\\nthe immigration court, “an issue that cannot be waived or forfeited.” And even if it did\\n\\napply, Cortez argued, a lack of “subject matter jurisdiction” by itself satisfied all three\\n\\nprerequisites for a collateral attack under § 1326(d).\\n\\n The purported error at the heart of Cortez’s claim was the failure of the notice to\\n\\nappear filed in connection with his 2011 removal proceeding to specify a date and time\\n\\n 5\\n\\ffor his hearing. Under the regulations governing removal proceedings, Cortez explained,\\n\\nproceedings commence and “[j]urisdiction vests” with the immigration judge when a\\n\\n“charging document” is filed with the immigration court. 8 C.F.R. § 1003.14(a). The\\n\\nregulations list three documents that may qualify as “charging document[s],” including a\\n\\n“[n]otice to [a]ppear.” Id. § 1003.13. And a “notice to appear,” Cortez finished, is\\n\\ndefined in the Immigration and Nationality Act (“INA”) itself, which requires that a\\n\\n“notice to appear” include the “time and place at which the proceedings will be held,” 8\\n\\nU.S.C. § 1229(a)(1)(G)(i); see also Pereira v. Sessions, 138 S. Ct. 2105, 2114 (2018)\\n\\n(confirming that notice to appear under § 1229(a) “include[s] . . . the time and place of\\n\\nthe removal proceedings”). Putting all of that together, Cortez argued that because the\\n\\nnotice filed in his case omitted a hearing time, it did not vest the immigration court with\\n\\n“jurisdiction,” rendering his removal order a legal nullity.\\n\\n The district court disagreed. The court did not dispute the premise of Cortez’s\\n\\nargument: that a defect in the notice to appear would implicate the immigration court’s\\n\\njurisdiction and allow for a collateral attack on the removal order. But, the court held, the\\n\\nnotice to appear was not defective, because the regulatory definition of the “notice to\\n\\nappear” that vests a court with “jurisdiction” under 8 C.F.R. § 1003.14(a) does not “list\\n\\nthe time and date of the removal proceedings as required criteria.” J.A. 18 (citing 8\\n\\nC.F.R. § 1003.15(b)–(c)). Cortez, the court reasoned, was pointing to the wrong\\n\\ndefinition of “notice to appear”: The statutory provision in § 1229(a) does not address\\n\\n“the immigration court’s . . . jurisdiction over the proceeding,” but is instead concerned\\n\\nwith the separate issue of providing notice to a noncitizen in a removal proceeding. Id.\\n\\n 6\\n\\f Because Cortez had shown no defect affecting the immigration court’s\\n\\n“jurisdiction,” the court concluded, he could attack his removal order collaterally only if\\n\\nhe could satisfy the standard § 1326(d) requirements. Jumping directly to the third\\n\\nrequirement, the court held that Cortez’s removal order was not “fundamentally unfair,”\\n\\nJ.A. 20, in part because Cortez – who attended his hearing after being provided with oral\\n\\nnotice of the date and time – suffered no “actual prejudice,” J.A. 21. Accordingly, the\\n\\ndistrict court denied Cortez’s motion to dismiss the indictment against him.\\n\\n Cortez pleaded guilty less than two weeks later, and the district court sentenced\\n\\nhim to time served. Cortez’s plea agreement reserved his right to appeal the district\\n\\ncourt’s ruling on his motion to dismiss the indictment, and he timely noticed this appeal.\\n\\n\\n\\n II.\\n\\n Cortez makes the same argument on appeal as he did before the district court:\\n\\nBecause no proper notice to appear was filed in his removal proceedings, the immigration\\n\\ncourt lacked “jurisdiction,” and as a result, there is no valid removal order on which to\\n\\nbase a prosecution for illegal reentry. We review this claim, which turns on purely legal\\n\\nquestions, de novo, United States v. Hatcher, 560 F.3d 222, 224 (4th Cir. 2009), and find\\n\\nthat the district court correctly denied Cortez’s motion to dismiss.\\n\\n Before we even reach Cortez’s argument – that the immigration court lacked\\n\\n“subject matter jurisdiction” to enter his 2011 removal order because of a defect in the\\n\\nnotice to appear filed with the court – we are confronted with a threshold issue. Both\\n\\nparties assume that a successful challenge to the “subject matter jurisdiction” of an\\n\\n 7\\n\\fimmigration court would by itself be grounds for a collateral attack on a removal order,\\n\\nrelieving Cortez of the obligation to satisfy the § 1326(d) requirements that ordinarily\\n\\napply to collateral challenges. We have questions about that assumption, which we\\n\\noutline below.\\n\\n We need not resolve the issue, however, because for two independent reasons,\\n\\nCortez cannot succeed in his challenge to the immigration court’s “jurisdiction.” First,\\n\\nthe regulation on which Cortez relies, 8 C.F.R. § 1003.14(a), is a docketing rule that does\\n\\nnot implicate the immigration court’s adjudicatory authority, referred to as “subject\\n\\nmatter jurisdiction” by the parties. And in any event, we agree with the district court that\\n\\nCortez has failed to show any defect in his notice to appear under that regulation.\\n\\n A.\\n\\n At bottom, this case is about a collateral challenge to a removal order in a criminal\\n\\nproceeding for illegal reentry under 8 U.S.C. § 1326(a). The threshold question\\n\\npresented is whether Cortez may advance his argument – that the immigration court\\n\\nlacked “jurisdiction” to issue a removal order in his case – in this posture. The parties\\n\\nand the district court assumed that Cortez’s challenge to the “subject matter jurisdiction”\\n\\nof the immigration court, if successful, necessarily would allow for a collateral attack on\\n\\nhis removal order, relieving him of the obligation to satisfy the § 1326(d) requirements\\n\\nthat ordinarily apply. But we have doubts about that assumption. And given the breadth\\n\\nof its implications – opening to collateral attack every removal order in proceedings\\n\\ncommenced by an incomplete notice, regardless of the significance of the error or the\\n\\npossibility of prejudice – we do not wish to leave it unaddressed.\\n\\n 8\\n\\f In a criminal proceeding for illegal reentry, the existence of a removal order\\n\\nusually is enough to meet the government’s burden of establishing the defendant’s prior\\n\\nremoval or deportation. United States v. Moreno-Tapia, 848 F.3d 162, 165 (4th Cir.\\n\\n2017). But there is an exception, allowing a defendant to collaterally attack a removal\\n\\norder – so that it no longer serves as a predicate for a criminal reentry charge – when\\n\\nthere was a “procedural flaw in the immigration proceeding” that prevented the\\n\\nnoncitizen from seeking review when the order was issued, thus violating his due process\\n\\nrights. Id. at 169; see also United States v. Mendoza-Lopez, 481 U.S. 828 (1987). Under\\n\\n8 U.S.C. § 1326(d), a noncitizen must make each of three showings to come within that\\n\\nexception and mount a collateral attack: that (1) he “exhausted any administrative\\n\\nremedies” available to seek relief against the removal order; (2) the removal proceedings\\n\\n“improperly deprived [him] of the opportunity for judicial review”; and (3) entry of the\\n\\norder was “fundamentally unfair.”\\n\\n It is readily apparent that Cortez cannot make any of those showings. First, Cortez\\n\\nfailed to exhaust his administrative remedies: He neither administratively appealed the\\n\\nimmigration judge’s decision nor provided any explanation for why he could not do so.\\n\\nSecond, Cortez failed to show that the alleged defect in his proceeding – the absence of a\\n\\nhearing date on the notice filed with the immigration court – somehow deprived him of\\n\\nthe opportunity for judicial review of a removal proceeding of which he had actual notice\\n\\nand in which he actively participated. Finally, Cortez cannot establish “fundamental\\n\\nunfairness,” which requires that “but for the errors complained of, there was a reasonable\\n\\nprobability that he would not have been deported,” United States v. El Shami, 434 F.3d\\n\\n 9\\n\\f659, 665 (4th Cir. 2005). Cortez was promptly provided with oral notice of the date and\\n\\ntime of his hearing, which, again, he attended, and there is no reason to believe that the\\n\\nhearing would have proceeded any differently, much less resulted in a different outcome,\\n\\nhad the notice docketed with the immigration court also provided the same date and time\\n\\ninformation.\\n\\n Thus, Cortez may proceed with his collateral attack only if there is some\\n\\nexception-to-the-exception that would allow him to bypass these normal requirements.\\n\\nCortez argues that there is just such an exception: If he is correct that a defect in the\\n\\nnotice to appear filed with the immigration court to commence his proceedings deprived\\n\\nthe immigration court of “jurisdiction” under 8 C.F.R. § 1003.14(a), then his removal\\n\\norder was void ab initio and necessarily subject to collateral challenge. But Cortez\\n\\nprovides scant authority for that theory, and we question whether he has framed the issue\\n\\ncorrectly.\\n\\n First, contrary to what seems to be Cortez’s assumption, there is no freestanding\\n\\nrule allowing for collateral attacks based on a lack of subject matter jurisdiction. Instead,\\n\\nthe opposite is true: “Even subject-matter jurisdiction . . . may not be attacked\\n\\ncollaterally.” Kontrick v. Ryan, 540 U.S. 443, 455 n.9 (2004) (explaining that a lack of\\n\\nsubject matter jurisdiction may be raised at any stage within the same civil proceeding,\\n\\nbut generally is not grounds for collateral challenge). As we have explained, the interest\\n\\nin the finality of judgments is sufficiently strong that only in exceptional circumstances\\n\\nwill a collateral challenge based on the lack of subject matter jurisdiction be permitted.\\n\\nCooper v. Productive Transp. Servs., Inc. (In re Bulldog Trucking, Inc.), 147 F.3d 347,\\n\\n 10\\n\\f352–53 (4th Cir. 1998). “Mere error in the exercise of jurisdiction” is not enough. Id. at\\n\\n352. Cortez does not allege exceptional circumstances under this standard, so any\\n\\nentitlement he has to raise a “jurisdictional” objection to his removal order in this\\n\\ncollateral criminal proceeding must come, if at all, by way of § 1326(d).\\n\\n Second, there is good reason to question Cortez’s supposition that a claim\\n\\ncharacterized as “jurisdictional” should be exempt from § 1326(d)’s limits, including the\\n\\nstatutory exhaustion requirement. Cortez proceeds by analogy to federal court subject\\n\\nmatter jurisdiction under Article III of the Constitution: Challenges to that jurisdiction\\n\\ncannot be waived or forfeited, see Brickwood Contractors, Inc. v. Datanet Eng’g, Inc.,\\n\\n369 F.3d 385, 390 (4th Cir. 2004) (en banc), and so, Cortez contends, he did not forfeit\\n\\nhis challenge to the immigration court’s authority over his removal proceeding by\\n\\nattending his hearing without objecting, nor by failing to raise the issue on administrative\\n\\nor judicial review as required under § 1326(d)(1)–(2). But an immigration court is not an\\n\\nArticle III court, and a removal proceeding is an agency process, not an Article III\\n\\nadjudication. And as the Supreme Court has instructed, we should not “reflexive[ly]\\n\\nexten[d] to agencies . . . the very real division between the jurisdictional and\\n\\nnonjurisdictional that is applicable to courts.” City of Arlington v. FCC, 569 U.S. 290,\\n\\n297 (2013). Rather, because the power of administrative agencies (unlike courts) is\\n\\nprescribed entirely by statute, any “improper[]” agency action is “ultra vires,” and there is\\n\\n“no principled basis for carving out some arbitrary subset” of agency errors as\\n\\n“jurisdictional.” Id. at 297–98. Cortez’s claim that the immigration court lacked the\\n\\nauthority to hear his case, in other words, is not meaningfully distinct from a more\\n\\n 11\\n\\froutine claim that an immigration court has misconstrued the INA: “[T]he question –\\n\\nwhether framed as an incorrect application of agency authority or an assertion of\\n\\nauthority not conferred – is always whether the agency has gone beyond what Congress\\n\\nhas permitted it to do.” Id.\\n\\n City of Arlington involved the degree of deference owed to an agency\\n\\ninterpretation of a statute bearing on its own “jurisdiction,” or statutory authority. Id. at\\n\\n296–97. Several courts, however, have applied City of Arlington to agency adjudications\\n\\n– precisely the context we face here – and concluded that purported “jurisdictional”\\n\\nclaims are subject to the same statutory limits, including exhaustion requirements and\\n\\nforfeiture rules, as other claims that an agency has acted improperly. See PGS\\n\\nGeophysical AS v. Iancu, 891 F.3d 1354, 1362 (Fed. Cir. 2018); 1621 Route 22 W.\\n\\nOperating Co., LLC v. NLRB, 825 F.3d 128, 140–41 (3d Cir. 2016). Indeed, the Ninth\\n\\nCircuit held as much in the immigration context years before City of Arlington, finding\\n\\nthat a claim that the immigration court “lacked jurisdiction” over a certain group of\\n\\nnoncitizens “turn[s] on a question of statutory interpretation,” so that normal rules of\\n\\nexhaustion and forfeiture apply. Xiao v. Barr, 979 F.2d 151, 153, 155 (1992). In short,\\n\\nwe have significant doubts about Cortez’s assumption that the “jurisdictional” nature of\\n\\nhis challenge to his administrative removal order puts him in a different and special\\n\\ncategory when it comes to judicial review, exempting him from § 1326(d)’s exhaustion\\n\\nrequirements and other limits on collateral attacks.\\n\\n The government, however, has not raised this objection. Instead, it accepts\\n\\nCortez’s premise that a proceeding conducted outside the scope of an immigration court’s\\n\\n 12\\n\\fadjudicatory authority must be deemed void on collateral review. Moreover, other courts\\n\\naddressing similar challenges to the “jurisdiction” of immigration courts have made the\\n\\nsame assumption. See, e.g., Hernandez-Perez v. Whitaker, 911 F.3d 305, 310 (6th Cir.\\n\\n2018) (finding that propriety of notice to appear commencing removal proceedings “can\\n\\nnever be forfeited or waived” (internal quotation marks omitted)). For purposes of this\\n\\nappeal, we need not decide conclusively whether that assumption is well-founded. As we\\n\\nnow explain, Cortez in any event cannot establish that his 2011 removal proceeding was\\n\\nconducted without adjudicatory authority, and that is enough to resolve this case.\\n\\n B.\\n\\n Even accepting Cortez’s threshold presumption – that a “jurisdictional” defect in\\n\\nthe notice to appear that commenced his removal proceedings would entitle him to\\n\\ncollaterally challenge his removal order – we find his argument lacking in two\\n\\nindependent respects. First, the purported defect Cortez has identified – the failure of the\\n\\nnotice to appear filed with the immigration court to include a date and time for his\\n\\nremoval hearing – does not implicate the immigration court’s adjudicatory authority or\\n\\n“jurisdiction.” And second, there is in any event no defect, because the regulations that\\n\\ngovern the filing of a notice to appear do not require inclusion of a hearing date and time.\\n\\n 1.\\n\\n We start with Cortez’s contention that any defect in the notice that commenced his\\n\\nremoval proceedings would deprive the immigration court of “subject matter jurisdiction”\\n\\nto issue a removal order. At the outset, we clarify some terminology: When it comes to\\n\\nadministrative agencies, the question of subject matter jurisdiction “is more appropriately\\n\\n 13\\n\\fframed” as “whether the agency actor, such as the [immigration judge] here, lacked\\n\\nstatutory authority to act” or acted outside its “authority to adjudicate.” United States v.\\n\\nArroyo, 356 F. Supp. 3d 619, 624 (W.D. Tex. 2018) (citing City of Arlington, 569 U.S. at\\n\\n297–98). But however the question is framed, the answer is the same: The regulation on\\n\\nwhich Cortez relies, 8 C.F.R. § 1003.14(a), is an internal docketing rule, not a limit on an\\n\\nimmigration court’s “jurisdiction” or authority to act.\\n\\n Exercising congressionally delegated authority, see 8 U.S.C. § 1103(g)(2), the\\n\\nAttorney General has promulgated regulations governing the initiation of removal\\n\\nproceedings. The regulation central to this case, 8 C.F.R. § 1003.14(a), provides that\\n\\n“[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a\\n\\ncharging document is filed with the Immigration Court.” “Charging document,” in turn,\\n\\nis defined as “the written instrument which initiates a proceeding before an Immigration\\n\\nJudge,” and one such document is a “[n]otice to [a]ppear.” Id. § 1003.13. Finally, a\\n\\nnearby regulation, 8 C.F.R. § 1003.18(b), specifies the contents of a notice to appear, and\\n\\n– unlike its statutory counterpart in 8 U.S.C. § 1229(a)(1) – does not require a date and\\n\\ntime for a subsequent removal hearing. Instead, that information must be included in a\\n\\nnotice to appear only “where practicable”; if not, the immigration court becomes\\n\\nresponsible for scheduling a hearing and providing the noncitizen with notice of the\\n\\n“time, place, and date.” 8 C.F.R. § 1003.18(b).\\n\\n The central question at this stage of our analysis is whether the term “jurisdiction”\\n\\nin § 1003.14(a) signals a limit on the scope of an immigration court’s adjudicatory\\n\\nauthority, so that a hypothetical defect in a notice to appear filed with the immigration\\n\\n 14\\n\\fcourt would deprive the court of authority to hear and decide the case. Both parties\\n\\nassume this to be true. And a substantial majority of courts addressing this issue have\\n\\ndone likewise, treating § 1003.14(a) as though it implicates an immigration court’s\\n\\nadjudicatory authority or “subject matter jurisdiction.” See, e.g., Ali v. Barr, 924 F.3d\\n\\n983, 985–86 (8th Cir. 2019); Banegas Gomez v. Barr, 922 F.3d 101, 111–12 (2d Cir.\\n\\n2019); Karingithi v. Whitaker, 913 F.3d 1158, 1159–62 (9th Cir. 2019); Hernandez-\\n\\nPerez, 911 F.3d at 310. But some courts – including, most recently, the Seventh Circuit –\\n\\nhave questioned this premise, and held instead that § 1003.14(a) is a procedural claim-\\n\\nprocessing rule without jurisdictional implications. See Ortiz-Santiago v. Barr, 924 F.3d\\n\\n956, 962–64 (7th Cir. 2019); see also United States v. Diaz-Martinez, __ F. Supp. 3d __,\\n\\n2019 WL 1940600, at *16 (E.D. Va. May 1, 2019); United States v. Monje-Garcia, No.\\n\\n18-cr-378-1, 2019 U.S. Dist. LEXIS 47323, at *7–9 (N.D. Ill. Jan. 15, 2019); United\\n\\nStates v. Rivera Lopez, 355 F. Supp. 3d 428, 438–39 (E.D. Va. 2018); Arroyo, 356 F.\\n\\nSupp. 3d at 624–30. We agree with those courts, and conclude that § 1003.14(a) is not a\\n\\njurisdictional rule.\\n\\n It is true, as Cortez emphasizes, that § 1003.14(a) refers to the vesting of\\n\\n“jurisdiction,” a word that “[p]roperly used . . . refers to the ‘classes of cases . . . falling\\n\\nwithin a court’s adjudicatory authority.’” Hyman v. City of Gastonia, 466 F.3d 284, 289\\n\\n(4th Cir. 2006) (third alteration in original) (quoting Kontrick, 540 U.S. at 455). But the\\n\\nterm “jurisdiction” also is used “colloquially,” United States v. George, 676 F.3d 249,\\n\\n259 (1st Cir. 2012), and “less than meticulous[ly],” to refer to “claim-processing rules\\n\\nthat do not delineate what cases . . . courts are competent to adjudicate,” Kontrick, 540\\n\\n 15\\n\\fU.S. at 454 (holding that time limit for objection in bankruptcy proceedings is not\\n\\njurisdictional but instead a claim-processing rule). So we cannot simply assume, with the\\n\\nparties, that because § 1003.14(a) refers to “jurisdiction,” it limits an immigration court’s\\n\\nadjudicatory authority. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 90\\n\\n(1998) (“Jurisdiction . . . is a word of many, too many, meanings.” (internal quotation\\n\\nmarks omitted)). Indeed, the Supreme Court in recent years has cautioned against\\n\\nprecisely that mistake, insisting on a sharper distinction between rules that are\\n\\njurisdictional in the formal sense and even the most “emphatic” of non-jurisdictional\\n\\nclaim-processing rules. Union Pac. R.R. v. Bhd. of Locomotive Eng'rs & Trainmen Gen.\\n\\nComm. of Adjustment, 558 U.S. 67, 81 (2009) (internal quotation marks omitted).\\n\\n In drawing that distinction here, we find the Supreme Court’s decision in Union\\n\\nPacific particularly instructive. At issue in that case was the jurisdictional status of an\\n\\nagency rule requiring that parties before an administrative tribunal – there, the National\\n\\nRailroad Adjustment Board – submit proof of settlement efforts in mediation, or\\n\\n“conference,” when initiating grievance proceedings. Id. at 76–80. That requirement, the\\n\\nCourt concluded, was not jurisdictional, in that “its satisfaction does not condition the\\n\\nadjudicatory authority of the Board.” Id. at 82. In reaching that determination, the Court\\n\\nemphasized two factors. First, the Board was granted by statute – not regulation – its\\n\\njurisdiction over “all” employment disputes between carriers and their employees, and\\n\\nthat broad grant of adjudicatory authority was not made contingent on proof of mediation\\n\\nefforts. Id. at 82–83 (internal quotation marks omitted). Nor, the Court noted, had\\n\\nCongress given the Board authority to adopt its own rules of “jurisdictional dimension.”\\n\\n 16\\n\\fId. at 83–84. And second, the function of the mediation rule was to provide “instructions\\n\\non party submissions,” and such “pleading instructions,” the Court concluded, are “claim-\\n\\nprocessing, not jurisdictional, rules.” Id. at 85.\\n\\n The same factors govern here, and lead to the same result. As in Union Pacific,\\n\\nthe immigration courts’ adjudicatory authority over removal proceedings comes not from\\n\\nthe agency regulation codified at 8 C.F.R. § 1003.14(a), but from Congress: It is the INA\\n\\nthat “explicitly and directly grants that authority,” Arroyo, 356 F. Supp. 3d at 624\\n\\n(emphasis omitted), providing that “[a]n immigration judge shall conduct proceedings for\\n\\ndeciding the inadmissibility or deportability of an alien,” 8 U.S.C. § 1229a(a)(1). “That\\n\\nstatutory grant of authority is the immigration judges’ ‘subject matter jurisdiction,’ and it\\n\\npreexisted” – by decades – § 1003.14(a)’s reference to the vesting of “jurisdiction” in\\n\\nimmigration court. Arroyo, 356 F. Supp. 3d at 624. And nothing about that broad and\\n\\nmandatory grant of adjudicatory authority, see Holland v. Pardee Coal Co., 269 F.3d\\n\\n424, 431 (4th Cir. 2001) (noting “general rule that ‘shall’ is mandatory”), is made\\n\\ncontingent on compliance with rules governing notices to appear, whether statutory, see 8\\n\\nU.S.C. § 1229(a) (statutory definition of notice to appear), or regulatory, see 8 C.F.R.\\n\\n§ 1003.18(b). See Union Pac. R.R., 558 U.S. at 83 (mediation requirement is not\\n\\n“moored to” statutory grant of adjudicatory authority).\\n\\n Nor – again paralleling Union Pacific – is there any indication that the regulation\\n\\nat 8 C.F.R. § 1003.14(a) was intended to implement some statutory provision giving the\\n\\nAttorney General the authority to “adopt rules of jurisdictional dimension.” Id. at 83–84;\\n\\nsee also Arroyo, 356 F. Supp. 3d at 629. To deem such a regulation “jurisdictional”\\n\\n 17\\n\\fwould be “to say that the Attorney General is ‘in effect, . . . telling himself what he may\\n\\nor may not do.’” Arroyo, 356 F. Supp. 3d at 629 (quoting Garcia v. Lynch, 786 F.3d 789,\\n\\n797 n.2 (9th Cir. 2015) (Berzon, J., concurring)). That is not the way we generally think\\n\\nof jurisdictional rules, which typically operate as “external constraints,” not “internal\\n\\nrules” that can be changed at will by an agency head. Garcia, 786 F.3d at 797 n.2\\n\\n(Berzon, J., concurring). Indeed, it is in part for that reason that several courts have\\n\\nconcluded that § 1003.14(a) cannot “properly be conceived of as jurisdictional.” Arroyo,\\n\\n356 F. Supp. 3d at 629 (quoting Garcia, 786 F.3d at 797 n.2 (Berzon, J., concurring)); see\\n\\nalso Ortiz-Santiago, 924 F.3d at 963 (“While an agency may adopt rules and processes to\\n\\nmaintain order, it cannot define the scope of its power to hear cases.”); Rivera Lopez, 355\\n\\nF. Supp. 3d at 439 (an agency’s “subject-matter jurisdiction” stems from “congressional\\n\\ngrants of authority,” not “a regulation promulgated by the agency itself”).\\n\\n There is also the question of the regulation’s function. See Union Pac. R.R., 588\\n\\nU.S. at 85 (describing regulation there as functioning “essentially [as] pleading\\n\\ninstructions”). As the Supreme Court has explained, “[a]mong the types of rules that\\n\\nshould not be described as jurisdictional are . . . claim-processing rules,” which “seek to\\n\\npromote the orderly progress of litigation by requiring that the parties take certain\\n\\nprocedural steps at certain specified times.” Henderson ex rel. Henderson v. Shinseki,\\n\\n562 U.S. 428, 435 (2011) (internal quotation marks omitted). On its face, that is\\n\\nprecisely what § 1003.14(a) does, laying out the procedural steps that must be taken to\\n\\ndocket a case before an immigration judge: A “charging document” must be filed with\\n\\nthe immigration court by the government – at the time § 1003.14(a) was promulgated, by\\n\\n 18\\n\\fthe Immigration and Naturalization Service (“INS”), then an agency within the\\n\\nDepartment of Justice – and that document must be accompanied by a certificate showing\\n\\nservice on the opposing party. 8 C.F.R. § 1003.14(a). 1 The text alone, in other words,\\n\\nwith its “emphasis on the initiation of proceedings and on service to the opposing party[,]\\n\\nsuggests [§ 1003.14(a)] is focused not on the immigration court’s fundamental power to\\n\\nact but rather on ‘requiring that the parties take certain procedural steps at certain\\n\\nspecified times,’” making it a claim-processing rule rather than a “genuine jurisdictional\\n\\nrequirement.” Rivera Lopez, 355 F. Supp. 3d at 439 (footnote omitted) (quoting\\n\\nHenderson, 562 U.S. at 435–36).\\n\\n The regulation’s history confirms that reading. Before § 1003.14(a)’s predecessor\\n\\nregulation was adopted in 1987, the INS had the authority both to initiate deportation\\n\\nproceedings and to “terminate [those] proceedings at any time prior to the actual\\n\\ncommencement of the hearing.” Aliens and Nationality; Rules of Procedure for\\n\\nProceedings Before Immigration Judges, 50 Fed. Reg. 51,693, 51,693 (Dec. 19, 1985);\\n\\nsee also Arroyo, 356 F. Supp. 3d at 626–27. The original version of § 1003.14(a) –\\n\\npromulgated as part of a “set of uniform procedural rules” for immigration courts – was\\n\\nintended to give immigration courts control over their own calendars, allowing for\\n\\n 1\\n In full, § 1003.14(a) reads as follows: “Jurisdiction vests, and proceedings\\nbefore an Immigration Judge commence, when a charging document is filed with the\\nImmigration Court by the [INS]. The charging document must include a certificate\\nshowing service on the opposing party pursuant to § 1003.32 which indicates the\\nImmigration Court in which the charging document is filed. However, no charging\\ndocument is required to be filed with the Immigration Court to commence bond\\nproceedings pursuant to [other sections] of this chapter.”\\n\\n\\n 19\\n\\f“optimal scheduling” to expedite hearings, by providing for the certainty of a filed\\n\\ndocument – the “charging document” – and limiting the authority of the INS to “cancel”\\n\\na proceeding once a charging document had been filed. 50 Fed. Reg. at 51,693; see also\\n\\nArroyo, 356 F. Supp. 3d at 626–27 (describing regulatory history); In re G-N-C-, 22 I. &\\n\\nN. Dec. 281, 284 (B.I.A. 1998) (§ 1003.14(a) “marks a clear boundary between the time\\n\\nprior to commencement of proceedings, where [an INS] officer has decisive power to\\n\\ncancel proceedings, and the time following commencement, where the [INS] officer\\n\\nmerely has the privilege to move for dismissal of proceedings”). The filing of a charging\\n\\ndocument such as a “notice to appear,” in other words, “marks an agency internal\\n\\nboundary,” Arroyo, 356 F. Supp. 3d at 628, that gives the immigration courts, rather than\\n\\nthe INS or the Department, “control over the docketing of cases,” id. at 627 (internal\\n\\nquotation marks omitted).\\n\\n We think that regulatory history makes clear, were there any doubt, that\\n\\n§ 1003.14(a) is “not a grant of authority” with jurisdictional implications, but something\\n\\nmore like a docketing rule, providing for “the orderly administration of proceedings,\\n\\nincluding deportation proceedings, before the immigration judges.” Id. at 628; see also\\n\\nRivera Lopez, 355 F. Supp. 3d at 439 (analogizing regulation to “a federal court’s local\\n\\nrules . . . which in no way affect the federal court’s subject-matter jurisdiction”). As the\\n\\nSeventh Circuit concluded, “[w]hat the [agency] was doing was establishing exactly what\\n\\n\\n\\n\\n 20\\n\\fit takes properly to commence a case before [an immigration court]. That decision is not\\n\\none of jurisdictional significance.” Ortiz-Santiago, 924 F.3d at 963. 2\\n\\n 2.\\n\\n Our conclusion that § 1003.14(a) is not a jurisdictional rule by itself forecloses\\n\\nCortez’s attack on his 2011 removal order: Even if there were a defect in the notice to\\n\\nappear that was filed with the immigration court, that court did not lack adjudicatory\\n\\nauthority to issue its order. But Cortez also cannot succeed in his attack for a second and\\n\\nindependent reason: The notice to appear in question was not in fact defective.\\n\\n As previewed above, the question here boils down to whether a notice to appear\\n\\nfiled with an immigration court to commence proceedings under 8 C.F.R. § 1003.14(a)\\n\\nmust include the date and time of the noncitizen’s forthcoming removal hearing – which\\n\\nCortez’s did not. Under the regulation, proceedings are initiated with a “charging\\n\\ndocument,” 8 C.F.R. § 1003.14(a), which in turn is defined as one of three documents,\\n\\nincluding a “[n]otice to [a]ppear,” id. § 1003.13. According to Cortez, the required\\n\\ncontents of that “notice to appear” are controlled by 8 U.S.C. § 1229(a), a statutory\\n\\nprovision entitled “Notice to appear” that describes the “written notice [that] . . . shall be\\n\\ngiven in person” to the noncitizen, and requires such notice to specify the “time and place\\n\\n 2\\n Cortez points to our court’s unpublished decision in Shogunle v. Holder, 336 F.\\nApp’x 322 (4th Cir. 2009) (per curiam), to support his position that “jurisdiction” does\\nnot vest in the immigration court until the proper notice is filed. But Shogunle simply\\napplied 8 C.F.R. § 1003.14(a) without deciding whether that rule uses the word\\n“jurisdiction” in the proper or colloquial sense. And in any event, “unpublished opinions\\nare not binding in this [c]ircuit.” United States v. King, 673 F.3d 274, 280 n.5 (4th Cir.\\n2012).\\n\\n\\n 21\\n\\fat which the proceedings will be held,” id. § 1229(a)(1)(G)(i). And in its recent decision\\n\\nin Pereira v. Sessions, Cortez emphasizes, the Supreme Court held that a “notice to\\n\\nappear” that did not include a hearing time could not qualify as a “notice to appear under\\n\\nsection 1229(a).” 138 S. Ct. at 2114 (quoting 8 U.S.C. § 1229b(d)(1)(A)).\\n\\n The government disagrees, and maintains that § 1003.14(a) is satisfied by a notice\\n\\nto appear that complies with the separate regulatory definition set out in 8 C.F.R.\\n\\n§ 1003.15(b)–(c). That definition specifies what information must be “provide[d] . . . to\\n\\nthe Immigration Court,” id. § 1003.15(c), and unlike § 1229(a), as noted above, it does\\n\\nnot include on its detailed list of items the date and time of a subsequent removal hearing.\\n\\nInstead, date and time information must be included in a notice to appear filed under\\n\\n§ 1003.14(a) only “where practicable,” id. § 1003.18(b); in other cases, the immigration\\n\\ncourt itself is responsible for ensuring notice to a noncitizen of a hearing’s “time, place,\\n\\nand date,” id. And Pereira, the government finishes, has no bearing on this matter,\\n\\nbecause it considered only the meaning of a “notice to appear under section 1229(a),”\\n\\n138 S. Ct. at 2114 (quoting 8 U.S.C. § 1229b(d)(1)(A)), and did not address the\\n\\ncommencement of removal proceedings as governed by federal regulations.\\n\\n Many courts have considered this question since Periera was decided in 2018, and\\n\\nthey overwhelmingly have adopted the government’s position. Our sister circuits, with\\n\\none exception, have agreed that the required contents of the notice to appear that\\n\\ncommences removal proceedings under 8 C.F.R. § 1003.14(a) are those set out by\\n\\nregulation, not the INA. See Ali, 924 F.3d at 986; Banegas Gomez, 922 F.3d at 110–12;\\n\\nSantos-Santos v. Barr, 917 F.3d 486, 489–91 (6th Cir. 2019); Karingithi, 913 F.3d at\\n\\n 22\\n\\f1159–62; Hernandez-Perez, 911 F.3d at 310–15. But see Ortiz-Santiago, 924 F.3d at\\n\\n959–63 (indicating that notice to appear without date and time violated § 1003.14(a), but\\n\\nfinding issue forfeited because § 1003.14(a) is nonjurisdictional). 3 And while a\\n\\n“handful” of district courts have ruled for the noncitizen on this issue, “far more district\\n\\ncourts” have sided with the government. United States v. Gomez-Salinas, No. 2:19cr10,\\n\\n2019 WL 1141063, at *5 (E.D. Va. Mar. 12, 2019).\\n\\n We agree with the substantial majority of courts to address this issue, as well as\\n\\nthe district court here: It is the regulatory definition of “notice to appear,” and not\\n\\n§ 1229(a)’s definition, that controls in determining when a case is properly docketed with\\n\\nthe immigration court under 8 C.F.R. § 1003.14(a). As the district court emphasized, the\\n\\nregulations at 8 C.F.R. § 1003.15(b)–(c), specifying the contents of a “notice to appear”\\n\\nfiled to commence immigration court proceedings, do not cross-reference § 1229(a) or\\n\\notherwise incorporate that provision’s requirements. Instead, the regulations set out a\\n\\ndetailed and exhaustive list of their own, enumerating twelve separate items that must be\\n\\nincluded in a notice to appear filed under § 1003.14(a) – with the time and date of a\\n\\nfuture hearing not among them. See Santos-Santos, 917 F.3d at 490 (explaining that\\n\\nregulations establish their own criteria for “notice to appear” rather than incorporating\\n\\n\\n\\n\\n 3\\n Other circuit courts also have ruled for the government in unpublished decisions.\\nThat includes our court, which has issued two per curiam opinions adopting the\\ngovernment’s view. See Leonard v. Whitaker, 746 F. App’x 269, 269–70 (4th Cir. 2018);\\nUnited States v. Perez-Arellano, 756 F. App’x 291, 294 (4th Cir. 2018).\\n\\n\\n 23\\n\\f§ 1229(a)). 4 “If the regulations did not clearly enumerate requirements for the contents\\n\\nof a notice to appear” for purposes of § 1003.14(a), “we might presume they sub silentio\\n\\nincorporated § 1229(a)’s definition. But the plain, exhaustive list of requirements in the\\n\\n. . . regulations renders that presumption inapplicable here.” Karingithi, 913 F.3d at 1160\\n\\n(citation omitted). Indeed, reading into the regulatory list an additional requirement of\\n\\ntime and date information would render meaningless the regulations’ specific command\\n\\nthat such information must be included only “where practicable.” Id. (quoting 8 C.F.R.\\n\\n§ 1003.18(b)).\\n\\n Both text and structure compel the conclusion that it is this separate regulatory\\n\\ndefinition of “notice to appear,” and not the statutory definition in § 1229(a), that\\n\\n“control[s] when and how,” J.A. 17, a case is commenced before an immigration judge\\n\\nfor purposes of § 1003.14(a). First, the regulatory definition, codified at 8 C.F.R.\\n\\n§ 1003.15, is immediately adjacent to the docketing rule, at § 1003.14, by itself a strong\\n\\nindication that the regulatory definition controls. See Doe v. Cooper, 842 F.3d 833, 844\\n\\n(4th Cir. 2016) (describing presumption that adjacent subsections should be read\\n\\n 4\\n Specifically, 8 C.F.R. § 1003.15(b)–(c) require that a notice to appear filed with\\nan immigration court to commence proceedings include the following information: the\\nnature of the proceedings, the legal authority under which the proceedings are conducted,\\nthe acts or conduct of the noncitizen alleged to be in violation of law, the charges against\\nthe noncitizen and the statutory provisions alleged to have been violated, notice that the\\nnoncitizen may be represented by counsel, the address of the immigration court where the\\nnotice to appear is being filed, a statement that the noncitizen must advise that\\nimmigration court of his or her address and telephone number, the noncitizen’s name and\\nany known aliases, the noncitizen’s address, the noncitizen’s registration number, the\\nnoncitizen’s alleged nationality and citizenship, and the language that the noncitizen\\nunderstands.\\n\\n\\n 24\\n\\fharmoniously). And the text of the regulatory definition of “notice to appear” is a\\n\\nsubstantive match with § 1003.14(a) in a way that the statutory definition is not. Both the\\n\\nregulatory provisions are concerned expressly with the contents of the Department’s\\n\\nfiling in the immigration court: Section 1003.14(a) provides that proceedings commence\\n\\n“when a charging document is filed with the Immigration Court,” and § 1003.15\\n\\ndescribes the information that must be provided by the government “to the Immigration\\n\\nCourt.” The statute, in contrast, describes what “notice” must be “given” to a noncitizen\\n\\nin removal proceedings. 8 U.S.C. § 1229(a)(1) (requiring that a notice to appear “shall be\\n\\ngiven . . . to the alien”). That concern is of course important, but it also is distinct from\\n\\nthe question of what information must be provided to an immigration court at a case’s\\n\\noutset – a question on which § 1229(a) is silent. 5\\n\\n Our reading of the statute and regulations is consistent not only with the decisions\\n\\nof the many courts listed above, but also with the position taken by the Board of\\n\\nImmigration Appeals. In a precedential decision issued shortly after the Supreme Court\\n\\nruled in Pereira, the Board found that it is the regulatory definition in § 1003.15(b)–(c)\\n\\nthat controls the required content of a “notice to appear” to initiate proceedings before an\\n\\n\\n 5\\n Cortez suggests that the title of the statutory section in question – “Initiation of\\nremoval proceedings,” 8 U.S.C. § 1229 – suggests that it establishes filing as well as\\nnotice requirements. But the statutory text is clear, and clearly limited to the notice to be\\nprovided to a noncitizen in removal proceedings, giving us no warrant to reason by\\nimplication from the title. See Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S. Ct.\\n883, 893 (2018) (while section headings may “supply cues” as to congressional intent,\\nthey “cannot limit the plain meaning of a statutory text” (internal quotation marks\\nomitted)).\\n\\n\\n 25\\n\\fimmigration judge. In re Bermudez-Cota, 27 I. & N. Dec. 441, 443–45 (B.I.A. 2018).\\n\\nThat regulation, the Board explained, does not mandate that the document specify the\\n\\ntime and date of a future removal hearing. Id. at 445. Accordingly, the Board rejected a\\n\\nnoncitizen’s claim that his proceedings should be terminated because the notice to appear\\n\\nfiled with the immigration court omitted that information. Id. at 447. 6\\n\\n Cortez’s contrary argument relies primarily on the Supreme Court’s decision in\\n\\nPereira, holding that the requirements of 8 U.S.C. § 1229(a) are satisfied only by a\\n\\n“notice to appear” that includes date and time information for a removal hearing. But\\n\\nlike the district court, as well as other courts to consider the question, we think that\\n\\nreliance is misplaced. See J.A. 17–18 (distinguishing Pereira); Banegas Gomez, 922\\n\\nF.3d at 111 (same); Santos-Santos, 917 F.3d at 489–90 (same); Karingithi, 913 F.3d at\\n\\n1160–61 (same).\\n\\n\\n\\n\\n 6\\n The Board also found in Bermudez-Cota that the statutory definition in § 1229(a)\\nis satisfied by receipt of “proper notice of the time and place of [a removal] proceeding”\\nsubsequent to service of a “notice to appear” initially filed with an immigration court. 27\\nI. & N. Dec. at 447; see also In re Mendoza-Hernandez, 27 I. & N. Dec. 520, 529 (B.I.A.\\n2019) (two-step notice satisfies the INA’s notice requirements). We recognize that there\\nis disagreement on this point, with the Ninth Circuit recently holding that a two-step\\nnotice process does not comport with the statutory definition of “notice to appear” under\\n§ 1229(a) and thus does not trigger the “stop-time” rule that limits the period of a\\nnoncitizen’s physical presence in the United States for purposes of withholding of\\nremoval relief. Lopez v. Barr, 925 F.3d 396, 405 (2019). We have no occasion to\\naddress that issue here. Cortez argues only that the notice to appear filed in immigration\\ncourt failed to vest that court with “jurisdiction” under 8 C.F.R. § 1003.14(a); he raises\\nno independent claim that he received improper notice under 8 U.S.C. § 1229(a), nor any\\nother statutory claim.\\n\\n\\n 26\\n\\f At issue in Pereira was a distinct statutory question at the intersection of two INA\\n\\nprovisions. Under the first, providing for the so-called “stop-time” rule, the period of a\\n\\nnoncitizen’s continuous presence in the United States – which governs eligibility for\\n\\ncertain forms of relief from removal – is “deemed to end . . . when the alien is served a\\n\\nnotice to appear under section 1229(a).” 8 U.S.C. § 1229b(d)(1) (emphasis added). And\\n\\n“section 1229(a)” is the by-now familiar statutory section specifying that a “notice to\\n\\nappear” must include, among other information, “[t]he time and place at which [removal]\\n\\nproceedings will be held.” Id. § 1229(a)(1)(G)(i). In Pereira, the Court held that\\n\\n§ 1229b(d)(1)’s stop-time rule was not triggered by a notice to appear that omitted the\\n\\ndate and time of a removal hearing. “By expressly referencing § 1229(a),” the Court\\n\\nreasoned, the stop-time provision “specifies where to look to find out what ‘notice to\\n\\nappear’ means.” 138 S. Ct. at 2114. And § 1229(a), in turn, “clarifies that the type of\\n\\nnotice” called for under the stop-time provision, id., is one that includes “[t]he time and\\n\\nplace at which the [removal] proceedings will be held,” id. (alterations in original)\\n\\n(quoting 8 U.S.C. § 1229(a)(1)(G)(i)).\\n\\n That reasoning has no application here. As highlighted above, the regulatory\\n\\ndefinition of “notice to appear” in § 1003.14(a), unlike the stop-time provision at 8\\n\\nU.S.C. § 1229b(d)(1), does not cross-reference “a notice to appear under section\\n\\n1229(a).” The “glue that bond[ed]” the stop-time rule to § 1229(a)’s requirements in\\n\\nPereira, 138 S. Ct. at 2117, in other words, is missing when it comes to § 1003.14(a)’s\\n\\ndocketing rule. See Banegas Gomez, 922 F.3d at 111 (“[N]o such statutory glue bonds\\n\\nthe Immigration Court’s [authority under § 1003.14(a)] to § 1229(a)’s requirements.”).\\n\\n 27\\n\\fAnd for the reasons given above, there is nothing else to suggest that “Pereira’s\\n\\ndefinition of a ‘notice to appear under section 1229(a)’” would “govern the meaning of\\n\\n‘notice to appear’ under an unrelated regulatory provision.” Karingithi, 913 F.3d at\\n\\n1161. On the contrary, Pereira stressed repeatedly that its holding was “narrow,” 138 S.\\n\\nCt. at 2110, addressing the requirements of a notice to appear only in the “context” of the\\n\\nINA’s notice and stop-time provisions, id. at 2115. The filing regulations at issue in this\\n\\ncase were never mentioned in Pereira, and Pereira never indicated that its holding would\\n\\napply to the “distinct . . . regulations at issue here,” Santos-Santos, 917 F.3d at 489.\\n\\n Cortez has one final argument: Even if not mandated by Pereira, we should read\\n\\n“notice to appear” under the regulations to require the same content as a “notice to\\n\\nappear” under § 1229(a), either because the agency did not intend to create a system with\\n\\ntwo different and distinct “notices to appear,” or because whatever the agency’s intent, it\\n\\nlacked authority to bypass the statutory specifications for a “notice to appear.” We\\n\\ndisagree.\\n\\n With respect to the agency’s intent, Cortez points to regulatory history suggesting,\\n\\nhe says, that the definition at 8 C.F.R. § 1003.15(b)–(c) was promulgated in order to\\n\\n“implement[] the language of the [INA] indicating that the time and place of the hearing\\n\\nmust be on the Notice to Appear,” Inspection and Expedited Removal of Aliens, 62 Fed.\\n\\nReg. 444, 449 (Jan. 3, 1997). But as described above, the definition in fact does not\\n\\ninclude that requirement; instead, the regulations expressly reject it, providing that date\\n\\nand time information is to be provided in a notice to appear filed under § 1003.14(a) only\\n\\n“where practicable.” 8 C.F.R. § 1003.18(b). The regulations, that is, unambiguously do\\n\\n 28\\n\\fcreate a dichotomy between the notice that must be given to a noncitizen under statutory\\n\\n§ 1229(a) and the information that must be provided to an immigration court to\\n\\ncommence proceedings under regulatory § 1003.14(a). In light of that textual clarity, we\\n\\nneed not delve deeply into the tricky question of regulatory intent. See Tenn. Valley\\n\\nAuth. v. Hill, 437 U.S. 153, 184 n.29 (1978) (where text is “plain and unambiguous on its\\n\\nface,” courts do not look to “history as a guide to its meaning”).\\n\\n Cortez’s argument fares no better when it comes to the agency’s authority.\\n\\nAccording to Cortez, a regulatory definition for a “notice to appear” that does not\\n\\nincorporate § 1229(a)’s date and time requirement conflicts with the INA and is therefore\\n\\nvoid. But there is no conflict because, as we have explained, the regulations in question\\n\\nand § 1229(a) speak to different issues – filings in the immigration court to initiate\\n\\nproceedings, on the one hand, and notice to noncitizens of removal hearings, on the other\\n\\n– and the INA “says nothing about” how a case is to be docketed with the immigration\\n\\ncourt. Karingithi, 913 F.3d at 1160; see also Banegas Gomez, 922 F.3d at 110 (the INA\\n\\n“does not . . . explain when or how jurisdiction vests” in immigration courts (internal\\n\\nquotation marks omitted)). Because § 1003.14(a)’s docketing procedures are a product of\\n\\nregulation, not dictated by statute, the agency is free to define qualifying charging\\n\\ndocuments differently than the document described in § 1229(a) and used for other\\n\\npurposes.\\n\\n Accordingly, we hold that it is the regulatory definition of a “notice to appear” –\\n\\nnot the definition at 8 U.S.C. § 1229(a) – that controls whether the government properly\\n\\ninitiated an immigration proceeding under 8 C.F.R. § 1003.14(a). The notice to appear\\n\\n 29\\n\\ffiled with the immigration court in Cortez’s case conformed to that regulatory definition.\\n\\nFor that reason, as well, Cortez’s collateral attack on his 2011 removal order cannot\\n\\nsucceed.\\n\\n\\n\\n III.\\n\\n For the foregoing reasons, we affirm the judgment of the district court.\\n\\n AFFIRMED\\n\\n\\n\\n\\n 30\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2950,"cells":{"id":{"kind":"number","value":4640772,"string":"4,640,772"},"name":{"kind":"string","value":"Therl TAYLOR, Plaintiff - Appellant, v. Virginia GRUBBS; Pamala Smith ; Ann Hallman; Sherman Anderson, Present Chief; Valerie Jones; Supervisor Randall Williams; John Pate; Allendale Fairfax County-City, Defendants - Appellees. Therl Taylor, Plaintiff - Appellant, v. John Pate; Randall Williams; Teresa Ramsey; Connie Buehner; LT. Carter, SCDC; SCDC; Jane DOE, Employees; John DOE, Employees; Pamela Smith, AI Grievance Coordinator, Defendants - Appellees. Therl Taylor, Plaintiff - Appellant, v. Walter Worrick; Virginia Grubbs; Pamela Smith; SCDC LT MR C Hartley; John Pate; Bryan Stirling; Jane Does; John Does, Defendants - Appellees."},"name_abbreviation":{"kind":"string","value":"Therl Taylor v. Virginia Grubbs"},"decision_date":{"kind":"string","value":"2019-07-18"},"docket_number":{"kind":"string","value":"17-6374; 17-6375; 17-6376"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Motz, Wynn, Richardson\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888962/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"040dissent\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888963/\", \"author_raw\": \"\"}, {\"author\": \"DIANA GRIBBON MOTZ, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 17-6374\\n\\n\\nTHERL TAYLOR,\\n\\n Plaintiff – Appellant,\\n\\n v.\\n\\nVIRGINIA GRUBBS; PAMALA SMITH; ANN HALLMAN; SHERMAN\\nANDERSON, Present Chief; VALERIE JONES; SUPERVISOR RANDALL\\nWILLIAMS; JOHN PATE; ALLENDALE FAIRFAX COUNTY-CITY,\\n\\n Defendants – Appellees.\\n\\n\\n\\n No. 17-6375\\n\\n\\nTHERL TAYLOR,\\n\\n Plaintiff – Appellant,\\n\\n v.\\n\\nJOHN PATE; RANDALL WILLIAMS; TERESA RAMSEY; CONNIE\\nBUEHNER; LT. CARTER, SCDC; SCDC; JANE DOE, Employees; JOHN DOE,\\nEmployees; PAMELA SMITH, AI Grievance Coordinator,\\n\\n Defendants – Appellees.\\n\\n\\n\\n No. 17-6376\\n\\nTHERL TAYLOR,\\n\\n Plaintiff – Appellant,\\n\\n v.\\n\\nWALTER WORRICK; VIRGINIA GRUBBS; PAMELA SMITH; SCDC LT MR C\\nHARTLEY; JOHN PATE; BRYAN STIRLING; JANE DOES; JOHN DOES,\\n\\n Defendants – Appellees.\\n\\n\\nAppeals from the United States District Court for the District of South Carolina, at\\nCharleston. Richard Mark Gergel, District Judge. (2:15-cv-04958-RMG; 2:16-cv-02115-\\nRMG; 2:16-cv-03084-RMG)\\n\\n\\nArgued: May 8, 2019 Decided: July 18, 2019\\n\\n\\nBefore MOTZ, WYNN, and RICHARDSON, Circuit Judges.\\n\\n\\nMotions granted by published opinion. Judge Motz wrote the opinion, in which Judge\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4418025/\", \"author_raw\": \"DIANA GRIBBON MOTZ, Circuit Judge:\"}, {\"author\": \"Wynn joined. Judge Richardson wrote a dissenting\", \"type\": \"dissent\", \"text\": \"Wynn joined. Judge Richardson wrote a dissenting opinion.\\n\\n\\nARGUED: Adam B. McCoy, WAKE FOREST UNIVERSITY SCHOOL OF LAW,\\nWinston-Salem, North Carolina, for Appellant. Claude Eugene Hardin, Jr., THE MCKAY\\nFIRM, PA, Columbia, South Carolina, for Appellees. ON BRIEF: John J. Korzen,\\nDirector, Hanna E. Monson, Third-Year Law Student, Appellate Advocacy Clinic, WAKE\\nFOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina, for\\nAppellant. Daniel R. Settana, Jr., THE MCKAY FIRM, PA, Columbia, South Carolina,\\nfor Appellees.\\n\\n\\n\\n\\n 2\\n\\nDIANA GRIBBON MOTZ, Circuit Judge:\\n\\n Ordinarily, a federal plaintiff lacking sufficient funds may proceed in forma\\n\\npauperis, that is, without prepaying the filing fees, when filing a complaint or an appeal in\\n\\nfederal court. But under the Prison Litigation Reform Act (“PLRA”), a court may not grant\\n\\nin forma pauperis status to a prisoner if he “has, on 3 or more prior occasions, while\\n\\nincarcerated or detained in any facility, brought an action or appeal in a court of the United\\n\\nStates that was dismissed on the grounds that it is frivolous, malicious, or fails to state a\\n\\nclaim upon which relief may be granted.” 28 U.S.C. § 1915(g) (the “three-strikes rule”).\\n\\nThis case requires us to decide whether an indigent prisoner may proceed in forma pauperis\\n\\non appeal from the order assigning his third strike. For the reasons that follow, we conclude\\n\\nthat he can and so grant his motions to do so.\\n\\n\\n\\n I.\\n\\n A.\\n\\n Recognizing the importance of providing equal access to federal courts, Congress\\n\\nhas provided that indigent prisoners may, before a court rules on the merits of a case, seek\\n\\nto proceed “without prepayment of fees or security therefor.” 28 U.S.C. § 1915(a)(1).\\n\\nPrisoners who do so do not avoid paying the filing fees entirely. Rather, the statute\\n\\n“requires that a prisoner (1) pay an initial partial filing fee based on the funds available in\\n\\nthe prisoner’s account; and (2) make monthly payments of ‘20 percent of the preceding\\n\\nmonth’s income credited to the prisoner’s account.’” Tolbert v. Stevenson, 635 F.3d 646,\\n\\n648 n.1 (4th Cir. 2011) (quoting 28 U.S.C. § 1915(b)(1)–(2)).\\n\\n\\n 3\\n\\n Even so, Congress has long recognized the potential for abuse in this system, which\\n\\nreduces the immediate “economic incentive to refrain from filing frivolous, malicious, or\\n\\nrepetitive lawsuits.” Coleman v. Tollefson, 135 S. Ct. 1759, 1762 (2015) (internal\\n\\nquotation marks omitted). Concluding this was especially true for prisoner suits, Congress\\n\\n“enacted a variety of reforms designed to filter out the bad claims and facilitate\\n\\nconsideration of the good” through the Prison Litigation Reform Act of 1996 (“PLRA”).\\n\\nJones v. Bock, 549 U.S. 199, 204 (2007); see also Coleman, 135 S. Ct. at 1762.\\n\\n The “three-strikes rule” is one such reform. It provides that a prisoner may not bring\\n\\na civil action or an appeal in forma pauperis if he has had three prior actions or appeals\\n\\ndismissed as frivolous, as malicious, or for failure to state a claim upon which relief may\\n\\nbe granted. 28 U.S.C. § 1915(g). In this case, we must decide whether an indigent prisoner\\n\\nmay proceed in forma pauperis on appeal from the very order assigning his third strike.\\n\\n B.\\n\\n Therl Taylor, an indigent state prisoner, filed three pro se civil rights actions in the\\n\\nDistrict of South Carolina against various employees of the South Carolina Department of\\n\\nCorrections and the City of Allendale (collectively, “Appellees”).\\n\\n In the first action, filed on December 14, 2015, Taylor alleged that seven employees\\n\\nof the South Carolina Department of Corrections and the City of Allendale had denied him\\n\\naccess to the prison’s mailroom services, interfering with his ability to petition the courts.\\n\\nIn the second action, filed against a similar group of corrections officials on June 20, 2016,\\n\\nTaylor alleged that the officials violated his rights by transferring him to a new unit. He\\n\\nalso made general allegations of “corruption, drug smuggling, [and] high rates of violence.”\\n\\n\\n 4\\n\\nTaylor filed a third action on September 8, 2016, again alleging that corrections officials\\n\\nhad improperly transferred him to another unit and confiscated his personal belongings. In\\n\\na set of three orders issued on the same day, the district court dismissed each complaint for\\n\\nfailure to state a claim and so assigned Taylor three “strikes” under § 1915(g).\\n\\n Taylor timely filed a pro se notice of appeal in each case, again on the same day,\\n\\nand moved in each to proceed in forma pauperis, which Appellees opposed. We\\n\\nconsolidated the three cases, provisionally granted Taylor in forma pauperis status, and\\n\\nappointed counsel for him to address the following issue: “Whether trial court dismissal\\n\\nonly qualifies as a strike for PLRA purposes if it occurred in a different lawsuit.”\\n\\n\\n\\n II.\\n\\n We considered the exact issue presented here in Henslee v. Keller, 681 F.3d 538\\n\\n(4th Cir. 2012). There, as here, a state prisoner appealed the district court’s dismissal of\\n\\nhis third qualifying complaint for failure to state a claim and moved to proceed in forma\\n\\npauperis on appeal. Id. at 539. Adopting the view then widely held by other circuits, we\\n\\nconcluded that the prisoner could so proceed because “counting the district court’s\\n\\ndismissal as the third strike under [§ 1915(g)] would effectively insulate the dismissal from\\n\\nappellate review.” Id. at 539, 541–42. 1\\n\\n\\n 1\\n Appellees agree that at that time, “there was no significant circuit split” on this\\nquestion. See, e.g., Henslee, 681 F.3d at 541–42; Thompson v. DEA, 492 F.3d 428, 432–\\n33 (D.C. Cir. 2007); Pigg v. FBI, 106 F.3d 1497, 1498 (10th Cir. 1997) (per curiam);\\nAdepegba v. Hammons, 103 F.3d 383, 387–88 (5th Cir. 1996). Even the Seventh Circuit,\\nwhich had interpreted the statute in a way that appeared to bar an in forma pauperis appeal\\n\\n\\n 5\\n\\n To reach this conclusion, we first found the term “occasion” in § 1915(g) to be\\n\\nambiguous. Id. at 542. We then turned to the statute’s history and purpose, which\\n\\n“indicate[d] that Congress’s intention was to limit frivolous prisoner litigation without\\n\\npreventing meritorious claims from being heard.” Id. at 543. Against this backdrop, we\\n\\nobserved that denying in forma pauperis status in these circumstances would “freeze out\\n\\nmeritorious claims or ossify district court errors by effectively preventing the appellate\\n\\ncourts from performing their function.” Id. (internal quotation marks omitted). Because\\n\\nthe statute’s history and purpose evidenced no intent to do so, we held that “the dismissal\\n\\nof the underlying claim” did not “act as a strike to preclude [in forma pauperis] status on\\n\\nits own appeal.” Id.\\n\\n Three years after we decided Henslee, the Supreme Court considered a related but\\n\\nfactually distinct issue: whether a prisoner whose third strike was pending on appeal could\\n\\nfile “several additional actions” in forma pauperis. Coleman, 135 S. Ct. at 1761 (emphasis\\n\\nadded). In holding that a prisoner could not do so, the Court focused on when a dismissal\\n\\nbecomes final under § 1915(g). Id. at 1763–64. The Coleman Court reasoned that because\\n\\nthe term “dismiss . . . does not normally include subsequent appellate activity,” a district\\n\\ncourt’s dismissal of an action immediately counts as a strike under § 1915(g) as to all later-\\n\\nfiled additional actions. Id. at 1763.\\n\\n Resisting this result, the prisoner in Coleman had argued, based in part on a portion\\n\\nof our rationale in Henslee, that the phrase “prior occasions” created ambiguity as to the\\n\\n\\nof a prisoner’s third strike, allowed such an appeal through a motion under Fed. R. App. P.\\n24(a)(5). See Robinson v. Powell, 297 F.3d 540, 541 (7th Cir. 2002).\\n\\n 6\\n\\nmeaning of when an action or appeal “was dismissed.” Id. The Supreme Court rejected\\n\\nthis argument — and thus some of our reasoning in Henslee — and held that nothing in the\\n\\nphrase “‘prior occasions’ . . . transform[s] a dismissal into a dismissal-plus-appellate-\\n\\nreview.” Id. (quoting 28 U.S.C. § 1915(g)).\\n\\n Notwithstanding its rejection of the prisoner’s claim in Coleman, the Supreme Court\\n\\nfound it unnecessary to decide the question we faced in Henslee and we face again today:\\n\\nthat is, may a prisoner proceed in forma pauperis on “appeal from the trial court’s dismissal\\n\\nof his third complaint”? Id. at 1765. The United States, appearing as amicus curiae for the\\n\\nprison officials, offered an answer of its own: it argued that § 1915(g) was best read to\\n\\nafford a prisoner in forma pauperis status on appeal from the third qualifying dismissal.\\n\\nSee Brief for the United States as Amicus Curiae Supporting Respondents at 25–27,\\n\\nColeman, 135 S. Ct. 1759 (No. 13-1333), 2015 WL 272362 [hereinafter “Brief for the\\n\\nUnited States as Amicus Curiae”]. After explaining the Solicitor General’s position, the\\n\\nSupreme Court expressly left for another day resolution of whether that position was\\n\\ncorrect. Coleman, 135 S. Ct. at 1765.\\n\\n We now consider again the issue resolved in Henslee but left open by the Court in\\n\\nColeman. 2 Taylor maintains that we should reach the same conclusion here. While\\n\\n\\n\\n 2\\n Since the issuance of Coleman, two circuits have adhered to the prior consensus\\nview that a prisoner may pursue in forma pauperis status on appeal of a third strike. See\\nRichey v. Dahne, 807 F.3d 1202, 1209 (9th Cir. 2015); Dawson v. Coffman, 651 F. App’x\\n840, 842 n.2 (10th Cir. 2016). Only one has reached a contrary result. Parker v.\\nMontgomery Cty. Corr. Facility/Bus. Office Manager, 870 F.3d 144, 152–53 (3d Cir.\\n2017).\\n\\n\\n 7\\n\\nconceding that the Coleman Court left this question “unresolved,” Appellees nonetheless\\n\\nmaintain that the Coleman Court’s rationale “supports” a different result.\\n\\n\\n\\n III.\\n\\n We review de novo questions of statutory interpretation, including application of\\n\\nthe three-strikes rule. Tolbert, 635 F.3d at 649.\\n\\n A.\\n\\n 1.\\n\\n We begin, as always, with the text of the statute, read in “the specific context in\\n\\nwhich that language is used, and the broader context of the statute as a whole.” Robinson\\n\\nv. Shell Oil Co., 519 U.S. 337, 341 (1997). Where the text is unambiguous, our inquiry is\\n\\ncomplete. Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 631 (2018).\\n\\n Section 1915 provides that a prisoner may not “bring a civil action or appeal a\\n\\njudgment in a civil action . . . if the prisoner has, on 3 or more prior occasions, while\\n\\nincarcerated . . . , brought an action or appeal in a court of the United States that was\\n\\ndismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which\\n\\nrelief may be granted.” 28 U.S.C. § 1915(g) (emphasis added). 3 We must therefore decide\\n\\nwhether the district court’s dismissal in this case occurred on a “prior occasion.” If it did,\\n\\n\\n\\n\\n 3\\n The parties agree that the exception for cases in which “the prisoner is under\\nimminent danger of serious physical injury,” 28 U.S.C. § 1915(g), does not apply here.\\n\\n\\n 8\\n\\nTaylor has three strikes and may not proceed in forma pauperis; if not, we must grant his\\n\\nmotions.\\n\\n In the context of a direct appeal, the ordinary meaning of the term “prior” most\\n\\nnaturally encompasses dismissals in other actions, but not in the underlying dismissal that\\n\\nis on appeal. In Coleman itself, both the Sixth Circuit and the Solicitor General found it\\n\\nobvious that a district court decision is not a “prior occasion[]” in this context. As the\\n\\nSolicitor General put it, “[t]he phrase ‘prior occasions’ is most sensibly read as referring to\\n\\nstrikes imposed in prior-filed suits, not to those imposed in an earlier stage of the same\\n\\nsuit.” Brief for the United States as Amicus Curiae at 25; see also Coleman v. Tollefson,\\n\\n733 F.3d 175, 178 (6th Cir. 2013). Indeed, we and other appellate courts regularly (and\\n\\nintuitively) describe proceedings before the district court as part of “this case,” not as a\\n\\n“prior case.” See, e.g., Sierra Club v. Va. Elec. & Power Co., 903 F.3d 403, 409 (4th Cir.\\n\\n2018). Thus, although a district court’s dismissal of an action is surely an “occasion” from\\n\\nthe perspective of the court of appeals, it is not a “prior occasion.” Brief for the United\\n\\nStates as Amicus Curiae at 26.\\n\\n This understanding of the term “prior” in § 1915(g) also comports with “the way in\\n\\nwhich the law ordinarily treats trial court judgments.” Coleman, 135 S. Ct. at 1764. As\\n\\nthe Supreme Court explained in Coleman, “a trial court’s judgment” ordinarily “takes\\n\\neffect despite a pending appeal,” and “a judgment’s preclusive effect is generally\\n\\nimmediate.” Id. (citing Clay v. United States, 537 U.S. 522, 527 (2003)). In Coleman, that\\n\\nfact reinforced the conclusion that, as to the filing of a fourth action, a district court’s\\n\\ndismissal — and its assignment of a strike under § 1915(g) — was a final judgment. The\\n\\n\\n 9\\n\\nopposite is true in the present context: because a district court judgment has no preclusive\\n\\neffect on appeal from the ruling itself, it would be anomalous to treat it as a “prior” occasion\\n\\nunder § 1915(g). See Richey, 807 F.3d at 1209 (noting “[w]hile judgments are immediately\\n\\npreclusive as to successive suits, . . . they are certainly not preclusive to the panel on\\n\\nappeal”); cf. 18 Charles Alan Wright et al., Federal Practice and Procedure § 4401 (3d ed.\\n\\n2008) (“Claim preclusion . . . is not appropriate within a single lawsuit so long as it\\n\\ncontinues to be managed as a single action.”). 4\\n\\n Moreover, to hold otherwise would be to read out the term “prior” and violate the\\n\\ncardinal rule of statutory construction that we are “obliged to give effect, if possible, to\\n\\nevery word Congress used.” Nat’l Ass’n of Mfrs., 138 S. Ct. at 632 (internal quotation\\n\\nmarks omitted); see also Carroll v. Logan, 735 F.3d 147, 152 (4th Cir. 2013). To see why\\n\\nthis is so, consider how the statute works in practice. Section 1915(g) provides that a\\n\\nprisoner may not “bring a civil action or appeal a judgment in a civil action” in forma\\n\\npauperis if he has three strikes. Courts therefore count a prisoner’s strikes as of the date\\n\\nthe prisoner files the complaint or appeal. See, e.g., Millhouse v. Heath, 866 F.3d 152, 154\\n\\n(3d Cir. 2017); Thomas v. Parker, 672 F.3d 1182, 1183 (10th Cir. 2012). Thus, a strike\\n\\nimposed on any occasion will always be “prior” to a court’s decision to grant or deny a\\n\\n\\n\\n 4\\n The dissent suggests that the Coleman Court’s reliance on preclusion law “was an\\nafterthought.” We are not free to make such a judgment about the reasoning of a\\nunanimous opinion of the Supreme Court. Even if we could, we must disagree with our\\ncolleague’s characterization. As in Coleman, we hold only that “[o]ur literal reading of”\\n§ 1915(g) is reinforced by black-letter preclusion law. 135 S. Ct. at 1764.\\n\\n\\n\\n 10\\n\\nmotion to proceed in forma pauperis. Had Congress intended to achieve the result\\n\\nAppellees advance, there would be no need to use the word “prior” at all. See Brief for the\\n\\nUnited States as Amicus Curiae at 25–26. By including it, Congress made clear that an\\n\\nappeals court should count a prisoner’s strikes not in the same action, but in prior actions. 5\\n\\n The facts of this case illustrate why our reading of the statute is the correct one. The\\n\\nparties have (rightly) presented this case as requiring us to decide the question left open in\\n\\nColeman: whether an indigent prisoner may proceed in forma pauperis on appeal from a\\n\\ndistrict court’s third strike. But because the district court here dismissed each of Taylor’s\\n\\nclaims on the same day, Appellees’ logic would prevent Taylor from proceeding in forma\\n\\npauperis on appeal from any of his three dismissals, not just the third. This is so because\\n\\non Appellees’ reading, from the perspective of each individual appeal, Taylor has received\\n\\nthree qualifying dismissals under § 1915(g). Thus, accepting Appellees’ reading of the\\n\\nstatute would mean that a district court’s docket management practices — over which a\\n\\n\\n\\n\\n 5\\n In holding to the contrary, the Third Circuit reasoned that “the term ‘prior’ sets a\\ntemporal parameter” that instructs courts to count only “strikes accrued earlier in time than\\nthe notice of appeal,” excluding “later-accrued strikes.” See Parker, 870 F.3d at 153. But\\nthe first clause of § 1915(g), which provides that a prisoner may not “bring a civil action\\nor appeal a judgment in a civil action,” accomplishes this very same goal. Rather than\\nclarifying a rule already set by another part of § 1915(g), the term “prior” more naturally\\nrefers to strikes imposed in a prior action, not the same action.\\n\\n\\n\\n 11\\n\\nprisoner has no control — could effectively curtail a litigant’s right to appeal. 6 We do not\\n\\nbelieve Congress intended a scheme that would produce such an arbitrary result. 7\\n\\n 2.\\n\\n Contrary to Appellees’ suggestion, the Supreme Court’s rationale in Coleman does\\n\\nnot support a different result.\\n\\n In making this argument, Appellees first attempt to distort the Court’s reasoning to\\n\\nsuggest that, despite explicitly reserving the question presented here, the Supreme Court\\n\\nsomehow resolved it. We must reject this effort. Coleman held that a dismissal is final for\\n\\nthe purpose of counting strikes in a different lawsuit. Coleman, 135 S. Ct. at 1763–64. In\\n\\nso holding, the Supreme Court rejected our reasoning in Henslee as to the ambiguity of the\\n\\n\\n\\n 6\\n For example, imagine that the district court had dismissed each of Taylor’s\\ncomplaints one week apart, and Taylor had noted a timely appeal in his first two dismissals\\nbefore receiving his third. Because we decide whether to grant in forma pauperis status as\\nof the date the appeal is filed, see supra at 11, Appellees’ logic would dictate that we grant\\nTaylor’s motions to proceed in forma pauperis in the first two cases but not the third. Yet\\nbecause the district court in this case dismissed each of Taylor’s complaints on the same\\nday and thus prevented him from noting an appeal in any of his cases until all three were\\ndismissed, Appellees would grant Taylor in forma pauperis appeal in none of his three\\ncases. That simply cannot be the rule Congress intended.\\n Of course, we do not doubt the district court’s broad authority to manage its own\\ndocket. The point is simply that those choices should not affect the neutral operation of\\n§ 1915(g). The most sensible result, and the one consistent with the language of the statute,\\nwould permit a litigant to proceed in forma pauperis in all three cases in both examples\\ncited above, provided he or she has no other qualifying dismissals.\\n 7\\n Contrary to our dissenting colleague’s suggestion, we doubt whether Congress\\nintended such an arbitrary result — one in which a litigant’s appellate rights effectively\\nturn on how a district court manages its docket — not whether that result is a “harsh” one.\\nThe latter question surely rests with Congress; the former counsels in favor of our reading\\nof the term “prior” in § 1915(g).\\n\\n\\n 12\\n\\nterm “occasion.” Id. at 1763. But the Court’s reasoning did not focus on the meaning of\\n\\nthe term “prior,” nor did the Court determine whether a dismissal in the underlying case on\\n\\nappeal counts as a “prior occasion” under § 1915(g).\\n\\n Appellees also argue that the Coleman Court’s statement that “[t]he in forma\\n\\npauperis statute repeatedly treats the trial and appellate stages of litigation as distinct”\\n\\nresolves the question before us. Coleman, 135 S. Ct. at 1763. Not so. The Supreme Court\\n\\nmade this statement in the context of deciding whether a dismissal becomes final when\\n\\nentered or once it is affirmed on appeal. See id. (“Linguistically speaking, we see nothing\\n\\nabout the phrase ‘prior occasions’ that would transform a dismissal into a dismissal-plus-\\n\\nappellate-review.”). That statement says nothing about whether the term “prior” refers to\\n\\nan appeal of the very strike at issue in the case. As we have explained, the text and structure\\n\\nof § 1915(g) make clear that for the term “prior” to have meaning, it must refer to a\\n\\ndismissal in a prior action, not the same action.\\n\\n If anything, the Supreme Court’s rationale in Coleman supports the holding we\\n\\nreach. As noted above, our reading accords with how the law ordinarily treats the\\n\\npreclusive effect of trial court judgments. Moreover, the “leaky filter” problem that the\\n\\nSupreme Court identified in Coleman is not present here. Coleman, 135 S. Ct. at 1764. As\\n\\nthe Court then explained, “[a]ppeals take time,” and by delaying the effect of a district\\n\\ncourt dismissal, “a prisoner could file many lawsuits, including additional lawsuits that are\\n\\nfrivolous, malicious, or fail to state a claim upon which relief may be granted.” Id. Indeed,\\n\\nthat is precisely what happened in Coleman itself. The same is not true here, for our\\n\\nholding grants Taylor in forma pauperis status only on appeal from his third strike, not in\\n\\n\\n 13\\n\\nany later-filed suits. Thus, Taylor remains unable to proceed in forma pauperis on any\\n\\nlawsuits filed subsequent to the district court’s strike, absent a showing that he qualifies\\n\\nfor the imminent danger exception.\\n\\n B.\\n\\n Even setting aside the foregoing analysis, our prior decision in Henslee dictates the\\n\\nsame result. To be sure, the Coleman Court rejected a portion of our analysis in Henslee\\n\\nwhen resolving a different question. But much of Henslee’s reasoning was left untouched.\\n\\nAnd Coleman plainly reserved decision on the issue actually resolved in Henslee and\\n\\npresented again here. Coleman, 135 S. Ct. at 1765.\\n\\n “We do not lightly presume that the law of the circuit has been overturned,”\\n\\nespecially “where, as here, the Supreme Court opinion and our precedent can be read\\n\\nharmoniously.” United States v. White, 670 F.3d 498, 516–17 (4th Cir. 2012) (Duncan, J,\\n\\nconcurring). Adhering to our longstanding rule that a panel of this court is “bound by prior\\n\\nprecedent from other panels in this circuit absent contrary law from an en banc or Supreme\\n\\nCourt decision” demands nothing less. United States v. Ruhe, 191 F.3d 376, 388 (4th Cir.\\n\\n1999).\\n\\n We have expressly held that when a Supreme Court decision abrogates one portion\\n\\nof our rationale in a prior case but not another, the rationale not abrogated by the Supreme\\n\\nCourt nonetheless binds future panels of this court. See, e.g., United States v. Middleton,\\n\\n883 F.3d 485, 491 (4th Cir. 2018) (holding that although Supreme Court case “abrogated\\n\\na portion” of our prior precedent, other parts remained “good law”); United States v. Obey,\\n\\n790 F.3d 545, 549 (4th Cir. 2015) (explaining that prior decision of this court remained\\n\\n\\n 14\\n\\ncontrolling precedent where later Supreme Court decision abrogated it in one application,\\n\\nbut left open, and “may well [have] endorse[d],” its application in another); see also United\\n\\nStates v. Hill, 776 F.3d 243, 247–49 (4th Cir. 2015) (holding circuit precedent “controls”\\n\\nwhere Supreme Court did not directly contradict our prior holding). We are bound to apply\\n\\nthe same rule here.\\n\\n It would be especially anomalous to jettison Henslee when such a substantial portion\\n\\nof the reasoning that guided our inquiry in that case applies with equal force today. As we\\n\\nrecognized there, denying in forma pauperis status in this context would “effectively\\n\\neliminate our appellate function” and “freeze out meritorious claims or ossify district court\\n\\nerrors.” Henslee, 681 F.3d at 543 (internal quotation marks omitted); see also Richey, 807\\n\\nF.3d at 1209. We also recognized in passing that a “district court dismissal of [a]\\n\\n‘plaintiff’s present action’ d[oes] not constitute [a] ‘prior action[]’ and thus do[es] not\\n\\ncount as [a] third strike” on its own appeal. Henslee, 681 F.3d at 543 (emphases added)\\n\\n(quoting Pigg, 106 F.3d at 1498). Then and now, we cannot say that Congress meant “to\\n\\nalter the rule of 28 U.S.C. § 1291, which allows appeals as of right for nearly all civil\\n\\nactions,” without clear textual evidence of its intent to do so. Henslee, 681 F.3d at 543.\\n\\n\\n\\n IV.\\n\\n For the reasons set forth herein, we join the Ninth and Tenth Circuits to reaffirm\\n\\nthat a district court’s dismissal of a prisoner’s complaint does not, in an appeal of that\\n\\ndismissal, qualify as a “prior” dismissal. Accordingly, Taylor’s motions to proceed in\\n\\nforma pauperis are\\n\\n\\n 15\\n\\n GRANTED.\\n\\n\\n\\n\\n16\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4418025/\", \"author_raw\": \"Wynn joined. Judge Richardson wrote a dissenting\"}, {\"author\": \"RICHARDSON, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"RICHARDSON, Circuit Judge, dissenting:\\n\\n Plaintiff Therl Taylor filed three lawsuits raising a hodgepodge of claims against\\n\\nstate prison officials. To give just three examples, he complained that an employee in the\\n\\nprison mailroom put staples in his Christmas cards, that another employee made poor-\\n\\nquality photocopies for him, and that still other prison officials violated the copyright laws\\n\\nby screening movies for inmates. A federal magistrate judge found his claims meritless;\\n\\nthe district court agreed and dismissed all three actions. Taylor now seeks to appeal those\\n\\ndecisions in forma pauperis—that is, without paying the required filing fee in full. By\\n\\nstatute, however, he cannot appeal in forma pauperis if he has, on three or more “prior\\n\\noccasions,” “brought” a civil action that was dismissed on certain specified grounds. 28\\n\\nU.S.C. § 1915(g). 1 The Defendants oppose his request.\\n\\n Taylor’s request turns on a straightforward issue of statutory interpretation: was\\n\\neach district-court action “brought” on a “prior occasion” from these appeals? The plain\\n\\nlanguage of § 1915(g)’s “three-strikes” rule, as interpreted by the Supreme Court, provides\\n\\nan unambiguous answer: yes. That answer may be harsh, but as judges, we must still apply\\n\\nthe statute as Congress wrote it. Therefore, I respectfully dissent.\\n\\n\\n 1\\n 28 U.S.C. § 1915(g):\\n\\n In no event shall a prisoner bring a civil action or appeal a judgment in a civil\\n action or proceeding under this section if the prisoner has, on 3 or more prior\\n occasions, while incarcerated or detained in any facility, brought an action\\n or appeal in a court of the United States that was dismissed on the grounds\\n that it is frivolous, malicious, or fails to state a claim upon which relief may\\n be granted, unless the prisoner is under imminent danger of serious physical\\n injury.\\n\\n\\n 17\\n\\n A.\\n\\n I begin by explaining why we are not bound by our decision in Henslee v. Keller,\\n\\n681 F.3d 538 (4th Cir. 2012), which would require us to rule for Taylor if it remained in\\n\\nforce. The plaintiff in Henslee had previously filed two actions that were dismissed on one\\n\\nof the grounds enumerated in § 1915(g), which made them strikes. The case on appeal had\\n\\nalso been dismissed on one of the enumerated grounds. We therefore had to decide whether\\n\\nthis third dismissal counted as a strike and thus precluded the inmate from appealing in\\n\\nforma pauperis. We concluded it did not, based our interpretation of the word “occasions.”\\n\\nWe reasoned, first, that “the word ‘occasions’ is ambiguous” because it could mean either\\n\\n“an appeal, independent of the underlying action, or . . . the continuing claim, inclusive of\\n\\nboth the action and its appeal.” Id. at 542. We then concluded that the interpretation\\n\\n“which adheres most closely to Congress’s dual intentions is one that includes both the\\n\\nappeal and its underlying action.” Id. at 543. Accordingly, we held, a district-court\\n\\ndismissal cannot constitute a strike in an appeal from that dismissal. Id. If this holding\\n\\nwere still binding, then Taylor would have only two strikes in each of the three cases on\\n\\nappeal, because one of his three dismissals (the one being appealed in that case) would not\\n\\ncount.\\n\\n In Coleman v. Tollefson, 135 S. Ct. 1759 (2015), the Supreme Court rejected\\n\\nHenslee’s reasoning while considering different facts. The issue in Coleman was whether\\n\\na district court dismissal in a separate lawsuit—not the lawsuit being appealed—counts as\\n\\na strike when it is still pending on appeal. In addressing that issue, the Supreme Court\\n\\nquoted the key passage in Henslee identifying “occasions” as ambiguous. Id. at 1763. It\\n\\n\\n 18\\n\\nthen explained that Henslee was wrong, that “occasions” is not ambiguous, and that a\\n\\ndistrict-court dismissal is a separate “occasion” from a subsequent appeal. Id. at 1763–64.\\n\\nThe Supreme Court declined, however, to go beyond the facts before it and address the\\n\\nfactual scenario in Henslee and these appeals, where one of the dismissals comes from the\\n\\nvery case on appeal. Id. at 1764–65.\\n\\n Prior circuit precedent is not binding if an intervening Supreme Court case has\\n\\n“specifically rejected the reasoning on which [the prior decision] was based.” Qingyun Li\\n\\nv. Holder, 666 F.3d 147, 150 (4th Cir. 2011) (alteration in original) (quoting Etheridge v.\\n\\nNorfolk & W. Ry. Co., 9 F.3d 1087, 1090–91 (4th Cir. 1993)); see also United States v.\\n\\nWinston, 850 F.3d 677, 683 (4th Cir. 2017) (declining to follow prior panel opinion\\n\\n“undermined by later Supreme Court precedent” (citing United States v. Williams, 155 F.3d\\n\\n418, 421 (4th Cir. 1998))). This is so even when our prior precedent is directly on point.\\n\\nIn Winston, for example, we confronted prior circuit precedent holding that Virginia\\n\\ncommon law robbery was a “violent felony” under the force clause of the Armed Career\\n\\nCriminal Act. 850 F.3d at 683 (citing United States v. Presley, 52 F.3d 64 (4th Cir. 1995)).\\n\\nIn an intervening decision, the Supreme Court had held that Florida criminal battery was\\n\\nnot a violent felony and, in doing so, adopted an understanding of the force clause different\\n\\nfrom the one we had applied. See id. at 683–84 (citing Johnson v. United States, 559 U.S.\\n\\n133 (2010)). We therefore revisited whether Virginia robbery was a violent felony,\\n\\nunbound by our earlier precedent. Id.\\n\\n This rule of precedent plays an important role in protecting the rule of law. The\\n\\nmodern Supreme Court proceeds mainly by writ of certiorari, choosing to hear only a\\n\\n\\n 19\\n\\nhandful of cases each year. If we continued to be bound by circuit precedent until the\\n\\nSupreme Court reached a different outcome on essentially the same facts, we would keep\\n\\non multiplying our errors for a long time, sometimes for decades. Thus, whenever the\\n\\nSupreme Court has rejected the reasoning underlying our precedent, we must consider the\\n\\nissue anew, faithfully applying the Court’s guidance. Every circuit has adopted some\\n\\nversion of this rule, albeit with variations on our “specifically rejected” formulation. 2\\n\\n As a result, we are not bound by Henslee: even though Henslee addressed the exact\\n\\nquestion before us, Coleman explicitly said that Henslee’s reasoning was wrong. And\\n\\nTaylor is wrong when he argues for a different result just because the Supreme Court\\n\\ndeclined to address Henslee’s facts. The Supreme Court often declines to address\\n\\nhypothetical cases not before it, for the judicial function is to decide cases, not to render\\n\\n\\n\\n 2\\n See, e.g., Mongeau v. City of Marlborough, 492 F.3d 14, 18 (1st Cir. 2007)\\n(“undermined”); United States v. Robbins, 729 F.3d 131, 134 (2d Cir. 2013) (“casts\\ndoubt”); United States v. Tann, 577 F.3d 533, 541 (3d Cir. 2009) (“conflicts with”); Martin\\nv. Medtronic, Inc., 254 F.3d 573, 577 (5th Cir. 2001) (“implicitly overrules”); United States\\nv. White, 920 F.3d 1109, 1113 (6th Cir. 2019) (“undercut or abrogated”); United States v.\\nWalton, 255 F.3d 437, 443 (7th Cir. 2001) (“undermined”); Northport Health Servs. of\\nArkansas, LLC v. Rutherford, 605 F.3d 483, 489 (8th Cir. 2010) (“undermines”); Miller v.\\nGammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc) (“undercut”); Auraria Student Hous.\\nat the Regency, LLC v. Campus Vill. Apartments, LLC, 843 F.3d 1225, 1235 (10th Cir.\\n2016) (“undermines”); United States v. Madden, 733 F.3d 1314, 1319 (11th Cir. 2013)\\n(“substantially undermined”); Davis v. U.S. Sentencing Comm’n, 716 F.3d 660, 664 (D.C.\\nCir. 2013) (“eviscerated”); Troy v. Samson Mfg. Corp., 758 F.3d 1322, 1326 (Fed. Cir.\\n2014) (“undercut”). What is true of our own precedent is not true of the Supreme Court’s:\\nwe follow on-point Supreme Court precedent even when its reasoning has been\\nundermined by a later Supreme Court decision, waiting for the Supreme Court to overrule\\nitself. See, e.g., United States v. Sterling, 724 F.3d 482, 501–02 (4th Cir. 2013) (citing\\nRodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)). This\\ndifference reflects the Supreme Court’s supremacy over our court.\\n\\n\\n 20\\n\\nadvisory opinions. Sometimes it expressly reserves such hypothetical cases; more typically\\n\\nit simply does not address them. But whether such a reservation is explicit or implicit does\\n\\nnot matter when the Supreme Court has rejected our reasoning. Whatever the facts before\\n\\nus, we may not rely on a decision whose reasoning we now know is infirm. Taylor’s\\n\\nsuggested approach would be dangerous, undermining the rule of law by putting our court\\n\\nabove the Supreme Court.\\n\\n For the first six pages of their analysis, my colleagues in the Majority rightly ignore\\n\\nHenslee and analyze the issue before us de novo. Then, at the end, they contend that\\n\\nColeman abrogated only part of Henslee’s reasoning and that we remain bound by the rest\\n\\nof it. This argument is a non sequitur. Coleman rejected Henslee’s conclusion that the\\n\\nword “occasions” is ambiguous. All that remains is Henslee’s analysis of how to interpret\\n\\nthe text if it is ambiguous. I fail to see how this is relevant to my colleagues’ opinion,\\n\\nbecause they nowhere conclude that the text is ambiguous. Rather, they claim the statute\\n\\nis “clear.” Majority Op. at 11. As best I can tell, the Majority basically agrees with me\\n\\nthat Henslee is not binding; my colleagues simply want to rely on certain policy arguments\\n\\nfrom Henslee. No matter what you think of those policy arguments, they are beside the\\n\\npoint here.\\n\\n B.\\n\\n I now turn to the statute. The issue before us is whether each action below was\\n\\n“brought” on a “prior occasion” from these appeals. This issue can be broken down into\\n\\ntwo pieces: (1) Is a district-court action “brought” on a separate “occasion” from a\\n\\n\\n\\n\\n 21\\n\\nsubsequent appeal, or on the same “occasion”? (2) If the action and appeal do in fact\\n\\nrepresent separate occasions, is the district-court action a “prior” occasion?\\n\\n The Supreme Court supplied the first piece in Coleman, holding that a district-court\\n\\ndismissal is a separate “occasion” from a subsequent appeal in the same case. It relied on\\n\\nthe plain meaning of the word “occasion”: “‘a particular occurrence,’ a ‘happening,’ or an\\n\\n‘incident.’” Coleman, 135 S. Ct. at 1763 (quoting dictionary). A district-court action\\n\\nbelongs to the same lawsuit as a later appeal, but it is plainly a different “happening” within\\n\\nthat lawsuit.\\n\\n The surrounding text reinforces this conclusion. The statute asks whether the inmate\\n\\n“has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought\\n\\nan action or appeal” that was dismissed for a reason that makes it a strike. 28 U.S.C.\\n\\n§ 1915(g) (emphases added). As the Coleman Court observed, the text is punctilious in\\n\\ndistinguishing between an “action” and an “appeal,” treating them as two different\\n\\noccasions. See 135 S. Ct. at 1763–64. Just as importantly, the text provides that the\\n\\nrelevant “occasion” is the bringing of the action or appeal. A district-court action and an\\n\\nappeal are necessarily “brought” on two different occasions.\\n\\n With this first piece set out, the second fits smoothly into place. If a district-court\\n\\naction and appeal are different “occasions,” then the district-court action can only be a\\n\\n“prior” occasion. The word “prior” means “[p]receding in time or order.” Prior, BLACK’S\\n\\nLAW DICTIONARY (10th ed. 2014). A district-court action precedes an appeal in both time\\n\\n\\n\\n\\n 22\\n\\nand order: the appeal cannot proceed until the dismissal is final. 28 U.S.C. § 1291. 3 The\\n\\ndistrict-court action is therefore “prior” to the appeal in every conceivable sense of the\\n\\nword.\\n\\n Thus construed, the statute clearly applies to this case. Taylor has, while\\n\\nincarcerated, “brought” a district-court action on three “occasions.” Each occasion was\\n\\n“prior” to these appeals. And each action “was dismissed” for one of the grounds\\n\\nenumerated in the statute. So he cannot proceed in forma pauperis.\\n\\n Taylor effectively asks us to create an exception from the statutory text where the\\n\\nthird strike is the case on appeal. I cannot accede to that request. The statute does\\n\\ncontemplate exceptions, just not the one he seeks. Congress provided an exception to\\n\\n§ 1915(g)’s “three-strikes” rule where “the prisoner is under imminent danger of serious\\n\\nphysical injury.” 28 U.S.C. § 1915(g). Congress easily could, but did not, create another\\n\\nexception providing that an inmate can appeal from a third strike in forma pauperis. “When\\n\\nCongress provides exceptions in a statute, it does not follow that courts have authority to\\n\\ncreate others. The proper inference . . . is that Congress considered the issue of exceptions\\n\\nand, in the end, limited the statute to the ones set forth.” United States v. Johnson, 529\\n\\nU.S. 53, 58 (2000).\\n\\n C.\\n\\n\\n\\n\\n 3\\n What about interlocutory appeals? We need not concern ourselves with them, for\\nall “strikes” are final orders: the text requires a dismissal of the entire “action” for one of\\nthe specified grounds, which is necessarily “final” for purposes of § 1291.\\n\\n\\n 23\\n\\n Undeterred by the lack of a statutory exception supporting Taylor’s position, my\\n\\ncolleagues write one in. They admit that a district-court action is a “prior occasion” when\\n\\nviewed from the perspective of an appeals court in a different case—Coleman compels that\\n\\nresult. But they insist that the phrase “prior occasion” means something different from the\\n\\nperspective of an appellate court in the same case.\\n\\n I am not entirely sure how this interpretation works. At times, my colleagues\\n\\nsuggest that the district-court action and the subsequent appeal are one and the same\\n\\n“occasion.” They point out that we often “describe proceedings before the district court as\\n\\npart of ‘this case,’ not as a ‘prior case.’” Majority Op. at 9. But the statute doesn’t say\\n\\n“case.” It says “occasion.” This attempt to create slippage between “occasion” and “case”\\n\\nultimately gets the Majority nowhere, because as Coleman held, a district-court action and\\n\\na subsequent appeal are different “occasions” within the same case. Understandably\\n\\nreluctant to contradict Coleman, my colleagues never explicitly say that a district-court\\n\\ndismissal is the same “occasion” as an ensuing appeal.\\n\\n Instead, my colleagues try to use the word “prior” to shoehorn their unwritten\\n\\nexception into the statute. A district-court action is a separate occasion, they seem to say,\\n\\njust not a prior occasion from where we sit. To accept this, one would have to posit that\\n\\nthe district-court action occurs simultaneously with our review on appeal. But while both\\n\\nwe and the district court review the same issues, we do not review them simultaneously:\\n\\nthe district court handles the case first, and only once its proceedings are final do we check\\n\\nits work. And we know from Coleman that these two occasions are not simultaneous from\\n\\nthe perspective of a different court (or even a different panel of the same court) viewing\\n\\n\\n 24\\n\\nthe same proceedings. I see nothing in the statute to support the idea that two separate\\n\\noccasions can occur at different points in time from the perspective of one panel, but at the\\n\\nsame time from the perspective of another. 4\\n\\n Hoping to bolster their interpretation, my colleagues rely on the canon against\\n\\nsurplusage. “Prior” is largely redundant in the Defendants’ interpretation of the statute. 5\\n\\nWe can give “prior” meaning, so the argument goes, by reading it to say that the dismissal\\n\\nmust occur in a “prior” lawsuit. See Brief for the United States as Amicus Curiae at 25–\\n\\n27, Coleman v. Tollefson, 135 S. Ct. 1759 (No. 13-1333), 2015 WL 272362.\\n\\n Yet the “canon against surplusage is not an absolute rule.” Marx v. Gen. Revenue\\n\\nCorp., 568 U.S. 371, 385 (2013). Many statutes use redundant words: “have and hold,”\\n\\n16 U.S.C. § 445a, “claim or cause of action,” 28 U.S.C. § 1452, “release and discharge,”\\n\\n\\n\\n\\n 4\\n According to Einstein’s special theory of relativity, two events separated in space\\ncan occur at the same time from the perspective of one observer, but at different times from\\nthe perspective of an observer in another inertial reference frame. Einstein was right, and\\nmany experiments have borne out his predictions. But these relativistic effects are\\nnegligible at everyday speeds, so it is hard to think that Congress legislated with them in\\nmind. After all, the Ninth Circuit doesn’t observe our court’s proceedings from a spaceship\\nzooming past us at half the speed of light. Litigation just doesn’t move that fast. Cf. Texas\\nNat’l Bank v. Sandia Mortg. Corp., 872 F.2d 692, 700 n.4 (5th Cir. 1989) (explaining that\\nthe “judicial system is sufficiently lethargic so as to minimize the inaccuracies of\\nNewtonian Mechanics”).\\n 5\\n I agree with the Majority that the statute provides, independently of the word prior,\\nthat each dismissal must occur before the appeal is filed. The statute forbids an inmate to\\n“bring a civil action or appeal a judgment in a civil action or proceeding under this section”\\nif each of three prior actions or appeals “was dismissed” for one of the specified grounds.\\n28 U.S.C. § 1915(g) (emphases added). In context, the verb “appeal” is most naturally\\nread to refer to the filing of the appeal. So when the statute uses the past tense (“was\\ndismissed”), it tells us that each dismissal must come before filing.\\n\\n\\n 25\\n\\n30 U.S.C. § 187a, “perfectly null and void,” 43 U.S.C. § 859—and so on and so forth. As\\n\\na result, “there are instances in which a court may validly ‘prefer ordinary meaning to an\\n\\nunusual meaning that will avoid surplusage.’” Oak Grove Res., LLC v. Director, OWCP,\\n\\n920 F.3d 1283, 1291 (11th Cir. 2019) (quoting ANTONIN SCALIA & BRYAN A. GARNER,\\n\\nREADING LAW § 26, at 176 (2012)). Certainly, a court should not give a word an entirely\\n\\nfanciful meaning to avoid a minor redundancy.\\n\\n Here, the surplusage argument distorts “prior” beyond all recognition, assigning that\\n\\nword a meaning it lacks. The word “prior” does not even remotely suggest that a district-\\n\\ncourt dismissal must have occurred in a different lawsuit to count as a strike. Indeed, this\\n\\nargument is nothing more than an end-run around Coleman: it tries to use the word “prior”\\n\\nto show that the relevant “occasion” is the entire lawsuit (that is, the district-court action\\n\\nand subsequent appeal together), the very interpretation that Coleman rejected.\\n\\n Instead of misreading “prior,” we should just admit that Congress used a redundant\\n\\nword. That is hardly surprising: redundant uses of “prior” abound. See Redundancies,\\n\\nGRAMMARIST, https://grammarist.com/redundancies/ (last visited July 17, 2019) (noting\\n\\nthat the oft-used phrase “prior experience” is usually redundant because almost all\\n\\nexperience is “prior”). Even judicial opinions sometimes fall victim, for example by\\n\\nreferring to someone’s “prior history,” a phrase that is almost always redundant because\\n\\nhistory necessarily takes place in the past. United States v. Thomas, 669 F.3d 421, 427 (4th\\n\\nCir. 2012); see also Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 319 (4th\\n\\nCir. 2005) (referring to job applicants’ “prior management experience”). Similarly, courts\\n\\noften refer to “prior precedent” even though precedent is, quite literally, that which\\n\\n\\n 26\\n\\n“precedes.” E.g., United States v. Hargrove, 478 F.3d 195, 204 (4th Cir. 2007). 6 The only\\n\\nreasonable conclusion is that Congress committed a similar redundancy here.\\n\\n The Majority also suggests that we should construe § 1915(g) narrowly to avoid\\n\\nrestrictions on our appellate review. This suggestion has no basis in law. True, there is a\\n\\nsubstantive canon requiring an express statement to oust courts of appellate jurisdiction.\\n\\nSee, e.g., United States v. Am. Bell Tel. Co., 159 U.S. 548, 549–50 (1895). But see SCALIA\\n\\n& GARNER, supra, § 65, at 367–68 (criticizing this rule). Yet this case is not about our\\n\\nappellate jurisdiction, just Taylor’s ability to proceed without paying the filing fee in\\n\\nadvance. See Blakely v. Wards, 738 F.3d 607, 612 (4th Cir. 2013) (en banc) (“Section\\n\\n1915(g) is a limitation on prisoners’ rights, not on courts’ authority.”); Lisenby v. Lear, 674\\n\\nF.3d 259, 263 (4th Cir. 2012) (holding § 1915(g) is “procedural, not jurisdictional, in\\n\\nnature”). There is no recognized canon of construction requiring us to narrowly construe\\n\\nCongress’s restrictions on in forma pauperis appeals. See United States v. Kras, 409 U.S.\\n\\n434, 450 (1973) (explaining that there is no “unlimited rule that an indigent at all times and\\n\\nin all cases has the right to relief without the payment of fees”). Any such rule would be\\n\\ninconsistent with Coleman, which did not read § 1915(g) narrowly but rather followed the\\n\\nplain and natural meaning of the text.\\n\\n\\n\\n\\n 6\\n Some readers may have noticed that page three of this opinion, above, contains at\\nleast four different variations on “prior precedent.” But I suspect many missed it, precisely\\nbecause this minor redundancy is unremarkable. Those who did notice surely did not\\nconclude that “prior” must have some alternative meaning.\\n\\n\\n 27\\n\\n In addition, the Majority reasons, this case can be distinguished from Coleman\\n\\nbased on “the way in which the law ordinarily treats trial court judgments.” 135 S. Ct. at\\n\\n1764. A trial-court judgment has preclusive effect on other actions immediately, before it\\n\\nis appealed. By contrast, a trial-court judgment has no preclusive effect on an appeal from\\n\\nthat very judgment. Yet this distinction makes no difference. This point was an\\n\\nafterthought in the Coleman Court’s analysis, serving merely to confirm its “literal\\n\\nreading” of the statute. Id. Courts often gild the lily in this way, providing policy\\n\\narguments to confirm a statutory interpretation compelled by the text alone. The simple\\n\\nfact is that nothing in Coleman’s textual reading of § 1915(g) turned on issues of finality\\n\\nand preclusion, because the text says nothing about those issues. So this distinction gives\\n\\nme no reason to change my interpretation of the statute. Even on its own terms, my\\n\\ncolleagues’ proposed distinction fails, because it ignores another relevant sense of\\n\\n“finality”: the one provided by 28 U.S.C. § 1291. Each dismissal below was “final” for\\n\\npurposes of appeal, and each action “was dismissed” unless and until we vacate or reverse\\n\\nthe district court’s order.\\n\\n Similarly, while this particular case does not implicate Coleman’s concern that\\n\\n§ 1915(g) might turn into a “leaky filter,” that provides no reason to deviate from statutory\\n\\ntext. While putting a big gash in a filter can make it leaky, so can punching out a bunch of\\n\\nsmall holes. Thus, this proposed distinction does not hold water: if it did, then judges\\n\\ncould riddle the statute with unauthorized exceptions that let through one meritless prisoner\\n\\nlawsuit after another.\\n\\n\\n\\n\\n 28\\n\\n D.\\n\\n Finally, my colleagues “do not believe Congress intended a scheme that would\\n\\nproduce such an arbitrary result” as the one in this case. Majority Op. at 12. While I\\n\\nsympathize with my colleagues’ concern that the statute commands a harsh result, I do not\\n\\nsee that as a reason to rewrite it.\\n\\n Consider what Congress was trying to accomplish here. The in forma pauperis\\n\\nstatute seeks to balance two competing goals: on the one hand, affording poor people easier\\n\\naccess to the courts, and on the other, shielding the courts from the never-ending deluge of\\n\\nmeritless prisoner litigation. Congress is uniquely positioned to balance open-ended policy\\n\\ngoals of this type, and our role as judges is to discern the balance Congress struck by\\n\\nfaithfully interpreting the statutory text. Still, Congress could have left much of the\\n\\nbalancing to us, adopting a loose standard with broad room for judicial discretion. Instead,\\n\\nit gave us concrete rules. One of them—designed to address the problem of “serial\\n\\nfilers”—is the “three-strikes” rule of § 1915(g).\\n\\n Rules of this sort are invariably over- and under-inclusive, appearing harsh in some\\n\\ncases and lenient in others. As a result, my colleagues’ concern to avoid an “arbitrary”\\n\\ninterpretation misses the point. A “three-strikes” rule is arbitrary almost by definition.\\n\\nWhy not four strikes? Or five? Or fifteen? The answer may simply be that many members\\n\\nof Congress are baseball fans. From our perspective, it does not matter. Congress decided\\n\\nto draw the line at three, and our sole job is to count. When we do, it becomes clear that\\n\\nTaylor already has three strikes and may not proceed without paying the filing fee. And\\n\\neven under my colleagues’ interpretation, Taylor would be barred from proceeding in\\n\\n\\n 29\\n\\nforma pauperis if there were four district-court actions on appeal. 7 Somehow, three is\\n\\nunacceptably “arbitrary,” but four is just fine.\\n\\n The real force of my colleagues’ reasoning is that the statute as written seems too\\n\\nharsh: inmates will have to pay the filing fee, which many of them cannot afford, to get\\n\\nappellate review of whether their third strike was proper. I too have sympathy for inmates\\n\\nin that position. Indeed, the statute is particularly harsh here, because all three dismissals\\n\\nwere handed down on the same day, leaving Taylor unable to appeal any of them in forma\\n\\npauperis. But the statute says what it says, and it is Congress’s job—not ours—to rewrite\\n\\nit if it produces unduly harsh results. Taylor asks us to do just that, and my good colleagues\\n\\nin the Majority indulge that request. I would follow the statute and require Taylor to pay\\n\\nthe full filing fee. For that reason, I respectfully dissent.\\n\\n\\n\\n\\n 7\\n This is a consequence of the Supreme Court’s holding in Coleman. Suppose that\\nfour dismissals had become final on the same day, and that Taylor appealed all four of\\nthem the following day. In each appeal, the dismissals in the other three cases would\\nimmediately count as strikes under Coleman. The Majority’s holding would save only one\\nof the four dismissals from counting as a strike in each appeal.\\n\\n\\n 30\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4418025/\", \"author_raw\": \"RICHARDSON, Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"MOTZ"},"judge2":{"kind":"string","value":"WYNN"},"judge3":{"kind":"string","value":"RICHARDSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":5,"string":"5"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":3,"string":"3"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4640772/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":1,"string":"1"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Therl TAYLOR, Plaintiff - Appellant, v. Virginia GRUBBS; Pamala Smith ; Ann Hallman; Sherman Anderson, Present Chief; Valerie Jones; Supervisor Randall Williams; John Pate; Allendale Fairfax County-City, Defendants - Appellees. Therl Taylor, Plaintiff - Appellant, v. John Pate; Randall Williams; Teresa Ramsey; Connie Buehner; LT. Carter, SCDC; SCDC; Jane DOE, Employees; John DOE, Employees; Pamela Smith, AI Grievance Coordinator, Defendants - Appellees. Therl Taylor, Plaintiff - Appellant, v. Walter Worrick; Virginia Grubbs; Pamela Smith; SCDC LT MR C Hartley; John Pate; Bryan Stirling; Jane Does; John Does, Defendants - Appellees.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-07-18\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-6374\n\n\nTHERL TAYLOR,\n\n Plaintiff – Appellant,\n\n v.\n\nVIRGINIA GRUBBS; PAMALA SMITH; ANN HALLMAN; SHERMAN\nANDERSON, Present Chief; VALERIE JONES; SUPERVISOR RANDALL\nWILLIAMS; JOHN PATE; ALLENDALE FAIRFAX COUNTY-CITY,\n\n Defendants – Appellees.\n\n\n\n No. 17-6375\n\n\nTHERL TAYLOR,\n\n Plaintiff – Appellant,\n\n v.\n\nJOHN PATE; RANDALL WILLIAMS; TERESA RAMSEY; CONNIE\nBUEHNER; LT. CARTER, SCDC; SCDC; JANE DOE, Employees; JOHN DOE,\nEmployees; PAMELA SMITH, AI Grievance Coordinator,\n\n Defendants – Appellees.\n\n\n\n No. 17-6376\n\nTHERL TAYLOR,\n\n Plaintiff – Appellant,\n\n v.\n\nWALTER WORRICK; VIRGINIA GRUBBS; PAMELA SMITH; SCDC LT MR C\nHARTLEY; JOHN PATE; BRYAN STIRLING; JANE DOES; JOHN DOES,\n\n Defendants – Appellees.\n\n\nAppeals from the United States District Court for the District of South Carolina, at\nCharleston. Richard Mark Gergel, District Judge. (2:15-cv-04958-RMG; 2:16-cv-02115-\nRMG; 2:16-cv-03084-RMG)\n\n\nArgued: May 8, 2019 Decided: July 18, 2019\n\n\nBefore MOTZ, WYNN, and RICHARDSON, Circuit Judges.\n\n\nMotions granted by published opinion. Judge Motz wrote the opinion, in which Judge\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Therl TAYLOR, Plaintiff - Appellant, v. Virginia GRUBBS; Pamala Smith ; Ann Hallman; Sherman Anderson, Present Chief; Valerie Jones; Supervisor Randall Williams; John Pate; Allendale Fairfax County-City, Defendants - Appellees. Therl Taylor, Plaintiff - Appellant, v. John Pate; Randall Williams; Teresa Ramsey; Connie Buehner; LT. Carter, SCDC; SCDC; Jane DOE, Employees; John DOE, Employees; Pamela Smith, AI Grievance Coordinator, Defendants - Appellees. Therl Taylor, Plaintiff - Appellant, v. Walter Worrick; Virginia Grubbs; Pamela Smith; SCDC LT MR C Hartley; John Pate; Bryan Stirling; Jane Does; John Does, Defendants - Appellees.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-07-18\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 17-6374\\n\\n\\nTHERL TAYLOR,\\n\\n Plaintiff – Appellant,\\n\\n v.\\n\\nVIRGINIA GRUBBS; PAMALA SMITH; ANN HALLMAN; SHERMAN\\nANDERSON, Present Chief; VALERIE JONES; SUPERVISOR RANDALL\\nWILLIAMS; JOHN PATE; ALLENDALE FAIRFAX COUNTY-CITY,\\n\\n Defendants – Appellees.\\n\\n\\n\\n No. 17-6375\\n\\n\\nTHERL TAYLOR,\\n\\n Plaintiff – Appellant,\\n\\n v.\\n\\nJOHN PATE; RANDALL WILLIAMS; TERESA RAMSEY; CONNIE\\nBUEHNER; LT. CARTER, SCDC; SCDC; JANE DOE, Employees; JOHN DOE,\\nEmployees; PAMELA SMITH, AI Grievance Coordinator,\\n\\n Defendants – Appellees.\\n\\n\\n\\n No. 17-6376\\n\\nTHERL TAYLOR,\\n\\n Plaintiff – Appellant,\\n\\n v.\\n\\nWALTER WORRICK; VIRGINIA GRUBBS; PAMELA SMITH; SCDC LT MR C\\nHARTLEY; JOHN PATE; BRYAN STIRLING; JANE DOES; JOHN DOES,\\n\\n Defendants – Appellees.\\n\\n\\nAppeals from the United States District Court for the District of South Carolina, at\\nCharleston. Richard Mark Gergel, District Judge. (2:15-cv-04958-RMG; 2:16-cv-02115-\\nRMG; 2:16-cv-03084-RMG)\\n\\n\\nArgued: May 8, 2019 Decided: July 18, 2019\\n\\n\\nBefore MOTZ, WYNN, and RICHARDSON, Circuit Judges.\\n\\n\\nMotions granted by published opinion. Judge Motz wrote the opinion, in which Judge\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2951,"cells":{"id":{"kind":"number","value":4641291,"string":"4,641,291"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Juan Cortez"},"decision_date":{"kind":"string","value":"2019-07-19"},"docket_number":{"kind":"string","value":"19-4055"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before MOTZ, AGEE, and HARRIS, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"PAMELA HARRIS, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 19-4055\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nJUAN CORTEZ, a/k/a Jasinto Morales,\\n\\n Defendant - Appellant.\\n\\n------------------------------\\n\\nSTEVEN ABRAMS; ESMERALDA CABRERA; TEOFILO CHAPA; JEFFREY\\nS. CHASE; GEORGE T. CHEW; MATTHEW J. D’ANGELO; BRUCE J.\\nEINHORN; CECELIA M. ESPENOZA; NOEL FERRIS; JOHN F. GOSSART,\\nJR.; MIRIAM HAYWARD; REBECCA JAMIL; WILLIAM P. JOYCE; CAROL\\nKING; ELIZABETH A. LAMB; MARGARET MCMANUS; CHARLES ERNST\\nPAZAR; LAURA RAMIREZ; JOHN W. RICHARDSON; LORY DIANA\\nROSENBERG; SUSAN ROY; PAUL WILLIAM SCHMIDT; DENISE\\nNOONAN SLAVIN; ANDREA H. SLOAN; WILLIAM PETER VAN WYKE;\\nGUSTAVO D. VILLAGELIU; POLLY A. WEBBER,\\n\\n Amici Supporting Appellant.\\n\\n\\nAppeal from the United States District Court for the Western District of Virginia, at\\nLynchburg. Norman K. Moon, Senior District Judge. (6:18-cr-00022-NKM-1)\\n\\n\\nArgued: May 9, 2019 Decided: July 17, 2019\\n Amended: July 19, 2019\\n\\n\\nBefore MOTZ, AGEE, and HARRIS, Circuit Judges.\\n\\fAffirmed by published opinion. Judge Harris wrote the opinion, in which Judge Motz\\nand Judge Agee joined.\\n\\n\\nARGUED: Erin Margaret Trodden, OFFICE OF THE FEDERAL PUBLIC\\nDEFENDER, Harrisonburg, Virginia, for Appellant. Laura Day Rottenborn, OFFICE OF\\nTHE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. ON BRIEF:\\nJuval O. Scott, Federal Public Defender, Roanoke, Virginia, Lisa M. Lorish, Assistant\\nFederal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\\nCharlottesville, Virginia, for Appellant. Thomas T. Cullen, United States Attorney,\\nOFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.\\n\\n\\n\\n\\n 2\\n\\fPAMELA HARRIS, Circuit Judge:\\n\\n Juan Cortez, a citizen of Mexico, was charged with illegally reentering the United\\n\\nStates after having been removed years prior. Cortez conceded that he was unlawfully\\n\\npresent, but argued that his initial removal order was invalid because of an alleged filing\\n\\ndefect that deprived the immigration court of “jurisdiction” over his case. The district\\n\\ncourt rejected that argument, and Cortez subsequently pleaded guilty while preserving his\\n\\nright to raise the issue on appeal.\\n\\n We affirm the district court’s order. We first hold that the premise of Cortez’s\\n\\nargument – that the purported filing defect in his case deprived the immigration court of\\n\\nauthority to enter a removal order, so that he may collaterally challenge that order in\\n\\nsubsequent criminal proceedings – is incorrect. And in any event, there in fact was no\\n\\ndefect. As the district court explained, the applicable regulations do not require that the\\n\\ninformation identified by Cortez – a date and time for a subsequent removal hearing – be\\n\\nincluded in the “notice to appear” that is filed with an immigration court to initiate\\n\\nproceedings.\\n\\n\\n\\n\\n I.\\n\\n A.\\n\\n Juan Cortez is a citizen of Mexico who has been found to be unlawfully present in\\n\\nthe United States on two occasions. The first was in 2011. On February 27 of that year,\\n\\nthe Department of Homeland Security (“Department”) served Cortez with a document\\n\\n\\n 3\\n\\flabeled “Notice to Appear.” That notice advised him, among other things, that he was\\n\\ncharged with being unlawfully present in the country, and that the Department was\\n\\ninitiating removal proceedings against him. The notice provided Cortez with the location\\n\\nof the immigration court where his removal hearing would be held, but did not provide a\\n\\ndate and time, stating only that the hearing would occur “on a date to be set at a time to\\n\\nbe set.” J.A. 10. At the same time it served Cortez with this written notice, however, the\\n\\nDepartment orally informed him of his hearing date and time.\\n\\n The Department filed the notice to appear with the immigration court on March 3,\\n\\n2011. Two weeks later, on March 17, 2011, the immigration court held a removal\\n\\nhearing, which Cortez attended via video conference. The immigration judge confirmed\\n\\nthat Cortez was unlawfully present and ordered that he be removed from the country.\\n\\nThere is no indication that Cortez challenged the contents of the notice to appear or the\\n\\nimmigration judge’s authority to order his removal, and Cortez neither administratively\\n\\nnor judicially appealed the removal order on any ground. Cortez was removed from the\\n\\nUnited States in April 2011.\\n\\n B.\\n\\n At some point following his removal, Cortez entered the United States a second\\n\\ntime, again without applying for legal admission. In September 2018, the government\\n\\nlocated Cortez in the vicinity of Lynchburg, Virginia. This time, the government\\n\\ncriminally charged Cortez with illegal reentry under 8 U.S.C. § 1326(a), which is violated\\n\\nwhen an individual who previously was “deported” or “removed” from the country\\n\\n\\n\\n 4\\n\\f“enters, attempts to enter, or is at any time found in, the United States” without legal\\n\\nauthorization.\\n\\n Before the district court, Cortez moved to dismiss the indictment against him. He\\n\\nconceded that he had entered the United States without legal authority, so that the second\\n\\nelement of his criminal charge – unlawful presence – was satisfied. But the first element\\n\\n– a previous removal from the country – was not satisfied, Cortez argued, because even\\n\\nthough he attended his 2011 immigration hearing, “the immigration judge lacked subject\\n\\nmatter jurisdiction to enter an order of removal against him.” J.A. 6. It followed, Cortez\\n\\ncontended, that his 2011 removal order was void, and could not be the basis for a charge\\n\\nunder § 1326(a).\\n\\n As a general rule, Cortez recognized, a criminal defendant may collaterally attack\\n\\na removal order in a prosecution for illegal reentry only if three conditions are met: “(1)\\n\\n[he] exhausted any administrative remedies that may have been available to seek relief\\n\\nagainst the order; (2) the deportation proceedings at which the order was issued\\n\\nimproperly deprived [him] of the opportunity for judicial review; and (3) the entry of the\\n\\norder was fundamentally unfair.” 8 U.S.C. § 1326(d). But according to Cortez, that\\n\\nframework did not apply because he was challenging the “subject matter jurisdiction” of\\n\\nthe immigration court, “an issue that cannot be waived or forfeited.” And even if it did\\n\\napply, Cortez argued, a lack of “subject matter jurisdiction” by itself satisfied all three\\n\\nprerequisites for a collateral attack under § 1326(d).\\n\\n The purported error at the heart of Cortez’s claim was the failure of the notice to\\n\\nappear filed in connection with his 2011 removal proceeding to specify a date and time\\n\\n 5\\n\\ffor his hearing. Under the regulations governing removal proceedings, Cortez explained,\\n\\nproceedings commence and “[j]urisdiction vests” with the immigration judge when a\\n\\n“charging document” is filed with the immigration court. 8 C.F.R. § 1003.14(a). The\\n\\nregulations list three documents that may qualify as “charging document[s],” including a\\n\\n“[n]otice to [a]ppear.” Id. § 1003.13. And a “notice to appear,” Cortez finished, is\\n\\ndefined in the Immigration and Nationality Act (“INA”) itself, which requires that a\\n\\n“notice to appear” include the “time and place at which the proceedings will be held,” 8\\n\\nU.S.C. § 1229(a)(1)(G)(i); see also Pereira v. Sessions, 138 S. Ct. 2105, 2114 (2018)\\n\\n(confirming that notice to appear under § 1229(a) “include[s] . . . the time and place of\\n\\nthe removal proceedings”). Putting all of that together, Cortez argued that because the\\n\\nnotice filed in his case omitted a hearing time, it did not vest the immigration court with\\n\\n“jurisdiction,” rendering his removal order a legal nullity.\\n\\n The district court disagreed. The court did not dispute the premise of Cortez’s\\n\\nargument: that a defect in the notice to appear would implicate the immigration court’s\\n\\njurisdiction and allow for a collateral attack on the removal order. But, the court held, the\\n\\nnotice to appear was not defective, because the regulatory definition of the “notice to\\n\\nappear” that vests a court with “jurisdiction” under 8 C.F.R. § 1003.14(a) does not “list\\n\\nthe time and date of the removal proceedings as required criteria.” J.A. 18 (citing 8\\n\\nC.F.R. § 1003.15(b)–(c)). Cortez, the court reasoned, was pointing to the wrong\\n\\ndefinition of “notice to appear”: The statutory provision in § 1229(a) does not address\\n\\n“the immigration court’s . . . jurisdiction over the proceeding,” but is instead concerned\\n\\nwith the separate issue of providing notice to a noncitizen in a removal proceeding. Id.\\n\\n 6\\n\\f Because Cortez had shown no defect affecting the immigration court’s\\n\\n“jurisdiction,” the court concluded, he could attack his removal order collaterally only if\\n\\nhe could satisfy the standard § 1326(d) requirements. Jumping directly to the third\\n\\nrequirement, the court held that Cortez’s removal order was not “fundamentally unfair,”\\n\\nJ.A. 20, in part because Cortez – who attended his hearing after being provided with oral\\n\\nnotice of the date and time – suffered no “actual prejudice,” J.A. 21. Accordingly, the\\n\\ndistrict court denied Cortez’s motion to dismiss the indictment against him.\\n\\n Cortez pleaded guilty less than two weeks later, and the district court sentenced\\n\\nhim to time served. Cortez’s plea agreement reserved his right to appeal the district\\n\\ncourt’s ruling on his motion to dismiss the indictment, and he timely noticed this appeal.\\n\\n\\n\\n II.\\n\\n Cortez makes the same argument on appeal as he did before the district court:\\n\\nBecause no proper notice to appear was filed in his removal proceedings, the immigration\\n\\ncourt lacked “jurisdiction,” and as a result, there is no valid removal order on which to\\n\\nbase a prosecution for illegal reentry. We review this claim, which turns on purely legal\\n\\nquestions, de novo, United States v. Hatcher, 560 F.3d 222, 224 (4th Cir. 2009), and find\\n\\nthat the district court correctly denied Cortez’s motion to dismiss.\\n\\n Before we even reach Cortez’s argument – that the immigration court lacked\\n\\n“subject matter jurisdiction” to enter his 2011 removal order because of a defect in the\\n\\nnotice to appear filed with the court – we are confronted with a threshold issue. Both\\n\\nparties assume that a successful challenge to the “subject matter jurisdiction” of an\\n\\n 7\\n\\fimmigration court would by itself be grounds for a collateral attack on a removal order,\\n\\nrelieving Cortez of the obligation to satisfy the § 1326(d) requirements that ordinarily\\n\\napply to collateral challenges. We have questions about that assumption, which we\\n\\noutline below.\\n\\n We need not resolve the issue, however, because for two independent reasons,\\n\\nCortez cannot succeed in his challenge to the immigration court’s “jurisdiction.” First,\\n\\nthe regulation on which Cortez relies, 8 C.F.R. § 1003.14(a), is a docketing rule that does\\n\\nnot implicate the immigration court’s adjudicatory authority, referred to as “subject\\n\\nmatter jurisdiction” by the parties. And in any event, we agree with the district court that\\n\\nCortez has failed to show any defect in his notice to appear under that regulation.\\n\\n A.\\n\\n At bottom, this case is about a collateral challenge to a removal order in a criminal\\n\\nproceeding for illegal reentry under 8 U.S.C. § 1326(a). The threshold question\\n\\npresented is whether Cortez may advance his argument – that the immigration court\\n\\nlacked “jurisdiction” to issue a removal order in his case – in this posture. The parties\\n\\nand the district court assumed that Cortez’s challenge to the “subject matter jurisdiction”\\n\\nof the immigration court, if successful, necessarily would allow for a collateral attack on\\n\\nhis removal order, relieving him of the obligation to satisfy the § 1326(d) requirements\\n\\nthat ordinarily apply. But we have doubts about that assumption. And given the breadth\\n\\nof its implications – opening to collateral attack every removal order in proceedings\\n\\ncommenced by an incomplete notice, regardless of the significance of the error or the\\n\\npossibility of prejudice – we do not wish to leave it unaddressed.\\n\\n 8\\n\\f In a criminal proceeding for illegal reentry, the existence of a removal order\\n\\nusually is enough to meet the government’s burden of establishing the defendant’s prior\\n\\nremoval or deportation. United States v. Moreno-Tapia, 848 F.3d 162, 165 (4th Cir.\\n\\n2017). But there is an exception, allowing a defendant to collaterally attack a removal\\n\\norder – so that it no longer serves as a predicate for a criminal reentry charge – when\\n\\nthere was a “procedural flaw in the immigration proceeding” that prevented the\\n\\nnoncitizen from seeking review when the order was issued, thus violating his due process\\n\\nrights. Id. at 169; see also United States v. Mendoza-Lopez, 481 U.S. 828 (1987). Under\\n\\n8 U.S.C. § 1326(d), a noncitizen must make each of three showings to come within that\\n\\nexception and mount a collateral attack: that (1) he “exhausted any administrative\\n\\nremedies” available to seek relief against the removal order; (2) the removal proceedings\\n\\n“improperly deprived [him] of the opportunity for judicial review”; and (3) entry of the\\n\\norder was “fundamentally unfair.”\\n\\n It is readily apparent that Cortez cannot make any of those showings. First, Cortez\\n\\nfailed to exhaust his administrative remedies: He neither administratively appealed the\\n\\nimmigration judge’s decision nor provided any explanation for why he could not do so.\\n\\nSecond, Cortez failed to show that the alleged defect in his proceeding – the absence of a\\n\\nhearing date on the notice filed with the immigration court – somehow deprived him of\\n\\nthe opportunity for judicial review of a removal proceeding of which he had actual notice\\n\\nand in which he actively participated. Finally, Cortez cannot establish “fundamental\\n\\nunfairness,” which requires that “but for the errors complained of, there was a reasonable\\n\\nprobability that he would not have been deported,” United States v. El Shami, 434 F.3d\\n\\n 9\\n\\f659, 665 (4th Cir. 2005). Cortez was promptly provided with oral notice of the date and\\n\\ntime of his hearing, which, again, he attended, and there is no reason to believe that the\\n\\nhearing would have proceeded any differently, much less resulted in a different outcome,\\n\\nhad the notice docketed with the immigration court also provided the same date and time\\n\\ninformation.\\n\\n Thus, Cortez may proceed with his collateral attack only if there is some\\n\\nexception-to-the-exception that would allow him to bypass these normal requirements.\\n\\nCortez argues that there is just such an exception: If he is correct that a defect in the\\n\\nnotice to appear filed with the immigration court to commence his proceedings deprived\\n\\nthe immigration court of “jurisdiction” under 8 C.F.R. § 1003.14(a), then his removal\\n\\norder was void ab initio and necessarily subject to collateral challenge. But Cortez\\n\\nprovides scant authority for that theory, and we question whether he has framed the issue\\n\\ncorrectly.\\n\\n First, contrary to what seems to be Cortez’s assumption, there is no freestanding\\n\\nrule allowing for collateral attacks based on a lack of subject matter jurisdiction. Instead,\\n\\nthe opposite is true: “Even subject-matter jurisdiction . . . may not be attacked\\n\\ncollaterally.” Kontrick v. Ryan, 540 U.S. 443, 455 n.9 (2004) (explaining that a lack of\\n\\nsubject matter jurisdiction may be raised at any stage within the same civil proceeding,\\n\\nbut generally is not grounds for collateral challenge). As we have explained, the interest\\n\\nin the finality of judgments is sufficiently strong that only in exceptional circumstances\\n\\nwill a collateral challenge based on the lack of subject matter jurisdiction be permitted.\\n\\nCooper v. Productive Transp. Servs., Inc. (In re Bulldog Trucking, Inc.), 147 F.3d 347,\\n\\n 10\\n\\f352–53 (4th Cir. 1998). “Mere error in the exercise of jurisdiction” is not enough. Id. at\\n\\n352. Cortez does not allege exceptional circumstances under this standard, so any\\n\\nentitlement he has to raise a “jurisdictional” objection to his removal order in this\\n\\ncollateral criminal proceeding must come, if at all, by way of § 1326(d).\\n\\n Second, there is good reason to question Cortez’s supposition that a claim\\n\\ncharacterized as “jurisdictional” should be exempt from § 1326(d)’s limits, including the\\n\\nstatutory exhaustion requirement. Cortez proceeds by analogy to federal court subject\\n\\nmatter jurisdiction under Article III of the Constitution: Challenges to that jurisdiction\\n\\ncannot be waived or forfeited, see Brickwood Contractors, Inc. v. Datanet Eng’g, Inc.,\\n\\n369 F.3d 385, 390 (4th Cir. 2004) (en banc), and so, Cortez contends, he did not forfeit\\n\\nhis challenge to the immigration court’s authority over his removal proceeding by\\n\\nattending his hearing without objecting, nor by failing to raise the issue on administrative\\n\\nor judicial review as required under § 1326(d)(1)–(2). But an immigration court is not an\\n\\nArticle III court, and a removal proceeding is an agency process, not an Article III\\n\\nadjudication. And as the Supreme Court has instructed, we should not “reflexive[ly]\\n\\nexten[d] to agencies . . . the very real division between the jurisdictional and\\n\\nnonjurisdictional that is applicable to courts.” City of Arlington v. FCC, 569 U.S. 290,\\n\\n297 (2013). Rather, because the power of administrative agencies (unlike courts) is\\n\\nprescribed entirely by statute, any “improper[]” agency action is “ultra vires,” and there is\\n\\n“no principled basis for carving out some arbitrary subset” of agency errors as\\n\\n“jurisdictional.” Id. at 297–98. Cortez’s claim that the immigration court lacked the\\n\\nauthority to hear his case, in other words, is not meaningfully distinct from a more\\n\\n 11\\n\\froutine claim that an immigration court has misconstrued the INA: “[T]he question –\\n\\nwhether framed as an incorrect application of agency authority or an assertion of\\n\\nauthority not conferred – is always whether the agency has gone beyond what Congress\\n\\nhas permitted it to do.” Id.\\n\\n City of Arlington involved the degree of deference owed to an agency\\n\\ninterpretation of a statute bearing on its own “jurisdiction,” or statutory authority. Id. at\\n\\n296–97. Several courts, however, have applied City of Arlington to agency adjudications\\n\\n– precisely the context we face here – and concluded that purported “jurisdictional”\\n\\nclaims are subject to the same statutory limits, including exhaustion requirements and\\n\\nforfeiture rules, as other claims that an agency has acted improperly. See PGS\\n\\nGeophysical AS v. Iancu, 891 F.3d 1354, 1362 (Fed. Cir. 2018); 1621 Route 22 W.\\n\\nOperating Co., LLC v. NLRB, 825 F.3d 128, 140–41 (3d Cir. 2016). Indeed, the Ninth\\n\\nCircuit held as much in the immigration context years before City of Arlington, finding\\n\\nthat a claim that the immigration court “lacked jurisdiction” over a certain group of\\n\\nnoncitizens “turn[s] on a question of statutory interpretation,” so that normal rules of\\n\\nexhaustion and forfeiture apply. Xiao v. Barr, 979 F.2d 151, 153, 155 (1992). In short,\\n\\nwe have significant doubts about Cortez’s assumption that the “jurisdictional” nature of\\n\\nhis challenge to his administrative removal order puts him in a different and special\\n\\ncategory when it comes to judicial review, exempting him from § 1326(d)’s exhaustion\\n\\nrequirements and other limits on collateral attacks.\\n\\n The government, however, has not raised this objection. Instead, it accepts\\n\\nCortez’s premise that a proceeding conducted outside the scope of an immigration court’s\\n\\n 12\\n\\fadjudicatory authority must be deemed void on collateral review. Moreover, other courts\\n\\naddressing similar challenges to the “jurisdiction” of immigration courts have made the\\n\\nsame assumption. See, e.g., Hernandez-Perez v. Whitaker, 911 F.3d 305, 310 (6th Cir.\\n\\n2018) (finding that propriety of notice to appear commencing removal proceedings “can\\n\\nnever be forfeited or waived” (internal quotation marks omitted)). For purposes of this\\n\\nappeal, we need not decide conclusively whether that assumption is well-founded. As we\\n\\nnow explain, Cortez in any event cannot establish that his 2011 removal proceeding was\\n\\nconducted without adjudicatory authority, and that is enough to resolve this case.\\n\\n B.\\n\\n Even accepting Cortez’s threshold presumption – that a “jurisdictional” defect in\\n\\nthe notice to appear that commenced his removal proceedings would entitle him to\\n\\ncollaterally challenge his removal order – we find his argument lacking in two\\n\\nindependent respects. First, the purported defect Cortez has identified – the failure of the\\n\\nnotice to appear filed with the immigration court to include a date and time for his\\n\\nremoval hearing – does not implicate the immigration court’s adjudicatory authority or\\n\\n“jurisdiction.” And second, there is in any event no defect, because the regulations that\\n\\ngovern the filing of a notice to appear do not require inclusion of a hearing date and time.\\n\\n 1.\\n\\n We start with Cortez’s contention that any defect in the notice that commenced his\\n\\nremoval proceedings would deprive the immigration court of “subject matter jurisdiction”\\n\\nto issue a removal order. At the outset, we clarify some terminology: When it comes to\\n\\nadministrative agencies, the question of subject matter jurisdiction “is more appropriately\\n\\n 13\\n\\fframed” as “whether the agency actor, such as the [immigration judge] here, lacked\\n\\nstatutory authority to act” or acted outside its “authority to adjudicate.” United States v.\\n\\nArroyo, 356 F. Supp. 3d 619, 624 (W.D. Tex. 2018) (citing City of Arlington, 569 U.S. at\\n\\n297–98). But however the question is framed, the answer is the same: The regulation on\\n\\nwhich Cortez relies, 8 C.F.R. § 1003.14(a), is an internal docketing rule, not a limit on an\\n\\nimmigration court’s “jurisdiction” or authority to act.\\n\\n Exercising congressionally delegated authority, see 8 U.S.C. § 1103(g)(2), the\\n\\nAttorney General has promulgated regulations governing the initiation of removal\\n\\nproceedings. The regulation central to this case, 8 C.F.R. § 1003.14(a), provides that\\n\\n“[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a\\n\\ncharging document is filed with the Immigration Court.” “Charging document,” in turn,\\n\\nis defined as “the written instrument which initiates a proceeding before an Immigration\\n\\nJudge,” and one such document is a “[n]otice to [a]ppear.” Id. § 1003.13. Finally, a\\n\\nnearby regulation, 8 C.F.R. § 1003.18(b), specifies the contents of a notice to appear, and\\n\\n– unlike its statutory counterpart in 8 U.S.C. § 1229(a)(1) – does not require a date and\\n\\ntime for a subsequent removal hearing. Instead, that information must be included in a\\n\\nnotice to appear only “where practicable”; if not, the immigration court becomes\\n\\nresponsible for scheduling a hearing and providing the noncitizen with notice of the\\n\\n“time, place, and date.” 8 C.F.R. § 1003.18(b).\\n\\n The central question at this stage of our analysis is whether the term “jurisdiction”\\n\\nin § 1003.14(a) signals a limit on the scope of an immigration court’s adjudicatory\\n\\nauthority, so that a hypothetical defect in a notice to appear filed with the immigration\\n\\n 14\\n\\fcourt would deprive the court of authority to hear and decide the case. Both parties\\n\\nassume this to be true. And a substantial majority of courts addressing this issue have\\n\\ndone likewise, treating § 1003.14(a) as though it implicates an immigration court’s\\n\\nadjudicatory authority or “subject matter jurisdiction.” See, e.g., Ali v. Barr, 924 F.3d\\n\\n983, 985–86 (8th Cir. 2019); Banegas Gomez v. Barr, 922 F.3d 101, 111–12 (2d Cir.\\n\\n2019); Karingithi v. Whitaker, 913 F.3d 1158, 1159–62 (9th Cir. 2019); Hernandez-\\n\\nPerez, 911 F.3d at 310. But some courts – including, most recently, the Seventh Circuit –\\n\\nhave questioned this premise, and held instead that § 1003.14(a) is a procedural claim-\\n\\nprocessing rule without jurisdictional implications. See Ortiz-Santiago v. Barr, 924 F.3d\\n\\n956, 962–64 (7th Cir. 2019); see also United States v. Diaz-Martinez, __ F. Supp. 3d __,\\n\\n2019 WL 1940600, at *16 (E.D. Va. May 1, 2019); United States v. Monje-Garcia, No.\\n\\n18-cr-378-1, 2019 U.S. Dist. LEXIS 47323, at *7–9 (N.D. Ill. Jan. 15, 2019); United\\n\\nStates v. Rivera Lopez, 355 F. Supp. 3d 428, 438–39 (E.D. Va. 2018); Arroyo, 356 F.\\n\\nSupp. 3d at 624–30. We agree with those courts, and conclude that § 1003.14(a) is not a\\n\\njurisdictional rule.\\n\\n It is true, as Cortez emphasizes, that § 1003.14(a) refers to the vesting of\\n\\n“jurisdiction,” a word that “[p]roperly used . . . refers to the ‘classes of cases . . . falling\\n\\nwithin a court’s adjudicatory authority.’” Hyman v. City of Gastonia, 466 F.3d 284, 289\\n\\n(4th Cir. 2006) (third alteration in original) (quoting Kontrick, 540 U.S. at 455). But the\\n\\nterm “jurisdiction” also is used “colloquially,” United States v. George, 676 F.3d 249,\\n\\n259 (1st Cir. 2012), and “less than meticulous[ly],” to refer to “claim-processing rules\\n\\nthat do not delineate what cases . . . courts are competent to adjudicate,” Kontrick, 540\\n\\n 15\\n\\fU.S. at 454 (holding that time limit for objection in bankruptcy proceedings is not\\n\\njurisdictional but instead a claim-processing rule). So we cannot simply assume, with the\\n\\nparties, that because § 1003.14(a) refers to “jurisdiction,” it limits an immigration court’s\\n\\nadjudicatory authority. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 90\\n\\n(1998) (“Jurisdiction . . . is a word of many, too many, meanings.” (internal quotation\\n\\nmarks omitted)). Indeed, the Supreme Court in recent years has cautioned against\\n\\nprecisely that mistake, insisting on a sharper distinction between rules that are\\n\\njurisdictional in the formal sense and even the most “emphatic” of non-jurisdictional\\n\\nclaim-processing rules. Union Pac. R.R. v. Bhd. of Locomotive Eng'rs & Trainmen Gen.\\n\\nComm. of Adjustment, 558 U.S. 67, 81 (2009) (internal quotation marks omitted).\\n\\n In drawing that distinction here, we find the Supreme Court’s decision in Union\\n\\nPacific particularly instructive. At issue in that case was the jurisdictional status of an\\n\\nagency rule requiring that parties before an administrative tribunal – there, the National\\n\\nRailroad Adjustment Board – submit proof of settlement efforts in mediation, or\\n\\n“conference,” when initiating grievance proceedings. Id. at 76–80. That requirement, the\\n\\nCourt concluded, was not jurisdictional, in that “its satisfaction does not condition the\\n\\nadjudicatory authority of the Board.” Id. at 82. In reaching that determination, the Court\\n\\nemphasized two factors. First, the Board was granted by statute – not regulation – its\\n\\njurisdiction over “all” employment disputes between carriers and their employees, and\\n\\nthat broad grant of adjudicatory authority was not made contingent on proof of mediation\\n\\nefforts. Id. at 82–83 (internal quotation marks omitted). Nor, the Court noted, had\\n\\nCongress given the Board authority to adopt its own rules of “jurisdictional dimension.”\\n\\n 16\\n\\fId. at 83–84. And second, the function of the mediation rule was to provide “instructions\\n\\non party submissions,” and such “pleading instructions,” the Court concluded, are “claim-\\n\\nprocessing, not jurisdictional, rules.” Id. at 85.\\n\\n The same factors govern here, and lead to the same result. As in Union Pacific,\\n\\nthe immigration courts’ adjudicatory authority over removal proceedings comes not from\\n\\nthe agency regulation codified at 8 C.F.R. § 1003.14(a), but from Congress: It is the INA\\n\\nthat “explicitly and directly grants that authority,” Arroyo, 356 F. Supp. 3d at 624\\n\\n(emphasis omitted), providing that “[a]n immigration judge shall conduct proceedings for\\n\\ndeciding the inadmissibility or deportability of an alien,” 8 U.S.C. § 1229a(a)(1). “That\\n\\nstatutory grant of authority is the immigration judges’ ‘subject matter jurisdiction,’ and it\\n\\npreexisted” – by decades – § 1003.14(a)’s reference to the vesting of “jurisdiction” in\\n\\nimmigration court. Arroyo, 356 F. Supp. 3d at 624. And nothing about that broad and\\n\\nmandatory grant of adjudicatory authority, see Holland v. Pardee Coal Co., 269 F.3d\\n\\n424, 431 (4th Cir. 2001) (noting “general rule that ‘shall’ is mandatory”), is made\\n\\ncontingent on compliance with rules governing notices to appear, whether statutory, see 8\\n\\nU.S.C. § 1229(a) (statutory definition of notice to appear), or regulatory, see 8 C.F.R.\\n\\n§ 1003.18(b). See Union Pac. R.R., 558 U.S. at 83 (mediation requirement is not\\n\\n“moored to” statutory grant of adjudicatory authority).\\n\\n Nor – again paralleling Union Pacific – is there any indication that the regulation\\n\\nat 8 C.F.R. § 1003.14(a) was intended to implement some statutory provision giving the\\n\\nAttorney General the authority to “adopt rules of jurisdictional dimension.” Id. at 83–84;\\n\\nsee also Arroyo, 356 F. Supp. 3d at 629. To deem such a regulation “jurisdictional”\\n\\n 17\\n\\fwould be “to say that the Attorney General is ‘in effect, . . . telling himself what he may\\n\\nor may not do.’” Arroyo, 356 F. Supp. 3d at 629 (quoting Garcia v. Lynch, 786 F.3d 789,\\n\\n797 n.2 (9th Cir. 2015) (Berzon, J., concurring)). That is not the way we generally think\\n\\nof jurisdictional rules, which typically operate as “external constraints,” not “internal\\n\\nrules” that can be changed at will by an agency head. Garcia, 786 F.3d at 797 n.2\\n\\n(Berzon, J., concurring). Indeed, it is in part for that reason that several courts have\\n\\nconcluded that § 1003.14(a) cannot “properly be conceived of as jurisdictional.” Arroyo,\\n\\n356 F. Supp. 3d at 629 (quoting Garcia, 786 F.3d at 797 n.2 (Berzon, J., concurring)); see\\n\\nalso Ortiz-Santiago, 924 F.3d at 963 (“While an agency may adopt rules and processes to\\n\\nmaintain order, it cannot define the scope of its power to hear cases.”); Rivera Lopez, 355\\n\\nF. Supp. 3d at 439 (an agency’s “subject-matter jurisdiction” stems from “congressional\\n\\ngrants of authority,” not “a regulation promulgated by the agency itself”).\\n\\n There is also the question of the regulation’s function. See Union Pac. R.R., 588\\n\\nU.S. at 85 (describing regulation there as functioning “essentially [as] pleading\\n\\ninstructions”). As the Supreme Court has explained, “[a]mong the types of rules that\\n\\nshould not be described as jurisdictional are . . . claim-processing rules,” which “seek to\\n\\npromote the orderly progress of litigation by requiring that the parties take certain\\n\\nprocedural steps at certain specified times.” Henderson ex rel. Henderson v. Shinseki,\\n\\n562 U.S. 428, 435 (2011) (internal quotation marks omitted). On its face, that is\\n\\nprecisely what § 1003.14(a) does, laying out the procedural steps that must be taken to\\n\\ndocket a case before an immigration judge: A “charging document” must be filed with\\n\\nthe immigration court by the government – at the time § 1003.14(a) was promulgated, by\\n\\n 18\\n\\fthe Immigration and Naturalization Service (“INS”), then an agency within the\\n\\nDepartment of Justice – and that document must be accompanied by a certificate showing\\n\\nservice on the opposing party. 8 C.F.R. § 1003.14(a). 1 The text alone, in other words,\\n\\nwith its “emphasis on the initiation of proceedings and on service to the opposing party[,]\\n\\nsuggests [§ 1003.14(a)] is focused not on the immigration court’s fundamental power to\\n\\nact but rather on ‘requiring that the parties take certain procedural steps at certain\\n\\nspecified times,’” making it a claim-processing rule rather than a “genuine jurisdictional\\n\\nrequirement.” Rivera Lopez, 355 F. Supp. 3d at 439 (footnote omitted) (quoting\\n\\nHenderson, 562 U.S. at 435–36).\\n\\n The regulation’s history confirms that reading. Before § 1003.14(a)’s predecessor\\n\\nregulation was adopted in 1987, the INS had the authority both to initiate deportation\\n\\nproceedings and to “terminate [those] proceedings at any time prior to the actual\\n\\ncommencement of the hearing.” Aliens and Nationality; Rules of Procedure for\\n\\nProceedings Before Immigration Judges, 50 Fed. Reg. 51,693, 51,693 (Dec. 19, 1985);\\n\\nsee also Arroyo, 356 F. Supp. 3d at 626–27. The original version of § 1003.14(a) –\\n\\npromulgated as part of a “set of uniform procedural rules” for immigration courts – was\\n\\nintended to give immigration courts control over their own calendars, allowing for\\n\\n 1\\n In full, § 1003.14(a) reads as follows: “Jurisdiction vests, and proceedings\\nbefore an Immigration Judge commence, when a charging document is filed with the\\nImmigration Court by the [INS]. The charging document must include a certificate\\nshowing service on the opposing party pursuant to § 1003.32 which indicates the\\nImmigration Court in which the charging document is filed. However, no charging\\ndocument is required to be filed with the Immigration Court to commence bond\\nproceedings pursuant to [other sections] of this chapter.”\\n\\n\\n 19\\n\\f“optimal scheduling” to expedite hearings, by providing for the certainty of a filed\\n\\ndocument – the “charging document” – and limiting the authority of the INS to “cancel”\\n\\na proceeding once a charging document had been filed. 50 Fed. Reg. at 51,693; see also\\n\\nArroyo, 356 F. Supp. 3d at 626–27 (describing regulatory history); In re G-N-C-, 22 I. &\\n\\nN. Dec. 281, 284 (B.I.A. 1998) (§ 1003.14(a) “marks a clear boundary between the time\\n\\nprior to commencement of proceedings, where [an INS] officer has decisive power to\\n\\ncancel proceedings, and the time following commencement, where the [INS] officer\\n\\nmerely has the privilege to move for dismissal of proceedings”). The filing of a charging\\n\\ndocument such as a “notice to appear,” in other words, “marks an agency internal\\n\\nboundary,” Arroyo, 356 F. Supp. 3d at 628, that gives the immigration courts, rather than\\n\\nthe INS or the Department, “control over the docketing of cases,” id. at 627 (internal\\n\\nquotation marks omitted).\\n\\n We think that regulatory history makes clear, were there any doubt, that\\n\\n§ 1003.14(a) is “not a grant of authority” with jurisdictional implications, but something\\n\\nmore like a docketing rule, providing for “the orderly administration of proceedings,\\n\\nincluding deportation proceedings, before the immigration judges.” Id. at 628; see also\\n\\nRivera Lopez, 355 F. Supp. 3d at 439 (analogizing regulation to “a federal court’s local\\n\\nrules . . . which in no way affect the federal court’s subject-matter jurisdiction”). As the\\n\\nSeventh Circuit concluded, “[w]hat the [agency] was doing was establishing exactly what\\n\\n\\n\\n\\n 20\\n\\fit takes properly to commence a case before [an immigration court]. That decision is not\\n\\none of jurisdictional significance.” Ortiz-Santiago, 924 F.3d at 963. 2\\n\\n 2.\\n\\n Our conclusion that § 1003.14(a) is not a jurisdictional rule by itself forecloses\\n\\nCortez’s attack on his 2011 removal order: Even if there were a defect in the notice to\\n\\nappear that was filed with the immigration court, that court did not lack adjudicatory\\n\\nauthority to issue its order. But Cortez also cannot succeed in his attack for a second and\\n\\nindependent reason: The notice to appear in question was not in fact defective.\\n\\n As previewed above, the question here boils down to whether a notice to appear\\n\\nfiled with an immigration court to commence proceedings under 8 C.F.R. § 1003.14(a)\\n\\nmust include the date and time of the noncitizen’s forthcoming removal hearing – which\\n\\nCortez’s did not. Under the regulation, proceedings are initiated with a “charging\\n\\ndocument,” 8 C.F.R. § 1003.14(a), which in turn is defined as one of three documents,\\n\\nincluding a “[n]otice to [a]ppear,” id. § 1003.13. According to Cortez, the required\\n\\ncontents of that “notice to appear” are controlled by 8 U.S.C. § 1229(a), a statutory\\n\\nprovision entitled “Notice to appear” that describes the “written notice [that] . . . shall be\\n\\ngiven in person” to the noncitizen, and requires such notice to specify the “time and place\\n\\n 2\\n Cortez points to our court’s unpublished decision in Shogunle v. Holder, 336 F.\\nApp’x 322 (4th Cir. 2009) (per curiam), to support his position that “jurisdiction” does\\nnot vest in the immigration court until the proper notice is filed. But Shogunle simply\\napplied 8 C.F.R. § 1003.14(a) without deciding whether that rule uses the word\\n“jurisdiction” in the proper or colloquial sense. And in any event, “unpublished opinions\\nare not binding in this [c]ircuit.” United States v. King, 673 F.3d 274, 280 n.5 (4th Cir.\\n2012).\\n\\n\\n 21\\n\\fat which the proceedings will be held,” id. § 1229(a)(1)(G)(i). And in its recent decision\\n\\nin Pereira v. Sessions, Cortez emphasizes, the Supreme Court held that a “notice to\\n\\nappear” that did not include a hearing time could not qualify as a “notice to appear under\\n\\nsection 1229(a).” 138 S. Ct. at 2114 (quoting 8 U.S.C. § 1229b(d)(1)(A)).\\n\\n The government disagrees, and maintains that § 1003.14(a) is satisfied by a notice\\n\\nto appear that complies with the separate regulatory definition set out in 8 C.F.R.\\n\\n§ 1003.15(b)–(c). That definition specifies what information must be “provide[d] . . . to\\n\\nthe Immigration Court,” id. § 1003.15(c), and unlike § 1229(a), as noted above, it does\\n\\nnot include on its detailed list of items the date and time of a subsequent removal hearing.\\n\\nInstead, date and time information must be included in a notice to appear filed under\\n\\n§ 1003.14(a) only “where practicable,” id. § 1003.18(b); in other cases, the immigration\\n\\ncourt itself is responsible for ensuring notice to a noncitizen of a hearing’s “time, place,\\n\\nand date,” id. And Pereira, the government finishes, has no bearing on this matter,\\n\\nbecause it considered only the meaning of a “notice to appear under section 1229(a),”\\n\\n138 S. Ct. at 2114 (quoting 8 U.S.C. § 1229b(d)(1)(A)), and did not address the\\n\\ncommencement of removal proceedings as governed by federal regulations.\\n\\n Many courts have considered this question since Periera was decided in 2018, and\\n\\nthey overwhelmingly have adopted the government’s position. Our sister circuits, with\\n\\none exception, have agreed that the required contents of the notice to appear that\\n\\ncommences removal proceedings under 8 C.F.R. § 1003.14(a) are those set out by\\n\\nregulation, not the INA. See Ali, 924 F.3d at 986; Banegas Gomez, 922 F.3d at 110–12;\\n\\nSantos-Santos v. Barr, 917 F.3d 486, 489–91 (6th Cir. 2019); Karingithi, 913 F.3d at\\n\\n 22\\n\\f1159–62; Hernandez-Perez, 911 F.3d at 310–15. But see Ortiz-Santiago, 924 F.3d at\\n\\n959–63 (indicating that notice to appear without date and time violated § 1003.14(a), but\\n\\nfinding issue forfeited because § 1003.14(a) is nonjurisdictional). 3 And while a\\n\\n“handful” of district courts have ruled for the noncitizen on this issue, “far more district\\n\\ncourts” have sided with the government. United States v. Gomez-Salinas, No. 2:19cr10,\\n\\n2019 WL 1141063, at *5 (E.D. Va. Mar. 12, 2019).\\n\\n We agree with the substantial majority of courts to address this issue, as well as\\n\\nthe district court here: It is the regulatory definition of “notice to appear,” and not\\n\\n§ 1229(a)’s definition, that controls in determining when a case is properly docketed with\\n\\nthe immigration court under 8 C.F.R. § 1003.14(a). As the district court emphasized, the\\n\\nregulations at 8 C.F.R. § 1003.15(b)–(c), specifying the contents of a “notice to appear”\\n\\nfiled to commence immigration court proceedings, do not cross-reference § 1229(a) or\\n\\notherwise incorporate that provision’s requirements. Instead, the regulations set out a\\n\\ndetailed and exhaustive list of their own, enumerating twelve separate items that must be\\n\\nincluded in a notice to appear filed under § 1003.14(a) – with the time and date of a\\n\\nfuture hearing not among them. See Santos-Santos, 917 F.3d at 490 (explaining that\\n\\nregulations establish their own criteria for “notice to appear” rather than incorporating\\n\\n\\n\\n\\n 3\\n Other circuit courts also have ruled for the government in unpublished decisions.\\nThat includes our court, which has issued two per curiam opinions adopting the\\ngovernment’s view. See Leonard v. Whitaker, 746 F. App’x 269, 269–70 (4th Cir. 2018);\\nUnited States v. Perez-Arellano, 756 F. App’x 291, 294 (4th Cir. 2018).\\n\\n\\n 23\\n\\f§ 1229(a)). 4 “If the regulations did not clearly enumerate requirements for the contents\\n\\nof a notice to appear” for purposes of § 1003.14(a), “we might presume they sub silentio\\n\\nincorporated § 1229(a)’s definition. But the plain, exhaustive list of requirements in the\\n\\n. . . regulations renders that presumption inapplicable here.” Karingithi, 913 F.3d at 1160\\n\\n(citation omitted). Indeed, reading into the regulatory list an additional requirement of\\n\\ntime and date information would render meaningless the regulations’ specific command\\n\\nthat such information must be included only “where practicable.” Id. (quoting 8 C.F.R.\\n\\n§ 1003.18(b)).\\n\\n Both text and structure compel the conclusion that it is this separate regulatory\\n\\ndefinition of “notice to appear,” and not the statutory definition in § 1229(a), that\\n\\n“control[s] when and how,” J.A. 17, a case is commenced before an immigration judge\\n\\nfor purposes of § 1003.14(a). First, the regulatory definition, codified at 8 C.F.R.\\n\\n§ 1003.15, is immediately adjacent to the docketing rule, at § 1003.14, by itself a strong\\n\\nindication that the regulatory definition controls. See Doe v. Cooper, 842 F.3d 833, 844\\n\\n(4th Cir. 2016) (describing presumption that adjacent subsections should be read\\n\\n 4\\n Specifically, 8 C.F.R. § 1003.15(b)–(c) require that a notice to appear filed with\\nan immigration court to commence proceedings include the following information: the\\nnature of the proceedings, the legal authority under which the proceedings are conducted,\\nthe acts or conduct of the noncitizen alleged to be in violation of law, the charges against\\nthe noncitizen and the statutory provisions alleged to have been violated, notice that the\\nnoncitizen may be represented by counsel, the address of the immigration court where the\\nnotice to appear is being filed, a statement that the noncitizen must advise that\\nimmigration court of his or her address and telephone number, the noncitizen’s name and\\nany known aliases, the noncitizen’s address, the noncitizen’s registration number, the\\nnoncitizen’s alleged nationality and citizenship, and the language that the noncitizen\\nunderstands.\\n\\n\\n 24\\n\\fharmoniously). And the text of the regulatory definition of “notice to appear” is a\\n\\nsubstantive match with § 1003.14(a) in a way that the statutory definition is not. Both the\\n\\nregulatory provisions are concerned expressly with the contents of the Department’s\\n\\nfiling in the immigration court: Section 1003.14(a) provides that proceedings commence\\n\\n“when a charging document is filed with the Immigration Court,” and § 1003.15\\n\\ndescribes the information that must be provided by the government “to the Immigration\\n\\nCourt.” The statute, in contrast, describes what “notice” must be “given” to a noncitizen\\n\\nin removal proceedings. 8 U.S.C. § 1229(a)(1) (requiring that a notice to appear “shall be\\n\\ngiven . . . to the alien”). That concern is of course important, but it also is distinct from\\n\\nthe question of what information must be provided to an immigration court at a case’s\\n\\noutset – a question on which § 1229(a) is silent. 5\\n\\n Our reading of the statute and regulations is consistent not only with the decisions\\n\\nof the many courts listed above, but also with the position taken by the Board of\\n\\nImmigration Appeals. In a precedential decision issued shortly after the Supreme Court\\n\\nruled in Pereira, the Board found that it is the regulatory definition in § 1003.15(b)–(c)\\n\\nthat controls the required content of a “notice to appear” to initiate proceedings before an\\n\\n\\n 5\\n Cortez suggests that the title of the statutory section in question – “Initiation of\\nremoval proceedings,” 8 U.S.C. § 1229 – suggests that it establishes filing as well as\\nnotice requirements. But the statutory text is clear, and clearly limited to the notice to be\\nprovided to a noncitizen in removal proceedings, giving us no warrant to reason by\\nimplication from the title. See Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S. Ct.\\n883, 893 (2018) (while section headings may “supply cues” as to congressional intent,\\nthey “cannot limit the plain meaning of a statutory text” (internal quotation marks\\nomitted)).\\n\\n\\n 25\\n\\fimmigration judge. In re Bermudez-Cota, 27 I. & N. Dec. 441, 443–45 (B.I.A. 2018).\\n\\nThat regulation, the Board explained, does not mandate that the document specify the\\n\\ntime and date of a future removal hearing. Id. at 445. Accordingly, the Board rejected a\\n\\nnoncitizen’s claim that his proceedings should be terminated because the notice to appear\\n\\nfiled with the immigration court omitted that information. Id. at 447. 6\\n\\n Cortez’s contrary argument relies primarily on the Supreme Court’s decision in\\n\\nPereira, holding that the requirements of 8 U.S.C. § 1229(a) are satisfied only by a\\n\\n“notice to appear” that includes date and time information for a removal hearing. But\\n\\nlike the district court, as well as other courts to consider the question, we think that\\n\\nreliance is misplaced. See J.A. 17–18 (distinguishing Pereira); Banegas Gomez, 922\\n\\nF.3d at 111 (same); Santos-Santos, 917 F.3d at 489–90 (same); Karingithi, 913 F.3d at\\n\\n1160–61 (same).\\n\\n\\n\\n\\n 6\\n The Board also found in Bermudez-Cota that the statutory definition in § 1229(a)\\nis satisfied by receipt of “proper notice of the time and place of [a removal] proceeding”\\nsubsequent to service of a “notice to appear” initially filed with an immigration court. 27\\nI. & N. Dec. at 447; see also In re Mendoza-Hernandez, 27 I. & N. Dec. 520, 529 (B.I.A.\\n2019) (two-step notice satisfies the INA’s notice requirements). We recognize that there\\nis disagreement on this point, with the Ninth Circuit recently holding that a two-step\\nnotice process does not comport with the statutory definition of “notice to appear” under\\n§ 1229(a) and thus does not trigger the “stop-time” rule that limits the period of a\\nnoncitizen’s physical presence in the United States for purposes of cancellation of\\nremoval relief. Lopez v. Barr, 925 F.3d 396, 405 (2019). We have no occasion to\\naddress that issue here. Cortez argues only that the notice to appear filed in immigration\\ncourt failed to vest that court with “jurisdiction” under 8 C.F.R. § 1003.14(a); he raises\\nno independent claim that he received improper notice under 8 U.S.C. § 1229(a), nor any\\nother statutory claim.\\n\\n\\n 26\\n\\f At issue in Pereira was a distinct statutory question at the intersection of two INA\\n\\nprovisions. Under the first, providing for the so-called “stop-time” rule, the period of a\\n\\nnoncitizen’s continuous presence in the United States – which governs eligibility for\\n\\ncertain forms of relief from removal – is “deemed to end . . . when the alien is served a\\n\\nnotice to appear under section 1229(a).” 8 U.S.C. § 1229b(d)(1) (emphasis added). And\\n\\n“section 1229(a)” is the by-now familiar statutory section specifying that a “notice to\\n\\nappear” must include, among other information, “[t]he time and place at which [removal]\\n\\nproceedings will be held.” Id. § 1229(a)(1)(G)(i). In Pereira, the Court held that\\n\\n§ 1229b(d)(1)’s stop-time rule was not triggered by a notice to appear that omitted the\\n\\ndate and time of a removal hearing. “By expressly referencing § 1229(a),” the Court\\n\\nreasoned, the stop-time provision “specifies where to look to find out what ‘notice to\\n\\nappear’ means.” 138 S. Ct. at 2114. And § 1229(a), in turn, “clarifies that the type of\\n\\nnotice” called for under the stop-time provision, id., is one that includes “[t]he time and\\n\\nplace at which the [removal] proceedings will be held,” id. (alterations in original)\\n\\n(quoting 8 U.S.C. § 1229(a)(1)(G)(i)).\\n\\n That reasoning has no application here. As highlighted above, the regulatory\\n\\ndefinition of “notice to appear” in § 1003.14(a), unlike the stop-time provision at 8\\n\\nU.S.C. § 1229b(d)(1), does not cross-reference “a notice to appear under section\\n\\n1229(a).” The “glue that bond[ed]” the stop-time rule to § 1229(a)’s requirements in\\n\\nPereira, 138 S. Ct. at 2117, in other words, is missing when it comes to § 1003.14(a)’s\\n\\ndocketing rule. See Banegas Gomez, 922 F.3d at 111 (“[N]o such statutory glue bonds\\n\\nthe Immigration Court’s [authority under § 1003.14(a)] to § 1229(a)’s requirements.”).\\n\\n 27\\n\\fAnd for the reasons given above, there is nothing else to suggest that “Pereira’s\\n\\ndefinition of a ‘notice to appear under section 1229(a)’” would “govern the meaning of\\n\\n‘notice to appear’ under an unrelated regulatory provision.” Karingithi, 913 F.3d at\\n\\n1161. On the contrary, Pereira stressed repeatedly that its holding was “narrow,” 138 S.\\n\\nCt. at 2110, addressing the requirements of a notice to appear only in the “context” of the\\n\\nINA’s notice and stop-time provisions, id. at 2115. The filing regulations at issue in this\\n\\ncase were never mentioned in Pereira, and Pereira never indicated that its holding would\\n\\napply to the “distinct . . . regulations at issue here,” Santos-Santos, 917 F.3d at 489.\\n\\n Cortez has one final argument: Even if not mandated by Pereira, we should read\\n\\n“notice to appear” under the regulations to require the same content as a “notice to\\n\\nappear” under § 1229(a), either because the agency did not intend to create a system with\\n\\ntwo different and distinct “notices to appear,” or because whatever the agency’s intent, it\\n\\nlacked authority to bypass the statutory specifications for a “notice to appear.” We\\n\\ndisagree.\\n\\n With respect to the agency’s intent, Cortez points to regulatory history suggesting,\\n\\nhe says, that the definition at 8 C.F.R. § 1003.15(b)–(c) was promulgated in order to\\n\\n“implement[] the language of the [INA] indicating that the time and place of the hearing\\n\\nmust be on the Notice to Appear,” Inspection and Expedited Removal of Aliens, 62 Fed.\\n\\nReg. 444, 449 (Jan. 3, 1997). But as described above, the definition in fact does not\\n\\ninclude that requirement; instead, the regulations expressly reject it, providing that date\\n\\nand time information is to be provided in a notice to appear filed under § 1003.14(a) only\\n\\n“where practicable.” 8 C.F.R. § 1003.18(b). The regulations, that is, unambiguously do\\n\\n 28\\n\\fcreate a dichotomy between the notice that must be given to a noncitizen under statutory\\n\\n§ 1229(a) and the information that must be provided to an immigration court to\\n\\ncommence proceedings under regulatory § 1003.14(a). In light of that textual clarity, we\\n\\nneed not delve deeply into the tricky question of regulatory intent. See Tenn. Valley\\n\\nAuth. v. Hill, 437 U.S. 153, 184 n.29 (1978) (where text is “plain and unambiguous on its\\n\\nface,” courts do not look to “history as a guide to its meaning”).\\n\\n Cortez’s argument fares no better when it comes to the agency’s authority.\\n\\nAccording to Cortez, a regulatory definition for a “notice to appear” that does not\\n\\nincorporate § 1229(a)’s date and time requirement conflicts with the INA and is therefore\\n\\nvoid. But there is no conflict because, as we have explained, the regulations in question\\n\\nand § 1229(a) speak to different issues – filings in the immigration court to initiate\\n\\nproceedings, on the one hand, and notice to noncitizens of removal hearings, on the other\\n\\n– and the INA “says nothing about” how a case is to be docketed with the immigration\\n\\ncourt. Karingithi, 913 F.3d at 1160; see also Banegas Gomez, 922 F.3d at 110 (the INA\\n\\n“does not . . . explain when or how jurisdiction vests” in immigration courts (internal\\n\\nquotation marks omitted)). Because § 1003.14(a)’s docketing procedures are a product of\\n\\nregulation, not dictated by statute, the agency is free to define qualifying charging\\n\\ndocuments differently than the document described in § 1229(a) and used for other\\n\\npurposes.\\n\\n Accordingly, we hold that it is the regulatory definition of a “notice to appear” –\\n\\nnot the definition at 8 U.S.C. § 1229(a) – that controls whether the government properly\\n\\ninitiated an immigration proceeding under 8 C.F.R. § 1003.14(a). The notice to appear\\n\\n 29\\n\\ffiled with the immigration court in Cortez’s case conformed to that regulatory definition.\\n\\nFor that reason, as well, Cortez’s collateral attack on his 2011 removal order cannot\\n\\nsucceed.\\n\\n\\n\\n III.\\n\\n For the foregoing reasons, we affirm the judgment of the district court.\\n\\n AFFIRMED\\n\\n\\n\\n\\n 30\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4418544/\", \"author_raw\": \"PAMELA HARRIS, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"MOTZ"},"judge2":{"kind":"string","value":"AGEE"},"judge3":{"kind":"string","value":"HARRIS"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"MOTZ\": \", Circuit\", \"AGEE\": \", Circuit\", \"HARRIS\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4641291/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Juan Cortez\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-07-19\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 19-4055\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nJUAN CORTEZ, a/k/a Jasinto Morales,\n\n Defendant - Appellant.\n\n------------------------------\n\nSTEVEN ABRAMS; ESMERALDA CABRERA; TEOFILO CHAPA; JEFFREY\nS. CHASE; GEORGE T. CHEW; MATTHEW J. D’ANGELO; BRUCE J.\nEINHORN; CECELIA M. ESPENOZA; NOEL FERRIS; JOHN F. GOSSART,\nJR.; MIRIAM HAYWARD; REBECCA JAMIL; WILLIAM P. JOYCE; CAROL\nKING; ELIZABETH A. LAMB; MARGARET MCMANUS; CHARLES ERNST\nPAZAR; LAURA RAMIREZ; JOHN W. RICHARDSON; LORY DIANA\nROSENBERG; SUSAN ROY; PAUL WILLIAM SCHMIDT; DENISE\nNOONAN SLAVIN; ANDREA H. SLOAN; WILLIAM PETER VAN WYKE;\nGUSTAVO D. VILLAGELIU; POLLY A. WEBBER,\n\n Amici Supporting Appellant.\n\n\nAppeal from the United States District Court for the Western District of Virginia, at\nLynchburg. Norman K. Moon, Senior District Judge. (6:18-cr-00022-NKM-1)\n\n\nArgued: May 9, 2019 Decided: July 17, 2019\n Amended: July 19, 2019\n\n\nBefore MOTZ, AGEE, and HARRIS, Circuit Judges.\n\fAffirmed by published opinion. Judge Harris wrote the opinion, in which Judge Motz\nand Judge Agee joined.\n\n\nARGUED: Erin Margaret Trodden, OFFICE OF THE FEDERAL PUBLIC\nDEFENDER, Harrisonburg, Virginia, for Appellant. Laura Day Rottenborn, OFFICE OF\nTHE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. ON BRIEF:\nJuval O. Scott, Federal Public Defender, Roanoke, Virginia, Lisa M. Lorish, Assistant\nFederal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\nCharlottesville, Virginia, for Appellant. Thomas T. Cullen, United States Attorney,\nOFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.\n\n\n\n\n 2\n\fPAMELA HARRIS, Circuit Judge:\n\n Juan Cortez, a citizen of Mexico, was charged with illegally reentering the United\n\nStates after having been removed years prior. Cortez conceded that he was unlawfully\n\npresent, but argued that his initial removal order was invalid because of an alleged filing\n\ndefect that deprived the immigration court of “jurisdiction” over his case. The district\n\ncourt rejected that argument, and Cortez subsequently pleaded guilty while preserving his\n\nright to raise the issue on appeal.\n\n We affirm the district court’s order. We first hold that the premise of Cortez’s\n\nargument – that the purported filing defect in his case deprived the immigration court of\n\nauthority to enter a removal order, so that he may collaterally challenge that order in\n\nsubsequent criminal proceedings – is incorrect. And in any event, there in fact was no\n\ndefect. As the district court explained, the applicable regulations do not require that the\n\ninformation identified by Cortez – a date and time for a subsequent removal hearing – be\n\nincluded in the “notice to appear” that is filed with an immigration court to initiate\n\nproceedings.\n\n\n\n\n I.\n\n A.\n\n Juan Cortez is a citizen of Mexico who has been found to be unlawfully present in\n\nthe United States on two occasions. The first was in 2011. On February 27 of that year,\n\nthe Department of Homeland Security (“Department”) served Cortez with a document\n\n\n 3\n\flabeled “Notice to Appear.” That notice advised him, among other things, that he was\n\ncharged with being unlawfully present in the country, and that the Department was\n\ninitiating removal proceedings against him. The notice provided Cortez with the location\n\nof the immigration court where his removal hearing would be held, but did not provide a\n\ndate and time, stating only that the hearing would occur “on a date to be set at a time to\n\nbe set.” J.A. 10. At the same time it served Cortez with this written notice, however, the\n\nDepartment orally informed him of his hearing date and time.\n\n The Department filed the notice to appear with the immigration court on March 3,\n\n2011. Two weeks later, on March 17, 2011, the immigration court held a removal\n\nhearing, which Cortez attended via video conference. The immigration judge confirmed\n\nthat Cortez was unlawfully present and ordered that he be removed from the country.\n\nThere is no indication that Cortez challenged the contents of the notice to appear or the\n\nimmigration judge’s authority to order his removal, and Cortez neither administratively\n\nnor judicially appealed the removal order on any ground. Cortez was removed from the\n\nUnited States in April 2011.\n\n B.\n\n At some point following his removal, Cortez entered the United States a second\n\ntime, again without applying for legal admission. In September 2018, the government\n\nlocated Cortez in the vicinity of Lynchburg, Virginia. This time, the government\n\ncriminally charged Cortez with illegal reentry under 8 U.S.C. § 1326(a), which is violated\n\nwhen an individual who previously was “deported” or “removed” from the country\n\n\n\n 4\n\f“enters, attempts to enter, or is at any time found in, the United States” without legal\n\nauthorization.\n\n Before the district court, Cortez moved to dismiss the indictment against him. He\n\nconceded that he had entered the United States without legal authority, so that the second\n\nelement of his criminal charge – unlawful presence – was satisfied. But the first element\n\n– a previous removal from the country – was not satisfied, Cortez argued, because even\n\nthough he attended his 2011 immigration hearing, “the immigration judge lacked subject\n\nmatter jurisdiction to enter an order of removal against him.” J.A. 6. It followed, Cortez\n\ncontended, that his 2011 removal order was void, and could not be the basis for a charge\n\nunder § 1326(a).\n\n As a general rule, Cortez recognized, a criminal defendant may collaterally attack\n\na removal order in a prosecution for illegal reentry only if three conditions are met: “(1)\n\n[he] exhausted any administrative remedies that may have been available to seek relief\n\nagainst the order; (2) the deportation proceedings at which the order was issued\n\nimproperly deprived [him] of the opportunity for judicial review; and (3) the entry of the\n\norder was fundamentally unfair.” 8 U.S.C. § 1326(d). But according to Cortez, that\n\nframework did not apply because he was challenging the “subject matter jurisdiction” of\n\nthe immigration court, “an issue that cannot be waived or forfeited.” And even if it did\n\napply, Cortez argued, a lack of “subject matter jurisdiction” by itself satisfied all three\n\nprerequisites for a collateral attack under § 1326(d).\n\n The purported error at the heart of Cortez’s claim was the failure of the notice to\n\nappear filed in connection with his 2011 removal proceeding to specify a date and time\n\n 5\n\ffor his hearing. Under the regulations governing removal proceedings, Cortez explained,\n\nproceedings commence and “[j]urisdiction vests” with the immigration judge when a\n\n“charging document” is filed with the immigration court. 8 C.F.R. § 1003.14(a). The\n\nregulations list three documents that may qualify as “charging document[s],” including a\n\n“[n]otice to [a]ppear.” Id. § 1003.13. And a “notice to appear,” Cortez finished, is\n\ndefined in the Immigration and Nationality Act (“INA”) itself, which requires that a\n\n“notice to appear” include the “time and place at which the proceedings will be held,” 8\n\nU.S.C. § 1229(a)(1)(G)(i); see also Pereira v. Sessions, 138 S. Ct. 2105, 2114 (2018)\n\n(confirming that notice to appear under § 1229(a) “include[s] . . . the time and place of\n\nthe removal proceedings”). Putting all of that together, Cortez argued that because the\n\nnotice filed in his case omitted a hearing time, it did not vest the immigration court with\n\n“jurisdiction,” rendering his removal order a legal nullity.\n\n The district court disagreed. The court did not dispute the premise of Cortez’s\n\nargument: that a defect in the notice to appear would implicate the immigration court’s\n\njurisdiction and allow for a collateral attack on the removal order. But, the court held, the\n\nnotice to appear was not defective, because the regulatory definition of the “notice to\n\nappear” that vests a court with “jurisdiction” under 8 C.F.R. § 1003.14(a) does not “list\n\nthe time and date of the removal proceedings as required criteria.” J.A. 18 (citing 8\n\nC.F.R. § 1003.15(b)–(c)). Cortez, the court reasoned, was pointing to the wrong\n\ndefinition of “notice to appear”: The statutory provision in § 1229(a) does not address\n\n“the immigration court’s . . . jurisdiction over the proceeding,” but is instead concerned\n\nwith the separate issue of providing notice to a noncitizen in a removal proceeding. Id.\n\n 6\n\f Because Cortez had shown no defect affecting the immigration court’s\n\n“jurisdiction,” the court concluded, he could attack his removal order collaterally only if\n\nhe could satisfy the standard § 1326(d) requirements. Jumping directly to the third\n\nrequirement, the court held that Cortez’s removal order was not “fundamentally unfair,”\n\nJ.A. 20, in part because Cortez – who attended his hearing after being provided with oral\n\nnotice of the date and time – suffered no “actual prejudice,” J.A. 21. Accordingly, the\n\ndistrict court denied Cortez’s motion to dismiss the indictment against him.\n\n Cortez pleaded guilty less than two weeks later, and the district court sentenced\n\nhim to time served. Cortez’s plea agreement reserved his right to appeal the district\n\ncourt’s ruling on his motion to dismiss the indictment, and he timely noticed this appeal.\n\n\n\n II.\n\n Cortez makes the same argument on appeal as he did before the district court:\n\nBecause no proper notice to appear was filed in his removal proceedings, the immigration\n\ncourt lacked “jurisdiction,” and as a result, there is no valid removal order on which to\n\nbase a prosecution for illegal reentry. We review this claim, which turns on purely legal\n\nquestions, de novo, United States v. Hatcher, 560 F.3d 222, 224 (4th Cir. 2009), and find\n\nthat the district court correctly denied Cortez’s motion to dismiss.\n\n Before we even reach Cortez’s argument – that the immigration court lacked\n\n“subject matter jurisdiction” to enter his 2011 removal order because of a defect in the\n\nnotice to appear filed with the court – we are confronted with a threshold issue. Both\n\nparties assume that a successful challenge to the “subject matter jurisdiction” of an\n\n 7\n\fimmigration court would by itself be grounds for a collateral attack on a removal order,\n\nrelieving Cortez of the obligation to satisfy the § 1326(d) requirements that ordinarily\n\napply to collateral challenges. We have questions about that assumption, which we\n\noutline below.\n\n We need not resolve the issue, however, because for two independent reasons,\n\nCortez cannot succeed in his challenge to the immigration court’s “jurisdiction.” First,\n\nthe regulation on which Cortez relies, 8 C.F.R. § 1003.14(a), is a docketing rule that does\n\nnot implicate the immigration court’s adjudicatory authority, referred to as “subject\n\nmatter jurisdiction” by the parties. And in any event, we agree with the district court that\n\nCortez has failed to show any defect in his notice to appear under that regulation.\n\n A.\n\n At bottom, this case is about a collateral challenge to a removal order in a criminal\n\nproceeding for illegal reentry under 8 U.S.C. § 1326(a). The threshold question\n\npresented is whether Cortez may advance his argument – that the immigration court\n\nlacked “jurisdiction” to issue a removal order in his case – in this posture. The parties\n\nand the district court assumed that Cortez’s challenge to the “subject matter jurisdiction”\n\nof the immigration court, if successful, necessarily would allow for a collateral attack on\n\nhis removal order, relieving him of the obligation to satisfy the § 1326(d) requirements\n\nthat ordinarily apply. But we have doubts about that assumption. And given the breadth\n\nof its implications – opening to collateral attack every removal order in proceedings\n\ncommenced by an incomplete notice, regardless of the significance of the error or the\n\npossibility of prejudice – we do not wish to leave it unaddressed.\n\n 8\n\f In a criminal proceeding for illegal reentry, the existence of a removal order\n\nusually is enough to meet the government’s burden of establishing the defendant’s prior\n\nremoval or deportation. United States v. Moreno-Tapia, 848 F.3d 162, 165 (4th Cir.\n\n2017). But there is an exception, allowing a defendant to collaterally attack a removal\n\norder – so that it no longer serves as a predicate for a criminal reentry charge – when\n\nthere was a “procedural flaw in the immigration proceeding” that prevented the\n\nnoncitizen from seeking review when the order was issued, thus violating his due process\n\nrights. Id. at 169; see also United States v. Mendoza-Lopez, 481 U.S. 828 (1987). Under\n\n8 U.S.C. § 1326(d), a noncitizen must make each of three showings to come within that\n\nexception and mount a collateral attack: that (1) he “exhausted any administrative\n\nremedies” available to seek relief against the removal order; (2) the removal proceedings\n\n“improperly deprived [him] of the opportunity for judicial review”; and (3) entry of the\n\norder was “fundamentally unfair.”\n\n It is readily apparent that Cortez cannot make any of those showings. First, Cortez\n\nfailed to exhaust his administrative remedies: He neither administratively appealed the\n\nimmigration judge’s decision nor provided any explanation for why he could not do so.\n\nSecond, Cortez failed to show that the alleged defect in his proceeding – the absence of a\n\nhearing date on the notice filed with the immigration court – somehow deprived him of\n\nthe opportunity for judicial review of a removal proceeding of which he had actual notice\n\nand in which he actively participated. Finally, Cortez cannot establish “fundamental\n\nunfairness,” which requires that “but for the errors complained of, there was a reasonable\n\nprobability that he would not have been deported,” United States v. El Shami, 434 F.3d\n\n 9\n\f659, 665 (4th Cir. 2005). Cortez was promptly provided with oral notice of the date and\n\ntime of his hearing, which, again, he attended, and there is no reason to believe that the\n\nhearing would have proceeded any differently, much less resulted in a different outcome,\n\nhad the notice docketed with the immigration court also provided the same date and time\n\ninformation.\n\n Thus, Cortez may proceed with his collateral attack only if there is some\n\nexception-to-the-exception that would allow him to bypass these normal requirements.\n\nCortez argues that there is just such an exception: If he is correct that a defect in the\n\nnotice to appear filed with the immigration court to commence his proceedings deprived\n\nthe immigration court of “jurisdiction” under 8 C.F.R. § 1003.14(a), then his removal\n\norder was void ab initio and necessarily subject to collateral challenge. But Cortez\n\nprovides scant authority for that theory, and we question whether he has framed the issue\n\ncorrectly.\n\n First, contrary to what seems to be Cortez’s assumption, there is no freestanding\n\nrule allowing for collateral attacks based on a lack of subject matter jurisdiction. Instead,\n\nthe opposite is true: “Even subject-matter jurisdiction . . . may not be attacked\n\ncollaterally.” Kontrick v. Ryan, 540 U.S. 443, 455 n.9 (2004) (explaining that a lack of\n\nsubject matter jurisdiction may be raised at any stage within the same civil proceeding,\n\nbut generally is not grounds for collateral challenge). As we have explained, the interest\n\nin the finality of judgments is sufficiently strong that only in exceptional circumstances\n\nwill a collateral challenge based on the lack of subject matter jurisdiction be permitted.\n\nCooper v. Productive Transp. Servs., Inc. (In re Bulldog Trucking, Inc.), 147 F.3d 347,\n\n 10\n\f352–53 (4th Cir. 1998). “Mere error in the exercise of jurisdiction” is not enough. Id. at\n\n352. Cortez does not allege exceptional circumstances under this standard, so any\n\nentitlement he has to raise a “jurisdictional” objection to his removal order in this\n\ncollateral criminal proceeding must come, if at all, by way of § 1326(d).\n\n Second, there is good reason to question Cortez’s supposition that a claim\n\ncharacterized as “jurisdictional” should be exempt from § 1326(d)’s limits, including the\n\nstatutory exhaustion requirement. Cortez proceeds by analogy to federal court subject\n\nmatter jurisdiction under Article III of the Constitution: Challenges to that jurisdiction\n\ncannot be waived or forfeited, see Brickwood Contractors, Inc. v. Datanet Eng’g, Inc.,\n\n369 F.3d 385, 390 (4th Cir. 2004) (en banc), and so, Cortez contends, he did not forfeit\n\nhis challenge to the immigration court’s authority over his removal proceeding by\n\nattending his hearing without objecting, nor by failing to raise the issue on administrative\n\nor judicial review as required under § 1326(d)(1)–(2). But an immigration court is not an\n\nArticle III court, and a removal proceeding is an agency process, not an Article III\n\nadjudication. And as the Supreme Court has instructed, we should not “reflexive[ly]\n\nexten[d] to agencies . . . the very real division between the jurisdictional and\n\nnonjurisdictional that is applicable to courts.” City of Arlington v. FCC, 569 U.S. 290,\n\n297 (2013). Rather, because the power of administrative agencies (unlike courts) is\n\nprescribed entirely by statute, any “improper[]” agency action is “ultra vires,” and there is\n\n“no principled basis for carving out some arbitrary subset” of agency errors as\n\n“jurisdictional.” Id. at 297–98. Cortez’s claim that the immigration court lacked the\n\nauthority to hear his case, in other words, is not meaningfully distinct from a more\n\n 11\n\froutine claim that an immigration court has misconstrued the INA: “[T]he question –\n\nwhether framed as an incorrect application of agency authority or an assertion of\n\nauthority not conferred – is always whether the agency has gone beyond what Congress\n\nhas permitted it to do.” Id.\n\n City of Arlington involved the degree of deference owed to an agency\n\ninterpretation of a statute bearing on its own “jurisdiction,” or statutory authority. Id. at\n\n296–97. Several courts, however, have applied City of Arlington to agency adjudications\n\n– precisely the context we face here – and concluded that purported “jurisdictional”\n\nclaims are subject to the same statutory limits, including exhaustion requirements and\n\nforfeiture rules, as other claims that an agency has acted improperly. See PGS\n\nGeophysical AS v. Iancu, 891 F.3d 1354, 1362 (Fed. Cir. 2018); 1621 Route 22 W.\n\nOperating Co., LLC v. NLRB, 825 F.3d 128, 140–41 (3d Cir. 2016). Indeed, the Ninth\n\nCircuit held as much in the immigration context years before City of Arlington, finding\n\nthat a claim that the immigration court “lacked jurisdiction” over a certain group of\n\nnoncitizens “turn[s] on a question of statutory interpretation,” so that normal rules of\n\nexhaustion and forfeiture apply. Xiao v. Barr, 979 F.2d 151, 153, 155 (1992). In short,\n\nwe have significant doubts about Cortez’s assumption that the “jurisdictional” nature of\n\nhis challenge to his administrative removal order puts him in a different and special\n\ncategory when it comes to judicial review, exempting him from § 1326(d)’s exhaustion\n\nrequirements and other limits on collateral attacks.\n\n The government, however, has not raised this objection. Instead, it accepts\n\nCortez’s premise that a proceeding conducted outside the scope of an immigration court’s\n\n 12\n\fadjudicatory authority must be deemed void on collateral review. Moreover, other courts\n\naddressing similar challenges to the “jurisdiction” of immigration courts have made the\n\nsame assumption. See, e.g., Hernandez-Perez v. Whitaker, 911 F.3d 305, 310 (6th Cir.\n\n2018) (finding that propriety of notice to appear commencing removal proceedings “can\n\nnever be forfeited or waived” (internal quotation marks omitted)). For purposes of this\n\nappeal, we need not decide conclusively whether that assumption is well-founded. As we\n\nnow explain, Cortez in any event cannot establish that his 2011 removal proceeding was\n\nconducted without adjudicatory authority, and that is enough to resolve this case.\n\n B.\n\n Even accepting Cortez’s threshold presumption – that a “jurisdictional” defect in\n\nthe notice to appear that commenced his removal proceedings would entitle him to\n\ncollaterally challenge his removal order – we find his argument lacking in two\n\nindependent respects. First, the purported defect Cortez has identified – the failure of the\n\nnotice to appear filed with the immigration court to include a date and time for his\n\nremoval hearing – does not implicate the immigration court’s adjudicatory authority or\n\n“jurisdiction.” And second, there is in any event no defect, because the regulations that\n\ngovern the filing of a notice to appear do not require inclusion of a hearing date and time.\n\n 1.\n\n We start with Cortez’s contention that any defect in the notice that commenced his\n\nremoval proceedings would deprive the immigration court of “subject matter jurisdiction”\n\nto issue a removal order. At the outset, we clarify some terminology: When it comes to\n\nadministrative agencies, the question of subject matter jurisdiction “is more appropriately\n\n 13\n\fframed” as “whether the agency actor, such as the [immigration judge] here, lacked\n\nstatutory authority to act” or acted outside its “authority to adjudicate.” United States v.\n\nArroyo, 356 F. Supp. 3d 619, 624 (W.D. Tex. 2018) (citing City of Arlington, 569 U.S. at\n\n297–98). But however the question is framed, the answer is the same: The regulation on\n\nwhich Cortez relies, 8 C.F.R. § 1003.14(a), is an internal docketing rule, not a limit on an\n\nimmigration court’s “jurisdiction” or authority to act.\n\n Exercising congressionally delegated authority, see 8 U.S.C. § 1103(g)(2), the\n\nAttorney General has promulgated regulations governing the initiation of removal\n\nproceedings. The regulation central to this case, 8 C.F.R. § 1003.14(a), provides that\n\n“[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a\n\ncharging document is filed with the Immigration Court.” “Charging document,” in turn,\n\nis defined as “the written instrument which initiates a proceeding before an Immigration\n\nJudge,” and one such document is a “[n]otice to [a]ppear.” Id. § 1003.13. Finally, a\n\nnearby regulation, 8 C.F.R. § 1003.18(b), specifies the contents of a notice to appear, and\n\n– unlike its statutory counterpart in 8 U.S.C. § 1229(a)(1) – does not require a date and\n\ntime for a subsequent removal hearing. Instead, that information must be included in a\n\nnotice to appear only “where practicable”; if not, the immigration court becomes\n\nresponsible for scheduling a hearing and providing the noncitizen with notice of the\n\n“time, place, and date.” 8 C.F.R. § 1003.18(b).\n\n The central question at this stage of our analysis is whether the term “jurisdiction”\n\nin § 1003.14(a) signals a limit on the scope of an immigration court’s adjudicatory\n\nauthority, so that a hypothetical defect in a notice to appear filed with the immigration\n\n 14\n\fcourt would deprive the court of authority to hear and decide the case. Both parties\n\nassume this to be true. And a substantial majority of courts addressing this issue have\n\ndone likewise, treating § 1003.14(a) as though it implicates an immigration court’s\n\nadjudicatory authority or “subject matter jurisdiction.” See, e.g., Ali v. Barr, 924 F.3d\n\n983, 985–86 (8th Cir. 2019); Banegas Gomez v. Barr, 922 F.3d 101, 111–12 (2d Cir.\n\n2019); Karingithi v. Whitaker, 913 F.3d 1158, 1159–62 (9th Cir. 2019); Hernandez-\n\nPerez, 911 F.3d at 310. But some courts – including, most recently, the Seventh Circuit –\n\nhave questioned this premise, and held instead that § 1003.14(a) is a procedural claim-\n\nprocessing rule without jurisdictional implications. See Ortiz-Santiago v. Barr, 924 F.3d\n\n956, 962–64 (7th Cir. 2019); see also United States v. Diaz-Martinez, __ F. Supp. 3d __,\n\n2019 WL 1940600, at *16 (E.D. Va. May 1, 2019); United States v. Monje-Garcia, No.\n\n18-cr-378-1, 2019 U.S. Dist. LEXIS 47323, at *7–9 (N.D. Ill. Jan. 15, 2019); United\n\nStates v. Rivera Lopez, 355 F. Supp. 3d 428, 438–39 (E.D. Va. 2018); Arroyo, 356 F.\n\nSupp. 3d at 624–30. We agree with those courts, and conclude that § 1003.14(a) is not a\n\njurisdictional rule.\n\n It is true, as Cortez emphasizes, that § 1003.14(a) refers to the vesting of\n\n“jurisdiction,” a word that “[p]roperly used . . . refers to the ‘classes of cases . . . falling\n\nwithin a court’s adjudicatory authority.’” Hyman v. City of Gastonia, 466 F.3d 284, 289\n\n(4th Cir. 2006) (third alteration in original) (quoting Kontrick, 540 U.S. at 455). But the\n\nterm “jurisdiction” also is used “colloquially,” United States v. George, 676 F.3d 249,\n\n259 (1st Cir. 2012), and “less than meticulous[ly],” to refer to “claim-processing rules\n\nthat do not delineate what cases . . . courts are competent to adjudicate,” Kontrick, 540\n\n 15\n\fU.S. at 454 (holding that time limit for objection in bankruptcy proceedings is not\n\njurisdictional but instead a claim-processing rule). So we cannot simply assume, with the\n\nparties, that because § 1003.14(a) refers to “jurisdiction,” it limits an immigration court’s\n\nadjudicatory authority. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 90\n\n(1998) (“Jurisdiction . . . is a word of many, too many, meanings.” (internal quotation\n\nmarks omitted)). Indeed, the Supreme Court in recent years has cautioned against\n\nprecisely that mistake, insisting on a sharper distinction between rules that are\n\njurisdictional in the formal sense and even the most “emphatic” of non-jurisdictional\n\nclaim-processing rules. Union Pac. R.R. v. Bhd. of Locomotive Eng'rs & Trainmen Gen.\n\nComm. of Adjustment, 558 U.S. 67, 81 (2009) (internal quotation marks omitted).\n\n In drawing that distinction here, we find the Supreme Court’s decision in Union\n\nPacific particularly instructive. At issue in that case was the jurisdictional status of an\n\nagency rule requiring that parties before an administrative tribunal – there, the National\n\nRailroad Adjustment Board – submit proof of settlement efforts in mediation, or\n\n“conference,” when initiating grievance proceedings. Id. at 76–80. That requirement, the\n\nCourt concluded, was not jurisdictional, in that “its satisfaction does not condition the\n\nadjudicatory authority of the Board.” Id. at 82. In reaching that determination, the Court\n\nemphasized two factors. First, the Board was granted by statute – not regulation – its\n\njurisdiction over “all” employment disputes between carriers and their employees, and\n\nthat broad grant of adjudicatory authority was not made contingent on proof of mediation\n\nefforts. Id. at 82–83 (internal quotation marks omitted). Nor, the Court noted, had\n\nCongress given the Board authority to adopt its own rules of “jurisdictional dimension.”\n\n 16\n\fId. at 83–84. And second, the function of the mediation rule was to provide “instructions\n\non party submissions,” and such “pleading instructions,” the Court concluded, are “claim-\n\nprocessing, not jurisdictional, rules.” Id. at 85.\n\n The same factors govern here, and lead to the same result. As in Union Pacific,\n\nthe immigration courts’ adjudicatory authority over removal proceedings comes not from\n\nthe agency regulation codified at 8 C.F.R. § 1003.14(a), but from Congress: It is the INA\n\nthat “explicitly and directly grants that authority,” Arroyo, 356 F. Supp. 3d at 624\n\n(emphasis omitted), providing that “[a]n immigration judge shall conduct proceedings for\n\ndeciding the inadmissibility or deportability of an alien,” 8 U.S.C. § 1229a(a)(1). “That\n\nstatutory grant of authority is the immigration judges’ ‘subject matter jurisdiction,’ and it\n\npreexisted” – by decades – § 1003.14(a)’s reference to the vesting of “jurisdiction” in\n\nimmigration court. Arroyo, 356 F. Supp. 3d at 624. And nothing about that broad and\n\nmandatory grant of adjudicatory authority, see Holland v. Pardee Coal Co., 269 F.3d\n\n424, 431 (4th Cir. 2001) (noting “general rule that ‘shall’ is mandatory”), is made\n\ncontingent on compliance with rules governing notices to appear, whether statutory, see 8\n\nU.S.C. § 1229(a) (statutory definition of notice to appear), or regulatory, see 8 C.F.R.\n\n§ 1003.18(b). See Union Pac. R.R., 558 U.S. at 83 (mediation requirement is not\n\n“moored to” statutory grant of adjudicatory authority).\n\n Nor – again paralleling Union Pacific – is there any indication that the regulation\n\nat 8 C.F.R. § 1003.14(a) was intended to implement some statutory provision giving the\n\nAttorney General the authority to “adopt rules of jurisdictional dimension.” Id. at 83–84;\n\nsee also Arroyo, 356 F. Supp. 3d at 629. To deem such a regulation “jurisdictional”\n\n 17\n\fwould be “to say that the Attorney General is ‘in effect, . . . telling himself what he may\n\nor may not do.’” Arroyo, 356 F. Supp. 3d at 629 (quoting Garcia v. Lynch, 786 F.3d 789,\n\n797 n.2 (9th Cir. 2015) (Berzon, J., concurring)). That is not the way we generally think\n\nof jurisdictional rules, which typically operate as “external constraints,” not “internal\n\nrules” that can be changed at will by an agency head. Garcia, 786 F.3d at 797 n.2\n\n(Berzon, J., concurring). Indeed, it is in part for that reason that several courts have\n\nconcluded that § 1003.14(a) cannot “properly be conceived of as jurisdictional.” Arroyo,\n\n356 F. Supp. 3d at 629 (quoting Garcia, 786 F.3d at 797 n.2 (Berzon, J., concurring)); see\n\nalso Ortiz-Santiago, 924 F.3d at 963 (“While an agency may adopt rules and processes to\n\nmaintain order, it cannot define the scope of its power to hear cases.”); Rivera Lopez, 355\n\nF. Supp. 3d at 439 (an agency’s “subject-matter jurisdiction” stems from “congressional\n\ngrants of authority,” not “a regulation promulgated by the agency itself”).\n\n There is also the question of the regulation’s function. See Union Pac. R.R., 588\n\nU.S. at 85 (describing regulation there as functioning “essentially [as] pleading\n\ninstructions”). As the Supreme Court has explained, “[a]mong the types of rules that\n\nshould not be described as jurisdictional are . . . claim-processing rules,” which “seek to\n\npromote the orderly progress of litigation by requiring that the parties take certain\n\nprocedural steps at certain specified times.” Henderson ex rel. Henderson v. Shinseki,\n\n562 U.S. 428, 435 (2011) (internal quotation marks omitted). On its face, that is\n\nprecisely what § 1003.14(a) does, laying out the procedural steps that must be taken to\n\ndocket a case before an immigration judge: A “charging document” must be filed with\n\nthe immigration court by the government – at the time § 1003.14(a) was promulgated, by\n\n 18\n\fthe Immigration and Naturalization Service (“INS”), then an agency within the\n\nDepartment of Justice – and that document must be accompanied by a certificate showing\n\nservice on the opposing party. 8 C.F.R. § 1003.14(a). 1 The text alone, in other words,\n\nwith its “emphasis on the initiation of proceedings and on service to the opposing party[,]\n\nsuggests [§ 1003.14(a)] is focused not on the immigration court’s fundamental power to\n\nact but rather on ‘requiring that the parties take certain procedural steps at certain\n\nspecified times,’” making it a claim-processing rule rather than a “genuine jurisdictional\n\nrequirement.” Rivera Lopez, 355 F. Supp. 3d at 439 (footnote omitted) (quoting\n\nHenderson, 562 U.S. at 435–36).\n\n The regulation’s history confirms that reading. Before § 1003.14(a)’s predecessor\n\nregulation was adopted in 1987, the INS had the authority both to initiate deportation\n\nproceedings and to “terminate [those] proceedings at any time prior to the actual\n\ncommencement of the hearing.” Aliens and Nationality; Rules of Procedure for\n\nProceedings Before Immigration Judges, 50 Fed. Reg. 51,693, 51,693 (Dec. 19, 1985);\n\nsee also Arroyo, 356 F. Supp. 3d at 626–27. The original version of § 1003.14(a) –\n\npromulgated as part of a “set of uniform procedural rules” for immigration courts – was\n\nintended to give immigration courts control over their own calendars, allowing for\n\n 1\n In full, § 1003.14(a) reads as follows: “Jurisdiction vests, and proceedings\nbefore an Immigration Judge commence, when a charging document is filed with the\nImmigration Court by the [INS]. The charging document must include a certificate\nshowing service on the opposing party pursuant to § 1003.32 which indicates the\nImmigration Court in which the charging document is filed. However, no charging\ndocument is required to be filed with the Immigration Court to commence bond\nproceedings pursuant to [other sections] of this chapter.”\n\n\n 19\n\f“optimal scheduling” to expedite hearings, by providing for the certainty of a filed\n\ndocument – the “charging document” – and limiting the authority of the INS to “cancel”\n\na proceeding once a charging document had been filed. 50 Fed. Reg. at 51,693; see also\n\nArroyo, 356 F. Supp. 3d at 626–27 (describing regulatory history); In re G-N-C-, 22 I. &\n\nN. Dec. 281, 284 (B.I.A. 1998) (§ 1003.14(a) “marks a clear boundary between the time\n\nprior to commencement of proceedings, where [an INS] officer has decisive power to\n\ncancel proceedings, and the time following commencement, where the [INS] officer\n\nmerely has the privilege to move for dismissal of proceedings”). The filing of a charging\n\ndocument such as a “notice to appear,” in other words, “marks an agency internal\n\nboundary,” Arroyo, 356 F. Supp. 3d at 628, that gives the immigration courts, rather than\n\nthe INS or the Department, “control over the docketing of cases,” id. at 627 (internal\n\nquotation marks omitted).\n\n We think that regulatory history makes clear, were there any doubt, that\n\n§ 1003.14(a) is “not a grant of authority” with jurisdictional implications, but something\n\nmore like a docketing rule, providing for “the orderly administration of proceedings,\n\nincluding deportation proceedings, before the immigration judges.” Id. at 628; see also\n\nRivera Lopez, 355 F. Supp. 3d at 439 (analogizing regulation to “a federal court’s local\n\nrules . . . which in no way affect the federal court’s subject-matter jurisdiction”). As the\n\nSeventh Circuit concluded, “[w]hat the [agency] was doing was establishing exactly what\n\n\n\n\n 20\n\fit takes properly to commence a case before [an immigration court]. That decision is not\n\none of jurisdictional significance.” Ortiz-Santiago, 924 F.3d at 963. 2\n\n 2.\n\n Our conclusion that § 1003.14(a) is not a jurisdictional rule by itself forecloses\n\nCortez’s attack on his 2011 removal order: Even if there were a defect in the notice to\n\nappear that was filed with the immigration court, that court did not lack adjudicatory\n\nauthority to issue its order. But Cortez also cannot succeed in his attack for a second and\n\nindependent reason: The notice to appear in question was not in fact defective.\n\n As previewed above, the question here boils down to whether a notice to appear\n\nfiled with an immigration court to commence proceedings under 8 C.F.R. § 1003.14(a)\n\nmust include the date and time of the noncitizen’s forthcoming removal hearing – which\n\nCortez’s did not. Under the regulation, proceedings are initiated with a “charging\n\ndocument,” 8 C.F.R. § 1003.14(a), which in turn is defined as one of three documents,\n\nincluding a “[n]otice to [a]ppear,” id. § 1003.13. According to Cortez, the required\n\ncontents of that “notice to appear” are controlled by 8 U.S.C. § 1229(a), a statutory\n\nprovision entitled “Notice to appear” that describes the “written notice [that] . . . shall be\n\ngiven in person” to the noncitizen, and requires such notice to specify the “time and place\n\n 2\n Cortez points to our court’s unpublished decision in Shogunle v. Holder, 336 F.\nApp’x 322 (4th Cir. 2009) (per curiam), to support his position that “jurisdiction” does\nnot vest in the immigration court until the proper notice is filed. But Shogunle simply\napplied 8 C.F.R. § 1003.14(a) without deciding whether that rule uses the word\n“jurisdiction” in the proper or colloquial sense. And in any event, “unpublished opinions\nare not binding in this [c]ircuit.” United States v. King, 673 F.3d 274, 280 n.5 (4th Cir.\n2012).\n\n\n 21\n\fat which the proceedings will be held,” id. § 1229(a)(1)(G)(i). And in its recent decision\n\nin Pereira v. Sessions, Cortez emphasizes, the Supreme Court held that a “notice to\n\nappear” that did not include a hearing time could not qualify as a “notice to appear under\n\nsection 1229(a).” 138 S. Ct. at 2114 (quoting 8 U.S.C. § 1229b(d)(1)(A)).\n\n The government disagrees, and maintains that § 1003.14(a) is satisfied by a notice\n\nto appear that complies with the separate regulatory definition set out in 8 C.F.R.\n\n§ 1003.15(b)–(c). That definition specifies what information must be “provide[d] . . . to\n\nthe Immigration Court,” id. § 1003.15(c), and unlike § 1229(a), as noted above, it does\n\nnot include on its detailed list of items the date and time of a subsequent removal hearing.\n\nInstead, date and time information must be included in a notice to appear filed under\n\n§ 1003.14(a) only “where practicable,” id. § 1003.18(b); in other cases, the immigration\n\ncourt itself is responsible for ensuring notice to a noncitizen of a hearing’s “time, place,\n\nand date,” id. And Pereira, the government finishes, has no bearing on this matter,\n\nbecause it considered only the meaning of a “notice to appear under section 1229(a),”\n\n138 S. Ct. at 2114 (quoting 8 U.S.C. § 1229b(d)(1)(A)), and did not address the\n\ncommencement of removal proceedings as governed by federal regulations.\n\n Many courts have considered this question since Periera was decided in 2018, and\n\nthey overwhelmingly have adopted the government’s position. Our sister circuits, with\n\none exception, have agreed that the required contents of the notice to appear that\n\ncommences removal proceedings under 8 C.F.R. § 1003.14(a) are those set out by\n\nregulation, not the INA. See Ali, 924 F.3d at 986; Banegas Gomez, 922 F.3d at 110–12;\n\nSantos-Santos v. Barr, 917 F.3d 486, 489–91 (6th Cir. 2019); Karingithi, 913 F.3d at\n\n 22\n\f1159–62; Hernandez-Perez, 911 F.3d at 310–15. But see Ortiz-Santiago, 924 F.3d at\n\n959–63 (indicating that notice to appear without date and time violated § 1003.14(a), but\n\nfinding issue forfeited because § 1003.14(a) is nonjurisdictional). 3 And while a\n\n“handful” of district courts have ruled for the noncitizen on this issue, “far more district\n\ncourts” have sided with the government. United States v. Gomez-Salinas, No. 2:19cr10,\n\n2019 WL 1141063, at *5 (E.D. Va. Mar. 12, 2019).\n\n We agree with the substantial majority of courts to address this issue, as well as\n\nthe district court here: It is the regulatory definition of “notice to appear,” and not\n\n§ 1229(a)’s definition, that controls in determining when a case is properly docketed with\n\nthe immigration court under 8 C.F.R. § 1003.14(a). As the district court emphasized, the\n\nregulations at 8 C.F.R. § 1003.15(b)–(c), specifying the contents of a “notice to appear”\n\nfiled to commence immigration court proceedings, do not cross-reference § 1229(a) or\n\notherwise incorporate that provision’s requirements. Instead, the regulations set out a\n\ndetailed and exhaustive list of their own, enumerating twelve separate items that must be\n\nincluded in a notice to appear filed under § 1003.14(a) – with the time and date of a\n\nfuture hearing not among them. See Santos-Santos, 917 F.3d at 490 (explaining that\n\nregulations establish their own criteria for “notice to appear” rather than incorporating\n\n\n\n\n 3\n Other circuit courts also have ruled for the government in unpublished decisions.\nThat includes our court, which has issued two per curiam opinions adopting the\ngovernment’s view. See Leonard v. Whitaker, 746 F. App’x 269, 269–70 (4th Cir. 2018);\nUnited States v. Perez-Arellano, 756 F. App’x 291, 294 (4th Cir. 2018).\n\n\n 23\n\f§ 1229(a)). 4 “If the regulations did not clearly enumerate requirements for the contents\n\nof a notice to appear” for purposes of § 1003.14(a), “we might presume they sub silentio\n\nincorporated § 1229(a)’s definition. But the plain, exhaustive list of requirements in the\n\n. . . regulations renders that presumption inapplicable here.” Karingithi, 913 F.3d at 1160\n\n(citation omitted). Indeed, reading into the regulatory list an additional requirement of\n\ntime and date information would render meaningless the regulations’ specific command\n\nthat such information must be included only “where practicable.” Id. (quoting 8 C.F.R.\n\n§ 1003.18(b)).\n\n Both text and structure compel the conclusion that it is this separate regulatory\n\ndefinition of “notice to appear,” and not the statutory definition in § 1229(a), that\n\n“control[s] when and how,” J.A. 17, a case is commenced before an immigration judge\n\nfor purposes of § 1003.14(a). First, the regulatory definition, codified at 8 C.F.R.\n\n§ 1003.15, is immediately adjacent to the docketing rule, at § 1003.14, by itself a strong\n\nindication that the regulatory definition controls. See Doe v. Cooper, 842 F.3d 833, 844\n\n(4th Cir. 2016) (describing presumption that adjacent subsections should be read\n\n 4\n Specifically, 8 C.F.R. § 1003.15(b)–(c) require that a notice to appear filed with\nan immigration court to commence proceedings include the following information: the\nnature of the proceedings, the legal authority under which the proceedings are conducted,\nthe acts or conduct of the noncitizen alleged to be in violation of law, the charges against\nthe noncitizen and the statutory provisions alleged to have been violated, notice that the\nnoncitizen may be represented by counsel, the address of the immigration court where the\nnotice to appear is being filed, a statement that the noncitizen must advise that\nimmigration court of his or her address and telephone number, the noncitizen’s name and\nany known aliases, the noncitizen’s address, the noncitizen’s registration number, the\nnoncitizen’s alleged nationality and citizenship, and the language that the noncitizen\nunderstands.\n\n\n 24\n\fharmoniously). And the text of the regulatory definition of “notice to appear” is a\n\nsubstantive match with § 1003.14(a) in a way that the statutory definition is not. Both the\n\nregulatory provisions are concerned expressly with the contents of the Department’s\n\nfiling in the immigration court: Section 1003.14(a) provides that proceedings commence\n\n“when a charging document is filed with the Immigration Court,” and § 1003.15\n\ndescribes the information that must be provided by the government “to the Immigration\n\nCourt.” The statute, in contrast, describes what “notice” must be “given” to a noncitizen\n\nin removal proceedings. 8 U.S.C. § 1229(a)(1) (requiring that a notice to appear “shall be\n\ngiven . . . to the alien”). That concern is of course important, but it also is distinct from\n\nthe question of what information must be provided to an immigration court at a case’s\n\noutset – a question on which § 1229(a) is silent. 5\n\n Our reading of the statute and regulations is consistent not only with the decisions\n\nof the many courts listed above, but also with the position taken by the Board of\n\nImmigration Appeals. In a precedential decision issued shortly after the Supreme Court\n\nruled in Pereira, the Board found that it is the regulatory definition in § 1003.15(b)–(c)\n\nthat controls the required content of a “notice to appear” to initiate proceedings before an\n\n\n 5\n Cortez suggests that the title of the statutory section in question – “Initiation of\nremoval proceedings,” 8 U.S.C. § 1229 – suggests that it establishes filing as well as\nnotice requirements. But the statutory text is clear, and clearly limited to the notice to be\nprovided to a noncitizen in removal proceedings, giving us no warrant to reason by\nimplication from the title. See Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S. Ct.\n883, 893 (2018) (while section headings may “supply cues” as to congressional intent,\nthey “cannot limit the plain meaning of a statutory text” (internal quotation marks\nomitted)).\n\n\n 25\n\fimmigration judge. In re Bermudez-Cota, 27 I. & N. Dec. 441, 443–45 (B.I.A. 2018).\n\nThat regulation, the Board explained, does not mandate that the document specify the\n\ntime and date of a future removal hearing. Id. at 445. Accordingly, the Board rejected a\n\nnoncitizen’s claim that his proceedings should be terminated because the notice to appear\n\nfiled with the immigration court omitted that information. Id. at 447. 6\n\n Cortez’s contrary argument relies primarily on the Supreme Court’s decision in\n\nPereira, holding that the requirements of 8 U.S.C. § 1229(a) are satisfied only by a\n\n“notice to appear” that includes date and time information for a removal hearing. But\n\nlike the district court, as well as other courts to consider the question, we think that\n\nreliance is misplaced. See J.A. 17–18 (distinguishing Pereira); Banegas Gomez, 922\n\nF.3d at 111 (same); Santos-Santos, 917 F.3d at 489–90 (same); Karingithi, 913 F.3d at\n\n1160–61 (same).\n\n\n\n\n 6\n The Board also found in Bermudez-Cota that the statutory definition in § 1229(a)\nis satisfied by receipt of “proper notice of the time and place of [a removal] proceeding”\nsubsequent to service of a “notice to appear” initially filed with an immigration court. 27\nI. & N. Dec. at 447; see also In re Mendoza-Hernandez, 27 I. & N. Dec. 520, 529 (B.I.A.\n2019) (two-step notice satisfies the INA’s notice requirements). We recognize that there\nis disagreement on this point, with the Ninth Circuit recently holding that a two-step\nnotice process does not comport with the statutory definition of “notice to appear” under\n§ 1229(a) and thus does not trigger the “stop-time” rule that limits the period of a\nnoncitizen’s physical presence in the United States for purposes of cancellation of\nremoval relief. Lopez v. Barr, 925 F.3d 396, 405 (2019). We have no occasion to\naddress that issue here. Cortez argues only that the notice to appear filed in immigration\ncourt failed to vest that court with “jurisdiction” under 8 C.F.R. § 1003.14(a); he raises\nno independent claim that he received improper notice under 8 U.S.C. § 1229(a), nor any\nother statutory claim.\n\n\n 26\n\f At issue in Pereira was a distinct statutory question at the intersection of two INA\n\nprovisions. Under the first, providing for the so-called “stop-time” rule, the period of a\n\nnoncitizen’s continuous presence in the United States – which governs eligibility for\n\ncertain forms of relief from removal – is “deemed to end . . . when the alien is served a\n\nnotice to appear under section 1229(a).” 8 U.S.C. § 1229b(d)(1) (emphasis added). And\n\n“section 1229(a)” is the by-now familiar statutory section specifying that a “notice to\n\nappear” must include, among other information, “[t]he time and place at which [removal]\n\nproceedings will be held.” Id. § 1229(a)(1)(G)(i). In Pereira, the Court held that\n\n§ 1229b(d)(1)’s stop-time rule was not triggered by a notice to appear that omitted the\n\ndate and time of a removal hearing. “By expressly referencing § 1229(a),” the Court\n\nreasoned, the stop-time provision “specifies where to look to find out what ‘notice to\n\nappear’ means.” 138 S. Ct. at 2114. And § 1229(a), in turn, “clarifies that the type of\n\nnotice” called for under the stop-time provision, id., is one that includes “[t]he time and\n\nplace at which the [removal] proceedings will be held,” id. (alterations in original)\n\n(quoting 8 U.S.C. § 1229(a)(1)(G)(i)).\n\n That reasoning has no application here. As highlighted above, the regulatory\n\ndefinition of “notice to appear” in § 1003.14(a), unlike the stop-time provision at 8\n\nU.S.C. § 1229b(d)(1), does not cross-reference “a notice to appear under section\n\n1229(a).” The “glue that bond[ed]” the stop-time rule to § 1229(a)’s requirements in\n\nPereira, 138 S. Ct. at 2117, in other words, is missing when it comes to § 1003.14(a)’s\n\ndocketing rule. See Banegas Gomez, 922 F.3d at 111 (“[N]o such statutory glue bonds\n\nthe Immigration Court’s [authority under § 1003.14(a)] to § 1229(a)’s requirements.”).\n\n 27\n\fAnd for the reasons given above, there is nothing else to suggest that “Pereira’s\n\ndefinition of a ‘notice to appear under section 1229(a)’” would “govern the meaning of\n\n‘notice to appear’ under an unrelated regulatory provision.” Karingithi, 913 F.3d at\n\n1161. On the contrary, Pereira stressed repeatedly that its holding was “narrow,” 138 S.\n\nCt. at 2110, addressing the requirements of a notice to appear only in the “context” of the\n\nINA’s notice and stop-time provisions, id. at 2115. The filing regulations at issue in this\n\ncase were never mentioned in Pereira, and Pereira never indicated that its holding would\n\napply to the “distinct . . . regulations at issue here,” Santos-Santos, 917 F.3d at 489.\n\n Cortez has one final argument: Even if not mandated by Pereira, we should read\n\n“notice to appear” under the regulations to require the same content as a “notice to\n\nappear” under § 1229(a), either because the agency did not intend to create a system with\n\ntwo different and distinct “notices to appear,” or because whatever the agency’s intent, it\n\nlacked authority to bypass the statutory specifications for a “notice to appear.” We\n\ndisagree.\n\n With respect to the agency’s intent, Cortez points to regulatory history suggesting,\n\nhe says, that the definition at 8 C.F.R. § 1003.15(b)–(c) was promulgated in order to\n\n“implement[] the language of the [INA] indicating that the time and place of the hearing\n\nmust be on the Notice to Appear,” Inspection and Expedited Removal of Aliens, 62 Fed.\n\nReg. 444, 449 (Jan. 3, 1997). But as described above, the definition in fact does not\n\ninclude that requirement; instead, the regulations expressly reject it, providing that date\n\nand time information is to be provided in a notice to appear filed under § 1003.14(a) only\n\n“where practicable.” 8 C.F.R. § 1003.18(b). The regulations, that is, unambiguously do\n\n 28\n\fcreate a dichotomy between the notice that must be given to a noncitizen under statutory\n\n§ 1229(a) and the information that must be provided to an immigration court to\n\ncommence proceedings under regulatory § 1003.14(a). In light of that textual clarity, we\n\nneed not delve deeply into the tricky question of regulatory intent. See Tenn. Valley\n\nAuth. v. Hill, 437 U.S. 153, 184 n.29 (1978) (where text is “plain and unambiguous on its\n\nface,” courts do not look to “history as a guide to its meaning”).\n\n Cortez’s argument fares no better when it comes to the agency’s authority.\n\nAccording to Cortez, a regulatory definition for a “notice to appear” that does not\n\nincorporate § 1229(a)’s date and time requirement conflicts with the INA and is therefore\n\nvoid. But there is no conflict because, as we have explained, the regulations in question\n\nand § 1229(a) speak to different issues – filings in the immigration court to initiate\n\nproceedings, on the one hand, and notice to noncitizens of removal hearings, on the other\n\n– and the INA “says nothing about” how a case is to be docketed with the immigration\n\ncourt. Karingithi, 913 F.3d at 1160; see also Banegas Gomez, 922 F.3d at 110 (the INA\n\n“does not . . . explain when or how jurisdiction vests” in immigration courts (internal\n\nquotation marks omitted)). Because § 1003.14(a)’s docketing procedures are a product of\n\nregulation, not dictated by statute, the agency is free to define qualifying charging\n\ndocuments differently than the document described in § 1229(a) and used for other\n\npurposes.\n\n Accordingly, we hold that it is the regulatory definition of a “notice to appear” –\n\nnot the definition at 8 U.S.C. § 1229(a) – that controls whether the government properly\n\ninitiated an immigration proceeding under 8 C.F.R. § 1003.14(a). The notice to appear\n\n 29\n\ffiled with the immigration court in Cortez’s case conformed to that regulatory definition.\n\nFor that reason, as well, Cortez’s collateral attack on his 2011 removal order cannot\n\nsucceed.\n\n\n\n III.\n\n For the foregoing reasons, we affirm the judgment of the district court.\n\n AFFIRMED\n\n\n\n\n 30\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Juan Cortez\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-07-19\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 19-4055\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nJUAN CORTEZ, a/k/a Jasinto Morales,\\n\\n Defendant - Appellant.\\n\\n------------------------------\\n\\nSTEVEN ABRAMS; ESMERALDA CABRERA; TEOFILO CHAPA; JEFFREY\\nS. CHASE; GEORGE T. CHEW; MATTHEW J. D’ANGELO; BRUCE J.\\nEINHORN; CECELIA M. ESPENOZA; NOEL FERRIS; JOHN F. GOSSART,\\nJR.; MIRIAM HAYWARD; REBECCA JAMIL; WILLIAM P. JOYCE; CAROL\\nKING; ELIZABETH A. LAMB; MARGARET MCMANUS; CHARLES ERNST\\nPAZAR; LAURA RAMIREZ; JOHN W. RICHARDSON; LORY DIANA\\nROSENBERG; SUSAN ROY; PAUL WILLIAM SCHMIDT; DENISE\\nNOONAN SLAVIN; ANDREA H. SLOAN; WILLIAM PETER VAN WYKE;\\nGUSTAVO D. VILLAGELIU; POLLY A. WEBBER,\\n\\n Amici Supporting Appellant.\\n\\n\\nAppeal from the United States District Court for the Western District of Virginia, at\\nLynchburg. Norman K. Moon, Senior District Judge. (6:18-cr-00022-NKM-1)\\n\\n\\nArgued: May 9, 2019 Decided: July 17, 2019\\n Amended: July 19, 2019\\n\\n\\nBefore MOTZ, AGEE, and HARRIS, Circuit Judges.\\n\\fAffirmed by published opinion. Judge Harris wrote the opinion, in which Judge Motz\\nand Judge Agee joined.\\n\\n\\nARGUED: Erin Margaret Trodden, OFFICE OF THE FEDERAL PUBLIC\\nDEFENDER, Harrisonburg, Virginia, for Appellant. Laura Day Rottenborn, OFFICE OF\\nTHE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. ON BRIEF:\\nJuval O. Scott, Federal Public Defender, Roanoke, Virginia, Lisa M. Lorish, Assistant\\nFederal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\\nCharlottesville, Virginia, for Appellant. Thomas T. Cullen, United States Attorney,\\nOFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.\\n\\n\\n\\n\\n 2\\n\\fPAMELA HARRIS, Circuit Judge:\\n\\n Juan Cortez, a citizen of Mexico, was charged with illegally reentering the United\\n\\nStates after having been removed years prior. Cortez conceded that he was unlawfully\\n\\npresent, but argued that his initial removal order was invalid because of an alleged filing\\n\\ndefect that deprived the immigration court of “jurisdiction” over his case. The district\\n\\ncourt rejected that argument, and Cortez subsequently pleaded guilty while preserving his\\n\\nright to raise the issue on appeal.\\n\\n We affirm the district court’s order. We first hold that the premise of Cortez’s\\n\\nargument – that the purported filing defect in his case deprived the immigration court of\\n\\nauthority to enter a removal order, so that he may collaterally challenge that order in\\n\\nsubsequent criminal proceedings – is incorrect. And in any event, there in fact was no\\n\\ndefect. As the district court explained, the applicable regulations do not require that the\\n\\ninformation identified by Cortez – a date and time for a subsequent removal hearing – be\\n\\nincluded in the “notice to appear” that is filed with an immigration court to initiate\\n\\nproceedings.\\n\\n\\n\\n\\n I.\\n\\n A.\\n\\n Juan Cortez is a citizen of Mexico who has been found to be unlawfully present in\\n\\nthe United States on two occasions. The first was in 2011. On February 27 of that year,\\n\\nthe Department of Homeland Security (“Department”) served Cortez with a document\\n\\n\\n 3\\n\\flabeled “Notice to Appear.” That notice advised him, among other things, that he was\\n\\ncharged with being unlawfully present in the country, and that the Department was\\n\\ninitiating removal proceedings against him. The notice provided Cortez with the location\\n\\nof the immigration court where his removal hearing would be held, but did not provide a\\n\\ndate and time, stating only that the hearing would occur “on a date to be set at a time to\\n\\nbe set.” J.A. 10. At the same time it served Cortez with this written notice, however, the\\n\\nDepartment orally informed him of his hearing date and time.\\n\\n The Department filed the notice to appear with the immigration court on March 3,\\n\\n2011. Two weeks later, on March 17, 2011, the immigration court held a removal\\n\\nhearing, which Cortez attended via video conference. The immigration judge confirmed\\n\\nthat Cortez was unlawfully present and ordered that he be removed from the country.\\n\\nThere is no indication that Cortez challenged the contents of the notice to appear or the\\n\\nimmigration judge’s authority to order his removal, and Cortez neither administratively\\n\\nnor judicially appealed the removal order on any ground. Cortez was removed from the\\n\\nUnited States in April 2011.\\n\\n B.\\n\\n At some point following his removal, Cortez entered the United States a second\\n\\ntime, again without applying for legal admission. In September 2018, the government\\n\\nlocated Cortez in the vicinity of Lynchburg, Virginia. This time, the government\\n\\ncriminally charged Cortez with illegal reentry under 8 U.S.C. § 1326(a), which is violated\\n\\nwhen an individual who previously was “deported” or “removed” from the country\\n\\n\\n\\n 4\\n\\f“enters, attempts to enter, or is at any time found in, the United States” without legal\\n\\nauthorization.\\n\\n Before the district court, Cortez moved to dismiss the indictment against him. He\\n\\nconceded that he had entered the United States without legal authority, so that the second\\n\\nelement of his criminal charge – unlawful presence – was satisfied. But the first element\\n\\n– a previous removal from the country – was not satisfied, Cortez argued, because even\\n\\nthough he attended his 2011 immigration hearing, “the immigration judge lacked subject\\n\\nmatter jurisdiction to enter an order of removal against him.” J.A. 6. It followed, Cortez\\n\\ncontended, that his 2011 removal order was void, and could not be the basis for a charge\\n\\nunder § 1326(a).\\n\\n As a general rule, Cortez recognized, a criminal defendant may collaterally attack\\n\\na removal order in a prosecution for illegal reentry only if three conditions are met: “(1)\\n\\n[he] exhausted any administrative remedies that may have been available to seek relief\\n\\nagainst the order; (2) the deportation proceedings at which the order was issued\\n\\nimproperly deprived [him] of the opportunity for judicial review; and (3) the entry of the\\n\\norder was fundamentally unfair.” 8 U.S.C. § 1326(d). But according to Cortez, that\\n\\nframework did not apply because he was challenging the “subject matter jurisdiction” of\\n\\nthe immigration court, “an issue that cannot be waived or forfeited.” And even if it did\\n\\napply, Cortez argued, a lack of “subject matter jurisdiction” by itself satisfied all three\\n\\nprerequisites for a collateral attack under § 1326(d).\\n\\n The purported error at the heart of Cortez’s claim was the failure of the notice to\\n\\nappear filed in connection with his 2011 removal proceeding to specify a date and time\\n\\n 5\\n\\ffor his hearing. Under the regulations governing removal proceedings, Cortez explained,\\n\\nproceedings commence and “[j]urisdiction vests” with the immigration judge when a\\n\\n“charging document” is filed with the immigration court. 8 C.F.R. § 1003.14(a). The\\n\\nregulations list three documents that may qualify as “charging document[s],” including a\\n\\n“[n]otice to [a]ppear.” Id. § 1003.13. And a “notice to appear,” Cortez finished, is\\n\\ndefined in the Immigration and Nationality Act (“INA”) itself, which requires that a\\n\\n“notice to appear” include the “time and place at which the proceedings will be held,” 8\\n\\nU.S.C. § 1229(a)(1)(G)(i); see also Pereira v. Sessions, 138 S. Ct. 2105, 2114 (2018)\\n\\n(confirming that notice to appear under § 1229(a) “include[s] . . . the time and place of\\n\\nthe removal proceedings”). Putting all of that together, Cortez argued that because the\\n\\nnotice filed in his case omitted a hearing time, it did not vest the immigration court with\\n\\n“jurisdiction,” rendering his removal order a legal nullity.\\n\\n The district court disagreed. The court did not dispute the premise of Cortez’s\\n\\nargument: that a defect in the notice to appear would implicate the immigration court’s\\n\\njurisdiction and allow for a collateral attack on the removal order. But, the court held, the\\n\\nnotice to appear was not defective, because the regulatory definition of the “notice to\\n\\nappear” that vests a court with “jurisdiction” under 8 C.F.R. § 1003.14(a) does not “list\\n\\nthe time and date of the removal proceedings as required criteria.” J.A. 18 (citing 8\\n\\nC.F.R. § 1003.15(b)–(c)). Cortez, the court reasoned, was pointing to the wrong\\n\\ndefinition of “notice to appear”: The statutory provision in § 1229(a) does not address\\n\\n“the immigration court’s . . . jurisdiction over the proceeding,” but is instead concerned\\n\\nwith the separate issue of providing notice to a noncitizen in a removal proceeding. Id.\\n\\n 6\\n\\f Because Cortez had shown no defect affecting the immigration court’s\\n\\n“jurisdiction,” the court concluded, he could attack his removal order collaterally only if\\n\\nhe could satisfy the standard § 1326(d) requirements. Jumping directly to the third\\n\\nrequirement, the court held that Cortez’s removal order was not “fundamentally unfair,”\\n\\nJ.A. 20, in part because Cortez – who attended his hearing after being provided with oral\\n\\nnotice of the date and time – suffered no “actual prejudice,” J.A. 21. Accordingly, the\\n\\ndistrict court denied Cortez’s motion to dismiss the indictment against him.\\n\\n Cortez pleaded guilty less than two weeks later, and the district court sentenced\\n\\nhim to time served. Cortez’s plea agreement reserved his right to appeal the district\\n\\ncourt’s ruling on his motion to dismiss the indictment, and he timely noticed this appeal.\\n\\n\\n\\n II.\\n\\n Cortez makes the same argument on appeal as he did before the district court:\\n\\nBecause no proper notice to appear was filed in his removal proceedings, the immigration\\n\\ncourt lacked “jurisdiction,” and as a result, there is no valid removal order on which to\\n\\nbase a prosecution for illegal reentry. We review this claim, which turns on purely legal\\n\\nquestions, de novo, United States v. Hatcher, 560 F.3d 222, 224 (4th Cir. 2009), and find\\n\\nthat the district court correctly denied Cortez’s motion to dismiss.\\n\\n Before we even reach Cortez’s argument – that the immigration court lacked\\n\\n“subject matter jurisdiction” to enter his 2011 removal order because of a defect in the\\n\\nnotice to appear filed with the court – we are confronted with a threshold issue. Both\\n\\nparties assume that a successful challenge to the “subject matter jurisdiction” of an\\n\\n 7\\n\\fimmigration court would by itself be grounds for a collateral attack on a removal order,\\n\\nrelieving Cortez of the obligation to satisfy the § 1326(d) requirements that ordinarily\\n\\napply to collateral challenges. We have questions about that assumption, which we\\n\\noutline below.\\n\\n We need not resolve the issue, however, because for two independent reasons,\\n\\nCortez cannot succeed in his challenge to the immigration court’s “jurisdiction.” First,\\n\\nthe regulation on which Cortez relies, 8 C.F.R. § 1003.14(a), is a docketing rule that does\\n\\nnot implicate the immigration court’s adjudicatory authority, referred to as “subject\\n\\nmatter jurisdiction” by the parties. And in any event, we agree with the district court that\\n\\nCortez has failed to show any defect in his notice to appear under that regulation.\\n\\n A.\\n\\n At bottom, this case is about a collateral challenge to a removal order in a criminal\\n\\nproceeding for illegal reentry under 8 U.S.C. § 1326(a). The threshold question\\n\\npresented is whether Cortez may advance his argument – that the immigration court\\n\\nlacked “jurisdiction” to issue a removal order in his case – in this posture. The parties\\n\\nand the district court assumed that Cortez’s challenge to the “subject matter jurisdiction”\\n\\nof the immigration court, if successful, necessarily would allow for a collateral attack on\\n\\nhis removal order, relieving him of the obligation to satisfy the § 1326(d) requirements\\n\\nthat ordinarily apply. But we have doubts about that assumption. And given the breadth\\n\\nof its implications – opening to collateral attack every removal order in proceedings\\n\\ncommenced by an incomplete notice, regardless of the significance of the error or the\\n\\npossibility of prejudice – we do not wish to leave it unaddressed.\\n\\n 8\\n\\f In a criminal proceeding for illegal reentry, the existence of a removal order\\n\\nusually is enough to meet the government’s burden of establishing the defendant’s prior\\n\\nremoval or deportation. United States v. Moreno-Tapia, 848 F.3d 162, 165 (4th Cir.\\n\\n2017). But there is an exception, allowing a defendant to collaterally attack a removal\\n\\norder – so that it no longer serves as a predicate for a criminal reentry charge – when\\n\\nthere was a “procedural flaw in the immigration proceeding” that prevented the\\n\\nnoncitizen from seeking review when the order was issued, thus violating his due process\\n\\nrights. Id. at 169; see also United States v. Mendoza-Lopez, 481 U.S. 828 (1987). Under\\n\\n8 U.S.C. § 1326(d), a noncitizen must make each of three showings to come within that\\n\\nexception and mount a collateral attack: that (1) he “exhausted any administrative\\n\\nremedies” available to seek relief against the removal order; (2) the removal proceedings\\n\\n“improperly deprived [him] of the opportunity for judicial review”; and (3) entry of the\\n\\norder was “fundamentally unfair.”\\n\\n It is readily apparent that Cortez cannot make any of those showings. First, Cortez\\n\\nfailed to exhaust his administrative remedies: He neither administratively appealed the\\n\\nimmigration judge’s decision nor provided any explanation for why he could not do so.\\n\\nSecond, Cortez failed to show that the alleged defect in his proceeding – the absence of a\\n\\nhearing date on the notice filed with the immigration court – somehow deprived him of\\n\\nthe opportunity for judicial review of a removal proceeding of which he had actual notice\\n\\nand in which he actively participated. Finally, Cortez cannot establish “fundamental\\n\\nunfairness,” which requires that “but for the errors complained of, there was a reasonable\\n\\nprobability that he would not have been deported,” United States v. El Shami, 434 F.3d\\n\\n 9\\n\\f659, 665 (4th Cir. 2005). Cortez was promptly provided with oral notice of the date and\\n\\ntime of his hearing, which, again, he attended, and there is no reason to believe that the\\n\\nhearing would have proceeded any differently, much less resulted in a different outcome,\\n\\nhad the notice docketed with the immigration court also provided the same date and time\\n\\ninformation.\\n\\n Thus, Cortez may proceed with his collateral attack only if there is some\\n\\nexception-to-the-exception that would allow him to bypass these normal requirements.\\n\\nCortez argues that there is just such an exception: If he is correct that a defect in the\\n\\nnotice to appear filed with the immigration court to commence his proceedings deprived\\n\\nthe immigration court of “jurisdiction” under 8 C.F.R. § 1003.14(a), then his removal\\n\\norder was void ab initio and necessarily subject to collateral challenge. But Cortez\\n\\nprovides scant authority for that theory, and we question whether he has framed the issue\\n\\ncorrectly.\\n\\n First, contrary to what seems to be Cortez’s assumption, there is no freestanding\\n\\nrule allowing for collateral attacks based on a lack of subject matter jurisdiction. Instead,\\n\\nthe opposite is true: “Even subject-matter jurisdiction . . . may not be attacked\\n\\ncollaterally.” Kontrick v. Ryan, 540 U.S. 443, 455 n.9 (2004) (explaining that a lack of\\n\\nsubject matter jurisdiction may be raised at any stage within the same civil proceeding,\\n\\nbut generally is not grounds for collateral challenge). As we have explained, the interest\\n\\nin the finality of judgments is sufficiently strong that only in exceptional circumstances\\n\\nwill a collateral challenge based on the lack of subject matter jurisdiction be permitted.\\n\\nCooper v. Productive Transp. Servs., Inc. (In re Bulldog Trucking, Inc.), 147 F.3d 347,\\n\\n 10\\n\\f352–53 (4th Cir. 1998). “Mere error in the exercise of jurisdiction” is not enough. Id. at\\n\\n352. Cortez does not allege exceptional circumstances under this standard, so any\\n\\nentitlement he has to raise a “jurisdictional” objection to his removal order in this\\n\\ncollateral criminal proceeding must come, if at all, by way of § 1326(d).\\n\\n Second, there is good reason to question Cortez’s supposition that a claim\\n\\ncharacterized as “jurisdictional” should be exempt from § 1326(d)’s limits, including the\\n\\nstatutory exhaustion requirement. Cortez proceeds by analogy to federal court subject\\n\\nmatter jurisdiction under Article III of the Constitution: Challenges to that jurisdiction\\n\\ncannot be waived or forfeited, see Brickwood Contractors, Inc. v. Datanet Eng’g, Inc.,\\n\\n369 F.3d 385, 390 (4th Cir. 2004) (en banc), and so, Cortez contends, he did not forfeit\\n\\nhis challenge to the immigration court’s authority over his removal proceeding by\\n\\nattending his hearing without objecting, nor by failing to raise the issue on administrative\\n\\nor judicial review as required under § 1326(d)(1)–(2). But an immigration court is not an\\n\\nArticle III court, and a removal proceeding is an agency process, not an Article III\\n\\nadjudication. And as the Supreme Court has instructed, we should not “reflexive[ly]\\n\\nexten[d] to agencies . . . the very real division between the jurisdictional and\\n\\nnonjurisdictional that is applicable to courts.” City of Arlington v. FCC, 569 U.S. 290,\\n\\n297 (2013). Rather, because the power of administrative agencies (unlike courts) is\\n\\nprescribed entirely by statute, any “improper[]” agency action is “ultra vires,” and there is\\n\\n“no principled basis for carving out some arbitrary subset” of agency errors as\\n\\n“jurisdictional.” Id. at 297–98. Cortez’s claim that the immigration court lacked the\\n\\nauthority to hear his case, in other words, is not meaningfully distinct from a more\\n\\n 11\\n\\froutine claim that an immigration court has misconstrued the INA: “[T]he question –\\n\\nwhether framed as an incorrect application of agency authority or an assertion of\\n\\nauthority not conferred – is always whether the agency has gone beyond what Congress\\n\\nhas permitted it to do.” Id.\\n\\n City of Arlington involved the degree of deference owed to an agency\\n\\ninterpretation of a statute bearing on its own “jurisdiction,” or statutory authority. Id. at\\n\\n296–97. Several courts, however, have applied City of Arlington to agency adjudications\\n\\n– precisely the context we face here – and concluded that purported “jurisdictional”\\n\\nclaims are subject to the same statutory limits, including exhaustion requirements and\\n\\nforfeiture rules, as other claims that an agency has acted improperly. See PGS\\n\\nGeophysical AS v. Iancu, 891 F.3d 1354, 1362 (Fed. Cir. 2018); 1621 Route 22 W.\\n\\nOperating Co., LLC v. NLRB, 825 F.3d 128, 140–41 (3d Cir. 2016). Indeed, the Ninth\\n\\nCircuit held as much in the immigration context years before City of Arlington, finding\\n\\nthat a claim that the immigration court “lacked jurisdiction” over a certain group of\\n\\nnoncitizens “turn[s] on a question of statutory interpretation,” so that normal rules of\\n\\nexhaustion and forfeiture apply. Xiao v. Barr, 979 F.2d 151, 153, 155 (1992). In short,\\n\\nwe have significant doubts about Cortez’s assumption that the “jurisdictional” nature of\\n\\nhis challenge to his administrative removal order puts him in a different and special\\n\\ncategory when it comes to judicial review, exempting him from § 1326(d)’s exhaustion\\n\\nrequirements and other limits on collateral attacks.\\n\\n The government, however, has not raised this objection. Instead, it accepts\\n\\nCortez’s premise that a proceeding conducted outside the scope of an immigration court’s\\n\\n 12\\n\\fadjudicatory authority must be deemed void on collateral review. Moreover, other courts\\n\\naddressing similar challenges to the “jurisdiction” of immigration courts have made the\\n\\nsame assumption. See, e.g., Hernandez-Perez v. Whitaker, 911 F.3d 305, 310 (6th Cir.\\n\\n2018) (finding that propriety of notice to appear commencing removal proceedings “can\\n\\nnever be forfeited or waived” (internal quotation marks omitted)). For purposes of this\\n\\nappeal, we need not decide conclusively whether that assumption is well-founded. As we\\n\\nnow explain, Cortez in any event cannot establish that his 2011 removal proceeding was\\n\\nconducted without adjudicatory authority, and that is enough to resolve this case.\\n\\n B.\\n\\n Even accepting Cortez’s threshold presumption – that a “jurisdictional” defect in\\n\\nthe notice to appear that commenced his removal proceedings would entitle him to\\n\\ncollaterally challenge his removal order – we find his argument lacking in two\\n\\nindependent respects. First, the purported defect Cortez has identified – the failure of the\\n\\nnotice to appear filed with the immigration court to include a date and time for his\\n\\nremoval hearing – does not implicate the immigration court’s adjudicatory authority or\\n\\n“jurisdiction.” And second, there is in any event no defect, because the regulations that\\n\\ngovern the filing of a notice to appear do not require inclusion of a hearing date and time.\\n\\n 1.\\n\\n We start with Cortez’s contention that any defect in the notice that commenced his\\n\\nremoval proceedings would deprive the immigration court of “subject matter jurisdiction”\\n\\nto issue a removal order. At the outset, we clarify some terminology: When it comes to\\n\\nadministrative agencies, the question of subject matter jurisdiction “is more appropriately\\n\\n 13\\n\\fframed” as “whether the agency actor, such as the [immigration judge] here, lacked\\n\\nstatutory authority to act” or acted outside its “authority to adjudicate.” United States v.\\n\\nArroyo, 356 F. Supp. 3d 619, 624 (W.D. Tex. 2018) (citing City of Arlington, 569 U.S. at\\n\\n297–98). But however the question is framed, the answer is the same: The regulation on\\n\\nwhich Cortez relies, 8 C.F.R. § 1003.14(a), is an internal docketing rule, not a limit on an\\n\\nimmigration court’s “jurisdiction” or authority to act.\\n\\n Exercising congressionally delegated authority, see 8 U.S.C. § 1103(g)(2), the\\n\\nAttorney General has promulgated regulations governing the initiation of removal\\n\\nproceedings. The regulation central to this case, 8 C.F.R. § 1003.14(a), provides that\\n\\n“[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a\\n\\ncharging document is filed with the Immigration Court.” “Charging document,” in turn,\\n\\nis defined as “the written instrument which initiates a proceeding before an Immigration\\n\\nJudge,” and one such document is a “[n]otice to [a]ppear.” Id. § 1003.13. Finally, a\\n\\nnearby regulation, 8 C.F.R. § 1003.18(b), specifies the contents of a notice to appear, and\\n\\n– unlike its statutory counterpart in 8 U.S.C. § 1229(a)(1) – does not require a date and\\n\\ntime for a subsequent removal hearing. Instead, that information must be included in a\\n\\nnotice to appear only “where practicable”; if not, the immigration court becomes\\n\\nresponsible for scheduling a hearing and providing the noncitizen with notice of the\\n\\n“time, place, and date.” 8 C.F.R. § 1003.18(b).\\n\\n The central question at this stage of our analysis is whether the term “jurisdiction”\\n\\nin § 1003.14(a) signals a limit on the scope of an immigration court’s adjudicatory\\n\\nauthority, so that a hypothetical defect in a notice to appear filed with the immigration\\n\\n 14\\n\\fcourt would deprive the court of authority to hear and decide the case. Both parties\\n\\nassume this to be true. And a substantial majority of courts addressing this issue have\\n\\ndone likewise, treating § 1003.14(a) as though it implicates an immigration court’s\\n\\nadjudicatory authority or “subject matter jurisdiction.” See, e.g., Ali v. Barr, 924 F.3d\\n\\n983, 985–86 (8th Cir. 2019); Banegas Gomez v. Barr, 922 F.3d 101, 111–12 (2d Cir.\\n\\n2019); Karingithi v. Whitaker, 913 F.3d 1158, 1159–62 (9th Cir. 2019); Hernandez-\\n\\nPerez, 911 F.3d at 310. But some courts – including, most recently, the Seventh Circuit –\\n\\nhave questioned this premise, and held instead that § 1003.14(a) is a procedural claim-\\n\\nprocessing rule without jurisdictional implications. See Ortiz-Santiago v. Barr, 924 F.3d\\n\\n956, 962–64 (7th Cir. 2019); see also United States v. Diaz-Martinez, __ F. Supp. 3d __,\\n\\n2019 WL 1940600, at *16 (E.D. Va. May 1, 2019); United States v. Monje-Garcia, No.\\n\\n18-cr-378-1, 2019 U.S. Dist. LEXIS 47323, at *7–9 (N.D. Ill. Jan. 15, 2019); United\\n\\nStates v. Rivera Lopez, 355 F. Supp. 3d 428, 438–39 (E.D. Va. 2018); Arroyo, 356 F.\\n\\nSupp. 3d at 624–30. We agree with those courts, and conclude that § 1003.14(a) is not a\\n\\njurisdictional rule.\\n\\n It is true, as Cortez emphasizes, that § 1003.14(a) refers to the vesting of\\n\\n“jurisdiction,” a word that “[p]roperly used . . . refers to the ‘classes of cases . . . falling\\n\\nwithin a court’s adjudicatory authority.’” Hyman v. City of Gastonia, 466 F.3d 284, 289\\n\\n(4th Cir. 2006) (third alteration in original) (quoting Kontrick, 540 U.S. at 455). But the\\n\\nterm “jurisdiction” also is used “colloquially,” United States v. George, 676 F.3d 249,\\n\\n259 (1st Cir. 2012), and “less than meticulous[ly],” to refer to “claim-processing rules\\n\\nthat do not delineate what cases . . . courts are competent to adjudicate,” Kontrick, 540\\n\\n 15\\n\\fU.S. at 454 (holding that time limit for objection in bankruptcy proceedings is not\\n\\njurisdictional but instead a claim-processing rule). So we cannot simply assume, with the\\n\\nparties, that because § 1003.14(a) refers to “jurisdiction,” it limits an immigration court’s\\n\\nadjudicatory authority. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 90\\n\\n(1998) (“Jurisdiction . . . is a word of many, too many, meanings.” (internal quotation\\n\\nmarks omitted)). Indeed, the Supreme Court in recent years has cautioned against\\n\\nprecisely that mistake, insisting on a sharper distinction between rules that are\\n\\njurisdictional in the formal sense and even the most “emphatic” of non-jurisdictional\\n\\nclaim-processing rules. Union Pac. R.R. v. Bhd. of Locomotive Eng'rs & Trainmen Gen.\\n\\nComm. of Adjustment, 558 U.S. 67, 81 (2009) (internal quotation marks omitted).\\n\\n In drawing that distinction here, we find the Supreme Court’s decision in Union\\n\\nPacific particularly instructive. At issue in that case was the jurisdictional status of an\\n\\nagency rule requiring that parties before an administrative tribunal – there, the National\\n\\nRailroad Adjustment Board – submit proof of settlement efforts in mediation, or\\n\\n“conference,” when initiating grievance proceedings. Id. at 76–80. That requirement, the\\n\\nCourt concluded, was not jurisdictional, in that “its satisfaction does not condition the\\n\\nadjudicatory authority of the Board.” Id. at 82. In reaching that determination, the Court\\n\\nemphasized two factors. First, the Board was granted by statute – not regulation – its\\n\\njurisdiction over “all” employment disputes between carriers and their employees, and\\n\\nthat broad grant of adjudicatory authority was not made contingent on proof of mediation\\n\\nefforts. Id. at 82–83 (internal quotation marks omitted). Nor, the Court noted, had\\n\\nCongress given the Board authority to adopt its own rules of “jurisdictional dimension.”\\n\\n 16\\n\\fId. at 83–84. And second, the function of the mediation rule was to provide “instructions\\n\\non party submissions,” and such “pleading instructions,” the Court concluded, are “claim-\\n\\nprocessing, not jurisdictional, rules.” Id. at 85.\\n\\n The same factors govern here, and lead to the same result. As in Union Pacific,\\n\\nthe immigration courts’ adjudicatory authority over removal proceedings comes not from\\n\\nthe agency regulation codified at 8 C.F.R. § 1003.14(a), but from Congress: It is the INA\\n\\nthat “explicitly and directly grants that authority,” Arroyo, 356 F. Supp. 3d at 624\\n\\n(emphasis omitted), providing that “[a]n immigration judge shall conduct proceedings for\\n\\ndeciding the inadmissibility or deportability of an alien,” 8 U.S.C. § 1229a(a)(1). “That\\n\\nstatutory grant of authority is the immigration judges’ ‘subject matter jurisdiction,’ and it\\n\\npreexisted” – by decades – § 1003.14(a)’s reference to the vesting of “jurisdiction” in\\n\\nimmigration court. Arroyo, 356 F. Supp. 3d at 624. And nothing about that broad and\\n\\nmandatory grant of adjudicatory authority, see Holland v. Pardee Coal Co., 269 F.3d\\n\\n424, 431 (4th Cir. 2001) (noting “general rule that ‘shall’ is mandatory”), is made\\n\\ncontingent on compliance with rules governing notices to appear, whether statutory, see 8\\n\\nU.S.C. § 1229(a) (statutory definition of notice to appear), or regulatory, see 8 C.F.R.\\n\\n§ 1003.18(b). See Union Pac. R.R., 558 U.S. at 83 (mediation requirement is not\\n\\n“moored to” statutory grant of adjudicatory authority).\\n\\n Nor – again paralleling Union Pacific – is there any indication that the regulation\\n\\nat 8 C.F.R. § 1003.14(a) was intended to implement some statutory provision giving the\\n\\nAttorney General the authority to “adopt rules of jurisdictional dimension.” Id. at 83–84;\\n\\nsee also Arroyo, 356 F. Supp. 3d at 629. To deem such a regulation “jurisdictional”\\n\\n 17\\n\\fwould be “to say that the Attorney General is ‘in effect, . . . telling himself what he may\\n\\nor may not do.’” Arroyo, 356 F. Supp. 3d at 629 (quoting Garcia v. Lynch, 786 F.3d 789,\\n\\n797 n.2 (9th Cir. 2015) (Berzon, J., concurring)). That is not the way we generally think\\n\\nof jurisdictional rules, which typically operate as “external constraints,” not “internal\\n\\nrules” that can be changed at will by an agency head. Garcia, 786 F.3d at 797 n.2\\n\\n(Berzon, J., concurring). Indeed, it is in part for that reason that several courts have\\n\\nconcluded that § 1003.14(a) cannot “properly be conceived of as jurisdictional.” Arroyo,\\n\\n356 F. Supp. 3d at 629 (quoting Garcia, 786 F.3d at 797 n.2 (Berzon, J., concurring)); see\\n\\nalso Ortiz-Santiago, 924 F.3d at 963 (“While an agency may adopt rules and processes to\\n\\nmaintain order, it cannot define the scope of its power to hear cases.”); Rivera Lopez, 355\\n\\nF. Supp. 3d at 439 (an agency’s “subject-matter jurisdiction” stems from “congressional\\n\\ngrants of authority,” not “a regulation promulgated by the agency itself”).\\n\\n There is also the question of the regulation’s function. See Union Pac. R.R., 588\\n\\nU.S. at 85 (describing regulation there as functioning “essentially [as] pleading\\n\\ninstructions”). As the Supreme Court has explained, “[a]mong the types of rules that\\n\\nshould not be described as jurisdictional are . . . claim-processing rules,” which “seek to\\n\\npromote the orderly progress of litigation by requiring that the parties take certain\\n\\nprocedural steps at certain specified times.” Henderson ex rel. Henderson v. Shinseki,\\n\\n562 U.S. 428, 435 (2011) (internal quotation marks omitted). On its face, that is\\n\\nprecisely what § 1003.14(a) does, laying out the procedural steps that must be taken to\\n\\ndocket a case before an immigration judge: A “charging document” must be filed with\\n\\nthe immigration court by the government – at the time § 1003.14(a) was promulgated, by\\n\\n 18\\n\\fthe Immigration and Naturalization Service (“INS”), then an agency within the\\n\\nDepartment of Justice – and that document must be accompanied by a certificate showing\\n\\nservice on the opposing party. 8 C.F.R. § 1003.14(a). 1 The text alone, in other words,\\n\\nwith its “emphasis on the initiation of proceedings and on service to the opposing party[,]\\n\\nsuggests [§ 1003.14(a)] is focused not on the immigration court’s fundamental power to\\n\\nact but rather on ‘requiring that the parties take certain procedural steps at certain\\n\\nspecified times,’” making it a claim-processing rule rather than a “genuine jurisdictional\\n\\nrequirement.” Rivera Lopez, 355 F. Supp. 3d at 439 (footnote omitted) (quoting\\n\\nHenderson, 562 U.S. at 435–36).\\n\\n The regulation’s history confirms that reading. Before § 1003.14(a)’s predecessor\\n\\nregulation was adopted in 1987, the INS had the authority both to initiate deportation\\n\\nproceedings and to “terminate [those] proceedings at any time prior to the actual\\n\\ncommencement of the hearing.” Aliens and Nationality; Rules of Procedure for\\n\\nProceedings Before Immigration Judges, 50 Fed. Reg. 51,693, 51,693 (Dec. 19, 1985);\\n\\nsee also Arroyo, 356 F. Supp. 3d at 626–27. The original version of § 1003.14(a) –\\n\\npromulgated as part of a “set of uniform procedural rules” for immigration courts – was\\n\\nintended to give immigration courts control over their own calendars, allowing for\\n\\n 1\\n In full, § 1003.14(a) reads as follows: “Jurisdiction vests, and proceedings\\nbefore an Immigration Judge commence, when a charging document is filed with the\\nImmigration Court by the [INS]. The charging document must include a certificate\\nshowing service on the opposing party pursuant to § 1003.32 which indicates the\\nImmigration Court in which the charging document is filed. However, no charging\\ndocument is required to be filed with the Immigration Court to commence bond\\nproceedings pursuant to [other sections] of this chapter.”\\n\\n\\n 19\\n\\f“optimal scheduling” to expedite hearings, by providing for the certainty of a filed\\n\\ndocument – the “charging document” – and limiting the authority of the INS to “cancel”\\n\\na proceeding once a charging document had been filed. 50 Fed. Reg. at 51,693; see also\\n\\nArroyo, 356 F. Supp. 3d at 626–27 (describing regulatory history); In re G-N-C-, 22 I. &\\n\\nN. Dec. 281, 284 (B.I.A. 1998) (§ 1003.14(a) “marks a clear boundary between the time\\n\\nprior to commencement of proceedings, where [an INS] officer has decisive power to\\n\\ncancel proceedings, and the time following commencement, where the [INS] officer\\n\\nmerely has the privilege to move for dismissal of proceedings”). The filing of a charging\\n\\ndocument such as a “notice to appear,” in other words, “marks an agency internal\\n\\nboundary,” Arroyo, 356 F. Supp. 3d at 628, that gives the immigration courts, rather than\\n\\nthe INS or the Department, “control over the docketing of cases,” id. at 627 (internal\\n\\nquotation marks omitted).\\n\\n We think that regulatory history makes clear, were there any doubt, that\\n\\n§ 1003.14(a) is “not a grant of authority” with jurisdictional implications, but something\\n\\nmore like a docketing rule, providing for “the orderly administration of proceedings,\\n\\nincluding deportation proceedings, before the immigration judges.” Id. at 628; see also\\n\\nRivera Lopez, 355 F. Supp. 3d at 439 (analogizing regulation to “a federal court’s local\\n\\nrules . . . which in no way affect the federal court’s subject-matter jurisdiction”). As the\\n\\nSeventh Circuit concluded, “[w]hat the [agency] was doing was establishing exactly what\\n\\n\\n\\n\\n 20\\n\\fit takes properly to commence a case before [an immigration court]. That decision is not\\n\\none of jurisdictional significance.” Ortiz-Santiago, 924 F.3d at 963. 2\\n\\n 2.\\n\\n Our conclusion that § 1003.14(a) is not a jurisdictional rule by itself forecloses\\n\\nCortez’s attack on his 2011 removal order: Even if there were a defect in the notice to\\n\\nappear that was filed with the immigration court, that court did not lack adjudicatory\\n\\nauthority to issue its order. But Cortez also cannot succeed in his attack for a second and\\n\\nindependent reason: The notice to appear in question was not in fact defective.\\n\\n As previewed above, the question here boils down to whether a notice to appear\\n\\nfiled with an immigration court to commence proceedings under 8 C.F.R. § 1003.14(a)\\n\\nmust include the date and time of the noncitizen’s forthcoming removal hearing – which\\n\\nCortez’s did not. Under the regulation, proceedings are initiated with a “charging\\n\\ndocument,” 8 C.F.R. § 1003.14(a), which in turn is defined as one of three documents,\\n\\nincluding a “[n]otice to [a]ppear,” id. § 1003.13. According to Cortez, the required\\n\\ncontents of that “notice to appear” are controlled by 8 U.S.C. § 1229(a), a statutory\\n\\nprovision entitled “Notice to appear” that describes the “written notice [that] . . . shall be\\n\\ngiven in person” to the noncitizen, and requires such notice to specify the “time and place\\n\\n 2\\n Cortez points to our court’s unpublished decision in Shogunle v. Holder, 336 F.\\nApp’x 322 (4th Cir. 2009) (per curiam), to support his position that “jurisdiction” does\\nnot vest in the immigration court until the proper notice is filed. But Shogunle simply\\napplied 8 C.F.R. § 1003.14(a) without deciding whether that rule uses the word\\n“jurisdiction” in the proper or colloquial sense. And in any event, “unpublished opinions\\nare not binding in this [c]ircuit.” United States v. King, 673 F.3d 274, 280 n.5 (4th Cir.\\n2012).\\n\\n\\n 21\\n\\fat which the proceedings will be held,” id. § 1229(a)(1)(G)(i). And in its recent decision\\n\\nin Pereira v. Sessions, Cortez emphasizes, the Supreme Court held that a “notice to\\n\\nappear” that did not include a hearing time could not qualify as a “notice to appear under\\n\\nsection 1229(a).” 138 S. Ct. at 2114 (quoting 8 U.S.C. § 1229b(d)(1)(A)).\\n\\n The government disagrees, and maintains that § 1003.14(a) is satisfied by a notice\\n\\nto appear that complies with the separate regulatory definition set out in 8 C.F.R.\\n\\n§ 1003.15(b)–(c). That definition specifies what information must be “provide[d] . . . to\\n\\nthe Immigration Court,” id. § 1003.15(c), and unlike § 1229(a), as noted above, it does\\n\\nnot include on its detailed list of items the date and time of a subsequent removal hearing.\\n\\nInstead, date and time information must be included in a notice to appear filed under\\n\\n§ 1003.14(a) only “where practicable,” id. § 1003.18(b); in other cases, the immigration\\n\\ncourt itself is responsible for ensuring notice to a noncitizen of a hearing’s “time, place,\\n\\nand date,” id. And Pereira, the government finishes, has no bearing on this matter,\\n\\nbecause it considered only the meaning of a “notice to appear under section 1229(a),”\\n\\n138 S. Ct. at 2114 (quoting 8 U.S.C. § 1229b(d)(1)(A)), and did not address the\\n\\ncommencement of removal proceedings as governed by federal regulations.\\n\\n Many courts have considered this question since Periera was decided in 2018, and\\n\\nthey overwhelmingly have adopted the government’s position. Our sister circuits, with\\n\\none exception, have agreed that the required contents of the notice to appear that\\n\\ncommences removal proceedings under 8 C.F.R. § 1003.14(a) are those set out by\\n\\nregulation, not the INA. See Ali, 924 F.3d at 986; Banegas Gomez, 922 F.3d at 110–12;\\n\\nSantos-Santos v. Barr, 917 F.3d 486, 489–91 (6th Cir. 2019); Karingithi, 913 F.3d at\\n\\n 22\\n\\f1159–62; Hernandez-Perez, 911 F.3d at 310–15. But see Ortiz-Santiago, 924 F.3d at\\n\\n959–63 (indicating that notice to appear without date and time violated § 1003.14(a), but\\n\\nfinding issue forfeited because § 1003.14(a) is nonjurisdictional). 3 And while a\\n\\n“handful” of district courts have ruled for the noncitizen on this issue, “far more district\\n\\ncourts” have sided with the government. United States v. Gomez-Salinas, No. 2:19cr10,\\n\\n2019 WL 1141063, at *5 (E.D. Va. Mar. 12, 2019).\\n\\n We agree with the substantial majority of courts to address this issue, as well as\\n\\nthe district court here: It is the regulatory definition of “notice to appear,” and not\\n\\n§ 1229(a)’s definition, that controls in determining when a case is properly docketed with\\n\\nthe immigration court under 8 C.F.R. § 1003.14(a). As the district court emphasized, the\\n\\nregulations at 8 C.F.R. § 1003.15(b)–(c), specifying the contents of a “notice to appear”\\n\\nfiled to commence immigration court proceedings, do not cross-reference § 1229(a) or\\n\\notherwise incorporate that provision’s requirements. Instead, the regulations set out a\\n\\ndetailed and exhaustive list of their own, enumerating twelve separate items that must be\\n\\nincluded in a notice to appear filed under § 1003.14(a) – with the time and date of a\\n\\nfuture hearing not among them. See Santos-Santos, 917 F.3d at 490 (explaining that\\n\\nregulations establish their own criteria for “notice to appear” rather than incorporating\\n\\n\\n\\n\\n 3\\n Other circuit courts also have ruled for the government in unpublished decisions.\\nThat includes our court, which has issued two per curiam opinions adopting the\\ngovernment’s view. See Leonard v. Whitaker, 746 F. App’x 269, 269–70 (4th Cir. 2018);\\nUnited States v. Perez-Arellano, 756 F. App’x 291, 294 (4th Cir. 2018).\\n\\n\\n 23\\n\\f§ 1229(a)). 4 “If the regulations did not clearly enumerate requirements for the contents\\n\\nof a notice to appear” for purposes of § 1003.14(a), “we might presume they sub silentio\\n\\nincorporated § 1229(a)’s definition. But the plain, exhaustive list of requirements in the\\n\\n. . . regulations renders that presumption inapplicable here.” Karingithi, 913 F.3d at 1160\\n\\n(citation omitted). Indeed, reading into the regulatory list an additional requirement of\\n\\ntime and date information would render meaningless the regulations’ specific command\\n\\nthat such information must be included only “where practicable.” Id. (quoting 8 C.F.R.\\n\\n§ 1003.18(b)).\\n\\n Both text and structure compel the conclusion that it is this separate regulatory\\n\\ndefinition of “notice to appear,” and not the statutory definition in § 1229(a), that\\n\\n“control[s] when and how,” J.A. 17, a case is commenced before an immigration judge\\n\\nfor purposes of § 1003.14(a). First, the regulatory definition, codified at 8 C.F.R.\\n\\n§ 1003.15, is immediately adjacent to the docketing rule, at § 1003.14, by itself a strong\\n\\nindication that the regulatory definition controls. See Doe v. Cooper, 842 F.3d 833, 844\\n\\n(4th Cir. 2016) (describing presumption that adjacent subsections should be read\\n\\n 4\\n Specifically, 8 C.F.R. § 1003.15(b)–(c) require that a notice to appear filed with\\nan immigration court to commence proceedings include the following information: the\\nnature of the proceedings, the legal authority under which the proceedings are conducted,\\nthe acts or conduct of the noncitizen alleged to be in violation of law, the charges against\\nthe noncitizen and the statutory provisions alleged to have been violated, notice that the\\nnoncitizen may be represented by counsel, the address of the immigration court where the\\nnotice to appear is being filed, a statement that the noncitizen must advise that\\nimmigration court of his or her address and telephone number, the noncitizen’s name and\\nany known aliases, the noncitizen’s address, the noncitizen’s registration number, the\\nnoncitizen’s alleged nationality and citizenship, and the language that the noncitizen\\nunderstands.\\n\\n\\n 24\\n\\fharmoniously). And the text of the regulatory definition of “notice to appear” is a\\n\\nsubstantive match with § 1003.14(a) in a way that the statutory definition is not. Both the\\n\\nregulatory provisions are concerned expressly with the contents of the Department’s\\n\\nfiling in the immigration court: Section 1003.14(a) provides that proceedings commence\\n\\n“when a charging document is filed with the Immigration Court,” and § 1003.15\\n\\ndescribes the information that must be provided by the government “to the Immigration\\n\\nCourt.” The statute, in contrast, describes what “notice” must be “given” to a noncitizen\\n\\nin removal proceedings. 8 U.S.C. § 1229(a)(1) (requiring that a notice to appear “shall be\\n\\ngiven . . . to the alien”). That concern is of course important, but it also is distinct from\\n\\nthe question of what information must be provided to an immigration court at a case’s\\n\\noutset – a question on which § 1229(a) is silent. 5\\n\\n Our reading of the statute and regulations is consistent not only with the decisions\\n\\nof the many courts listed above, but also with the position taken by the Board of\\n\\nImmigration Appeals. In a precedential decision issued shortly after the Supreme Court\\n\\nruled in Pereira, the Board found that it is the regulatory definition in § 1003.15(b)–(c)\\n\\nthat controls the required content of a “notice to appear” to initiate proceedings before an\\n\\n\\n 5\\n Cortez suggests that the title of the statutory section in question – “Initiation of\\nremoval proceedings,” 8 U.S.C. § 1229 – suggests that it establishes filing as well as\\nnotice requirements. But the statutory text is clear, and clearly limited to the notice to be\\nprovided to a noncitizen in removal proceedings, giving us no warrant to reason by\\nimplication from the title. See Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S. Ct.\\n883, 893 (2018) (while section headings may “supply cues” as to congressional intent,\\nthey “cannot limit the plain meaning of a statutory text” (internal quotation marks\\nomitted)).\\n\\n\\n 25\\n\\fimmigration judge. In re Bermudez-Cota, 27 I. & N. Dec. 441, 443–45 (B.I.A. 2018).\\n\\nThat regulation, the Board explained, does not mandate that the document specify the\\n\\ntime and date of a future removal hearing. Id. at 445. Accordingly, the Board rejected a\\n\\nnoncitizen’s claim that his proceedings should be terminated because the notice to appear\\n\\nfiled with the immigration court omitted that information. Id. at 447. 6\\n\\n Cortez’s contrary argument relies primarily on the Supreme Court’s decision in\\n\\nPereira, holding that the requirements of 8 U.S.C. § 1229(a) are satisfied only by a\\n\\n“notice to appear” that includes date and time information for a removal hearing. But\\n\\nlike the district court, as well as other courts to consider the question, we think that\\n\\nreliance is misplaced. See J.A. 17–18 (distinguishing Pereira); Banegas Gomez, 922\\n\\nF.3d at 111 (same); Santos-Santos, 917 F.3d at 489–90 (same); Karingithi, 913 F.3d at\\n\\n1160–61 (same).\\n\\n\\n\\n\\n 6\\n The Board also found in Bermudez-Cota that the statutory definition in § 1229(a)\\nis satisfied by receipt of “proper notice of the time and place of [a removal] proceeding”\\nsubsequent to service of a “notice to appear” initially filed with an immigration court. 27\\nI. & N. Dec. at 447; see also In re Mendoza-Hernandez, 27 I. & N. Dec. 520, 529 (B.I.A.\\n2019) (two-step notice satisfies the INA’s notice requirements). We recognize that there\\nis disagreement on this point, with the Ninth Circuit recently holding that a two-step\\nnotice process does not comport with the statutory definition of “notice to appear” under\\n§ 1229(a) and thus does not trigger the “stop-time” rule that limits the period of a\\nnoncitizen’s physical presence in the United States for purposes of cancellation of\\nremoval relief. Lopez v. Barr, 925 F.3d 396, 405 (2019). We have no occasion to\\naddress that issue here. Cortez argues only that the notice to appear filed in immigration\\ncourt failed to vest that court with “jurisdiction” under 8 C.F.R. § 1003.14(a); he raises\\nno independent claim that he received improper notice under 8 U.S.C. § 1229(a), nor any\\nother statutory claim.\\n\\n\\n 26\\n\\f At issue in Pereira was a distinct statutory question at the intersection of two INA\\n\\nprovisions. Under the first, providing for the so-called “stop-time” rule, the period of a\\n\\nnoncitizen’s continuous presence in the United States – which governs eligibility for\\n\\ncertain forms of relief from removal – is “deemed to end . . . when the alien is served a\\n\\nnotice to appear under section 1229(a).” 8 U.S.C. § 1229b(d)(1) (emphasis added). And\\n\\n“section 1229(a)” is the by-now familiar statutory section specifying that a “notice to\\n\\nappear” must include, among other information, “[t]he time and place at which [removal]\\n\\nproceedings will be held.” Id. § 1229(a)(1)(G)(i). In Pereira, the Court held that\\n\\n§ 1229b(d)(1)’s stop-time rule was not triggered by a notice to appear that omitted the\\n\\ndate and time of a removal hearing. “By expressly referencing § 1229(a),” the Court\\n\\nreasoned, the stop-time provision “specifies where to look to find out what ‘notice to\\n\\nappear’ means.” 138 S. Ct. at 2114. And § 1229(a), in turn, “clarifies that the type of\\n\\nnotice” called for under the stop-time provision, id., is one that includes “[t]he time and\\n\\nplace at which the [removal] proceedings will be held,” id. (alterations in original)\\n\\n(quoting 8 U.S.C. § 1229(a)(1)(G)(i)).\\n\\n That reasoning has no application here. As highlighted above, the regulatory\\n\\ndefinition of “notice to appear” in § 1003.14(a), unlike the stop-time provision at 8\\n\\nU.S.C. § 1229b(d)(1), does not cross-reference “a notice to appear under section\\n\\n1229(a).” The “glue that bond[ed]” the stop-time rule to § 1229(a)’s requirements in\\n\\nPereira, 138 S. Ct. at 2117, in other words, is missing when it comes to § 1003.14(a)’s\\n\\ndocketing rule. See Banegas Gomez, 922 F.3d at 111 (“[N]o such statutory glue bonds\\n\\nthe Immigration Court’s [authority under § 1003.14(a)] to § 1229(a)’s requirements.”).\\n\\n 27\\n\\fAnd for the reasons given above, there is nothing else to suggest that “Pereira’s\\n\\ndefinition of a ‘notice to appear under section 1229(a)’” would “govern the meaning of\\n\\n‘notice to appear’ under an unrelated regulatory provision.” Karingithi, 913 F.3d at\\n\\n1161. On the contrary, Pereira stressed repeatedly that its holding was “narrow,” 138 S.\\n\\nCt. at 2110, addressing the requirements of a notice to appear only in the “context” of the\\n\\nINA’s notice and stop-time provisions, id. at 2115. The filing regulations at issue in this\\n\\ncase were never mentioned in Pereira, and Pereira never indicated that its holding would\\n\\napply to the “distinct . . . regulations at issue here,” Santos-Santos, 917 F.3d at 489.\\n\\n Cortez has one final argument: Even if not mandated by Pereira, we should read\\n\\n“notice to appear” under the regulations to require the same content as a “notice to\\n\\nappear” under § 1229(a), either because the agency did not intend to create a system with\\n\\ntwo different and distinct “notices to appear,” or because whatever the agency’s intent, it\\n\\nlacked authority to bypass the statutory specifications for a “notice to appear.” We\\n\\ndisagree.\\n\\n With respect to the agency’s intent, Cortez points to regulatory history suggesting,\\n\\nhe says, that the definition at 8 C.F.R. § 1003.15(b)–(c) was promulgated in order to\\n\\n“implement[] the language of the [INA] indicating that the time and place of the hearing\\n\\nmust be on the Notice to Appear,” Inspection and Expedited Removal of Aliens, 62 Fed.\\n\\nReg. 444, 449 (Jan. 3, 1997). But as described above, the definition in fact does not\\n\\ninclude that requirement; instead, the regulations expressly reject it, providing that date\\n\\nand time information is to be provided in a notice to appear filed under § 1003.14(a) only\\n\\n“where practicable.” 8 C.F.R. § 1003.18(b). The regulations, that is, unambiguously do\\n\\n 28\\n\\fcreate a dichotomy between the notice that must be given to a noncitizen under statutory\\n\\n§ 1229(a) and the information that must be provided to an immigration court to\\n\\ncommence proceedings under regulatory § 1003.14(a). In light of that textual clarity, we\\n\\nneed not delve deeply into the tricky question of regulatory intent. See Tenn. Valley\\n\\nAuth. v. Hill, 437 U.S. 153, 184 n.29 (1978) (where text is “plain and unambiguous on its\\n\\nface,” courts do not look to “history as a guide to its meaning”).\\n\\n Cortez’s argument fares no better when it comes to the agency’s authority.\\n\\nAccording to Cortez, a regulatory definition for a “notice to appear” that does not\\n\\nincorporate § 1229(a)’s date and time requirement conflicts with the INA and is therefore\\n\\nvoid. But there is no conflict because, as we have explained, the regulations in question\\n\\nand § 1229(a) speak to different issues – filings in the immigration court to initiate\\n\\nproceedings, on the one hand, and notice to noncitizens of removal hearings, on the other\\n\\n– and the INA “says nothing about” how a case is to be docketed with the immigration\\n\\ncourt. Karingithi, 913 F.3d at 1160; see also Banegas Gomez, 922 F.3d at 110 (the INA\\n\\n“does not . . . explain when or how jurisdiction vests” in immigration courts (internal\\n\\nquotation marks omitted)). Because § 1003.14(a)’s docketing procedures are a product of\\n\\nregulation, not dictated by statute, the agency is free to define qualifying charging\\n\\ndocuments differently than the document described in § 1229(a) and used for other\\n\\npurposes.\\n\\n Accordingly, we hold that it is the regulatory definition of a “notice to appear” –\\n\\nnot the definition at 8 U.S.C. § 1229(a) – that controls whether the government properly\\n\\ninitiated an immigration proceeding under 8 C.F.R. § 1003.14(a). The notice to appear\\n\\n 29\\n\\ffiled with the immigration court in Cortez’s case conformed to that regulatory definition.\\n\\nFor that reason, as well, Cortez’s collateral attack on his 2011 removal order cannot\\n\\nsucceed.\\n\\n\\n\\n III.\\n\\n For the foregoing reasons, we affirm the judgment of the district court.\\n\\n AFFIRMED\\n\\n\\n\\n\\n 30\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2952,"cells":{"id":{"kind":"number","value":4641295,"string":"4,641,295"},"name":{"kind":"string","value":"Robert Sanchez TURNER, Plaintiff - Appellant, v. Al THOMAS, Jr., in His Individual Capacity and His Official Capacity as Chief of Charlottesville Police Department; City of Charlottesville, Virginia ; W. Steven Flaherty, in His Individual Capacity, Defendants - Appellees."},"name_abbreviation":{"kind":"string","value":"Robert Turner v. Al Thomas, Jr."},"decision_date":{"kind":"string","value":"2019-07-19"},"docket_number":{"kind":"string","value":"18-1733"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Floyd, Harris, Richardson\", \"parties\": \"\", \"opinions\": [{\"author\": \"FLOYD, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1733\\n\\n\\nROBERT SANCHEZ TURNER,\\n\\n Plaintiff - Appellant,\\n\\n v.\\n\\nAL THOMAS, JR., in his individual capacity and his official capacity as Chief of\\nCharlottesville Police Department; CITY OF CHARLOTTESVILLE, VIRGINIA;\\nW. STEVEN FLAHERTY, in his individual capacity,\\n\\n Defendants - Appellees.\\n\\n\\n\\nAppeal from the United States District Court for the Western District of Virginia, at\\nCharlottesville. Norman K. Moon, Senior, District Judge. (3:17-cv-00064-NKM-JCH)\\n\\n\\nArgued: March 21, 2019 Decided: July 19, 2019\\n\\n\\nBefore FLOYD, HARRIS, and RICHARDSON, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Floyd wrote the opinion in which Judge Harris\\nand Judge Richardson joined.\\n\\n\\nARGUED: Dallas S. LePierre, NEXUS DERECHOS HUMANOS ATTORNEYS,\\nINC., Atlanta, Georgia, for Appellant. Michelle Shane Kallen, OFFICE OF THE\\nATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia; David Patrick Corrigan,\\nHARMAN CLAYTOR CORRIGAN & WELLMAN, P.C., Glen Allen, Virginia; Richard\\nHustis Milnor, ZUNKA, MILNOR & CARTER LTD, Charlottesville, Virginia, for\\nAppellees. ON BRIEF: Mario B. Williams, NEXUS DERECHOS HUMANOS\\n\\fATTORNEYS, INC., Atlanta, Georgia, for Appellants. Mark R. Herring, Attorney\\nGeneral, Samuel T. Towell, Deputy Attorney General, Erin McNeill, Assistant Attorney\\nGeneral, Toby J. Heytens, Solicitor General, Matthew R. McGuire, Principal Deputy\\nSolicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,\\nRichmond, Virginia, for Appellee W. Steven Flaherty. Jeremy D. Capps, Douglas E.\\nPittman, HARMAN CLAYTOR CORRIGAN & WELLMAN, P.C., Glen Allen,\\nVirginia, for Appellee Al Thomas, Jr.\\n\\n\\n\\n\\n 2\\n\\fFLOYD, Circuit Judge:\\n\\n Appellant Robert Sanchez Turner was attacked by protesters at the “Unite the\\n\\nRight” rally on August 12, 2017 in Charlottesville, Virginia. Turner claims that, pursuant\\n\\nto a stand-down order under which police officers at the rally were instructed not to\\n\\nintervene in violence among protesters, officers watched his attack and did nothing to\\n\\nhelp. Turner brought suit against Al Thomas Jr., former Chief of the Charlottesville\\n\\nPolice Department; W. Stephen Flaherty, Virginia State Police Superintendent; and the\\n\\nCity of Charlottesville. The district court concluded that Thomas and Flaherty were\\n\\nentitled to qualified immunity and dismissed Turner’s complaint for failure to state a\\n\\nclaim. We agree with the district court that the facts alleged in Turner’s complaint do not\\n\\namount to a violation of clearly established law. Accordingly, we affirm.\\n\\n\\n I.\\n\\n Because Turner’s claim was dismissed on the pleadings, we take as true all well-\\n\\npleaded allegations in the complaint. See Nemet Chevrolet, Ltd. v. Consumeraffairs.com,\\n\\nInc., 591 F.3d 250, 253 (4th Cir. 2009). On August 12, 2017, the “Unite the Right” rally\\n\\nwas held in Charlottesville’s Emancipation Park to protest the City’s decision to change\\n\\nthe Park’s name from “Lee Park” and remove a Confederate monument from its grounds.\\n\\nJason Kessler, leader of the far-right advocacy group “Unity & Security for America,”\\n\\nled efforts to organize the rally.\\n\\n The City granted Kessler a permit to hold the rally and informed him that heavy\\n\\npolice presence and security would be provided. But less than a week before the event,\\n\\n\\n\\n 3\\n\\fciting traffic and safety concerns, the City revoked the permit. Kessler challenged the\\n\\nrevocation in the Western District of Virginia on First and Fourteenth Amendment\\n\\ngrounds, and the district court reinstated the permit. According to Turner, Thomas and\\n\\nFlaherty were “enraged” by the decision to reinstate the permit. J.A. 24. In response,\\n\\nthey enacted a stand-down order under which officers on duty at the rally would “refrain\\n\\nfrom intervening in any violent confrontations between white supremacists and counter-\\n\\nprotesters unless given a direct command to do so.” J.A. 25. Turner alleges that officers\\n\\ntold protesters at the rally about the stand-down order. For example, when demonstrators\\n\\nasked if police planned to respond to violent attacks, at least one officer responded by\\n\\nsaying “that’s not my job.” J.A. 26.\\n\\n Turner attended the rally as a counter-protester. He alleges that while he\\n\\ndemonstrated peacefully on the sidewalk adjacent to the Park, “KKK\\n\\nmembers/sympathizers” exited the Park and began to engage with counter-protesters.\\n\\nJ.A. 27–28. According to Turner, the “KKK members/sympathizers” attacked him for\\n\\nmore than thirty seconds, spraying his eyes with mace, beating him with a stick, and\\n\\nthrowing bottles of urine at him, all while police looked on and did nothing. J.A. 26.\\n\\nTurner alleges that despite a warning from the Department of Homeland Security that the\\n\\nrally could turn violent, police did not wear riot gear to patrol the rally. Approximately\\n\\nfive hours after the rally began, officers changed into riot gear and began to clear the\\n\\nPark, though at that point Turner had already been attacked.\\n\\n Turner brought suit under 42 U.S.C. § 1983. In relevant part, Turner sought to\\n\\nhold Thomas and Flaherty directly liable for violation of his substantive due process\\n\\n\\n 4\\n\\frights based on the police department’s failure to protect him from violent protesters at\\n\\nthe rally. 1\\n\\n\\n\\n II.\\n\\n We review de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6),\\n\\naccepting all well-pleaded facts as true and drawing all reasonable inferences in favor of\\n\\nthe plaintiff. See Nemet Chevrolet, 591 F.3d at 253. However, we “need not accept legal\\n\\nconclusions couched as facts or unwarranted inferences, unreasonable conclusions, or\\n\\narguments.” Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (internal\\n\\nquotation marks omitted). The complaint must provide “sufficient factual matter,\\n\\naccepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,\\n\\n556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570\\n\\n(2007)).\\n\\n\\n\\n\\n1\\n Additionally, Turner’s complaint sought to hold Thomas and Flaherty liable under a\\ntheory of supervisory liability and the City of Charlottesville liable under Monell v.\\nDepartment of Social Services of the City of New York, 436 U.S. 658 (1978). We need\\nnot address the supervisory-liability claim separately, because Turner has not argued that\\nthe qualified-immunity analysis should proceed any differently for that claim. We also\\nfind that Turner has waived his claim against the City of Charlottesville. At a hearing\\nbefore the district court, Turner said he had “dropped” this claim. J.A. 178. Then, in his\\nopening brief on appeal, Turner appeared to focus entirely on the qualified-immunity\\nissue, which does not apply to the City. In response, the City argued that this claim had\\nbeen waived; Turner declined to address the waiver argument in his reply, which did not\\neven mention his claim against City. It was not until oral argument that Turner sought to\\npreserve this claim. We conclude that Turner’s inattention to this claim on appeal,\\ncombined with his express statement to the district court, effectively waived it.\\nTherefore, we do not address it.\\n\\n\\n 5\\n\\f III.\\n\\n Before us is Turner’s claim that Thomas and Flaherty violated his substantive due\\n\\nprocess rights by ordering officers at the rally not to intervene in violence among\\n\\nprotesters. In general, a defendant’s mere failure to act does not give rise to liability for a\\n\\ndue process violation. See DeShaney v. Winnebago County Department of Social\\n\\nServices, 489 U.S. 189, 196 (1989). Turner seeks to avoid that rule by invoking the state-\\n\\ncreated danger exception, under which state actors may be liable for failing to protect\\n\\ninjured parties from dangers which the state actors either created or enhanced. See\\n\\nPinder v. Johnson, 54 F.3d 1169, 1176 (4th Cir. 1995). But it was not clearly established\\n\\nat the time of the rally that failing to intervene in violence among the protesters would\\n\\nviolate any particular protester’s due process rights. Accordingly, we agree with the\\n\\ndistrict court that Thomas and Flaherty are entitled to qualified immunity, and we affirm\\n\\nthe dismissal of Turner’s complaint.\\n\\n Qualified immunity shields state actors from liability under § 1983 liability when\\n\\ntheir “conduct does not violate clearly established statutory or constitutional rights of\\n\\nwhich a reasonable person would have known.” Wiley v. Doory, 14 F.3d 993, 995 (4th\\n\\nCir. 1994) (quoting Harlow v. Fitzgerald, 457 US. 800, 818 (1982)). To determine\\n\\nwhether a defendant is entitled to qualified immunity, we ask two questions: (1) Has the\\n\\nplaintiff alleged a violation of a federal right? (2) Was the right at issue clearly\\n\\nestablished at the time of the alleged violation? Pearson v. Callahan, 555 U.S. 223, 236\\n\\n(2009). We may decide, on a case-by-case basis, which question to answer first. Id. If\\n\\nthe answer to either question is “no,” then the defendant is entitled to qualified immunity.\\n\\n\\n 6\\n\\f In this case, we begin by asking whether the right asserted by Turner was clearly\\n\\nestablished at the time of its alleged violation. To determine whether a right was clearly\\n\\nestablished, we typically ask whether, when the defendant violated the right, there existed\\n\\neither controlling authority—such as a published opinion of this Court—or a “robust\\n\\nconsensus of persuasive authority,” Booker v. S.C. Dept of Corr., 855 F.3d 533, 544 (4th\\n\\nCir. 2017) (internal quotation marks omitted), that would have given the defendants “fair\\n\\nwarning that their conduct was wrongful.” Williamson v. Stirling, 912 F.3d 154, 187 (4th\\n\\nCir. 2018) (internal quotation marks omitted). Thus, we must determine whether, at the\\n\\ntime of the rally, there existed legal authority giving Thomas and Flaherty fair warning\\n\\nthat ordering officers not to intervene in violence among protesters would implicate the\\n\\nstate-created danger doctrine and amount to a violation of protesters’ due process rights.\\n\\n As our starting point, we turn to DeShaney v. Winnebago County, 489 U.S. at 196.\\n\\nThere, the Supreme Court stated that because the Fourteenth Amendment was intended to\\n\\nprotect “the people from the State, not to ensure that the State protected them from each\\n\\nother . . . [a]s a general matter . . . a State’s failure to protect an individual against private\\n\\nviolence simply does not constitute a violation of the Due Process Clause.” Id. at 196–\\n\\n97. Given that “the Due Process Clause does not require the State to provide its citizens\\n\\nwith particular protective services,” wrote the Court, “it follows that the State cannot be\\n\\nheld liable for injuries that could have been averted had it chosen to provide them.” Id. at\\n\\n196–97.\\n\\n There are two exceptions to the rule laid out in DeShaney. The first arises when\\n\\nthe individual and the state have a “special relationship,” such as a custodial relationship,\\n\\n\\n 7\\n\\fthat gives rise to an affirmative duty to protect. See id. at 199–200 (“It is the State’s\\n\\naffirmative act of restraining the individual’s freedom to act on his own behalf . . . which\\n\\nis the ‘deprivation of liberty’ triggering the protections of the Due Process Clause, not its\\n\\nfailure to act to protect his liberty interests against harms inflicted by other means.”).\\n\\nTurner does not claim that the “special relationship” exception applies in this case.\\n\\n The second, which DeShaney implicitly recognized and which Turner relies upon\\n\\nhere, is known as the state-created danger doctrine. See id. at 201 (“While the State may\\n\\nhave been aware of the dangers that [the child] faced . . . it played no part in their\\n\\ncreation, nor did it do anything to render him any more vulnerable to them.”). Under this\\n\\ndoctrine, a state actor may be held liable for harm resulting from “affirmative actions”\\n\\nthat created or enhanced the dangerous conditions that produced the plaintiff’s injury.\\n\\nSee Pinder, 54 F.3d at 1176. “[T]o establish § 1983 liability based on a state-created\\n\\ndanger theory, a plaintiff must show that the state actor created or increased the risk of\\n\\nprivate danger, and did so directly through affirmative acts, not merely through inaction\\n\\nor omissions.” Doe v. Rosa, 795 F.3d 429, 439 (4th Cir. 2015). “Put another way, ‘state\\n\\nactors may not disclaim liability when they themselves throw others to the lions,’ but that\\n\\ndoes not ‘entitle persons who rely on promises of aid to some greater degree of protection\\n\\nfrom lions at large.’” Id. (quoting Pinder, 54 F.3d at 1177).\\n\\n As we recognized in Pinder, the state-created danger doctrine is narrowly drawn,\\n\\nand the bar for what constitutes an “affirmative act” is high. 54 F.3d at 1175. In that\\n\\ncase, plaintiff Pinder called the police on her former boyfriend, Pittman, who had broken\\n\\ninto her home, assaulted her, and threatened to kill her and her three children. Id. at\\n\\n\\n 8\\n\\f1172. After Pittman was arrested, Pinder asked the investigating officer if it would be\\n\\nsafe for her to return to work that evening and leave her children at home. Id. The\\n\\nofficer assured her that Pittman would be detained overnight on assault charges and could\\n\\nnot be released until the county commissioner became available for a hearing the\\n\\nfollowing morning. Id. However, instead of the assault charge, the officer filed lesser\\n\\ncharges against Pittman, and he was released from custody that night. Id. Pittman then\\n\\nreturned to Pinder’s home after she left for work and set fire to it, killing her three\\n\\nchildren who were sleeping inside. Id.\\n\\n Pinder brought a due process claim against the officer who had assured her that\\n\\nPittman would be detained overnight, seeking to invoke the state-created danger doctrine.\\n\\nId. at 1175. We rejected this application of the doctrine, however, holding that the officer\\n\\ndid not create the danger that resulted in the children’s death, but “simply failed to\\n\\nprovide adequate protection from it.” Id. “It cannot be,” we noted, “that the state\\n\\n‘commits an affirmative act’ or ‘creates a danger’ every time it does anything that makes\\n\\ninjury at the hands of a third party more likely.” Id. (internal quotation marks omitted).\\n\\nWe acknowledged that “[a]t some point on the spectrum between action and inaction, the\\n\\nstate’s conduct may implicate it in the harm caused,” but we concluded that “no such\\n\\npoint [was] reached” in Pinder’s case. Id.; see also id. at 1176 n.* (observing that\\n\\nalthough “inaction can often be artfully recharacterized as ‘action,’ courts should resist\\n\\nthe temptation to inject this alternate framework into omission cases by stretching the\\n\\nconcept of ‘affirmative acts’ beyond the context of immediate interactions between the\\n\\nofficer and the [victim]”).\\n\\n\\n 9\\n\\f Following Pinder’s narrow reading of the state-created danger doctrine, we have\\n\\nnever issued a published opinion recognizing a successful state-created danger claim.\\n\\nRather, our precedent on the issue has emphasized the doctrine’s limited reach and the\\n\\nexactingness of the affirmative-conduct standard. For instance, in Doe v. Rosa, we held\\n\\nthat the state-created danger doctrine did not apply when a college president, Rosa, failed\\n\\nto intervene after learning that a counselor at the college’s summer camp sexually abused\\n\\ncampers for several years. 795 F.3d at 431. One of the counselor’s victims and the\\n\\nvictim’s family (the “Does”) brought suit, claiming that Rosa not only failed to report the\\n\\nabuse, but also actively took steps to conceal it. Id. For example, the Does alleged that\\n\\nRosa omitted abuse allegations from relevant records and purposefully obfuscated the\\n\\nnature of the Does’ complaint to college officials. Id. at 434–35. We held that the Does’\\n\\nclaims did not describe the “affirmative actions” necessary to implicate the state-created\\n\\ndanger doctrine. Id. at 441 (“No amount of semantics can disguise the fact that the real\\n\\n‘affirmative act’ here was committed by [the counselor] not by Rosa.”). We noted that\\n\\nthe Does’ claims “lack[ed] the nexus necessary for any of Rosa’s alleged conduct to be\\n\\n‘affirmative acts’” that created or enhanced the danger to the Does, specifically, because\\n\\nRosa “did not meet or speak with the Does, and by all accounts, was not even aware\\n\\n[they] existed.” Id.\\n\\n Against this background, we conclude that it was not clearly established at the\\n\\ntime of the rally that ordering officers not to intervene in private violence between\\n\\nprotesters was an affirmative act within the meaning of the state-created danger doctrine.\\n\\nOur precedent sets an exactingly high bar for what constitutes affirmative conduct\\n\\n\\n 10\\n\\fsufficient to invoke the state-created danger doctrine. Turner has put forth no facts\\n\\nsuggesting that a stand-down order crosses the line from inaction to action when the state\\n\\nconduct in Pinder and Doe did not. Acting under Pinder’s teaching that state actors may\\n\\nnot be held liable for “st[anding] by and d[oing] nothing when suspicious circumstances\\n\\ndictated a more active role for them,” Thomas and Flaherty could have reasonably\\n\\nconcluded that a stand-down order violated no constitutional right. 54 F.3d at 1175.\\n\\nAccordingly, Turner has not alleged a violation of clearly established law, and Thomas\\n\\nand Flaherty are entitled to qualified immunity. 2\\n\\n\\n\\n IV.\\n\\n For the foregoing reasons, the judgment of the district court is\\n\\n AFFIRMED.\\n\\n\\n\\n\\n2\\n Turner argues that in assessing the merits of his substantive due process claim, we\\nshould ask whether Thomas and Flaherty acted with deliberate indifference to Turner’s\\nsafety. But as we have stated, “apart from situations involving custody, the Supreme\\nCourt has never applied a ‘deliberate indifference’ standard merely because the State\\ncreated a danger that resulted in harm.” Slaughter v. Mayor & City Council of Baltimore,\\n682 F.3d 317, 321 (4th Cir. 2013); see also Waybright, 528 F.3d 199, 205 (4th Cir. 2008)\\n(“For a due process challenge to executive action to succeed, the general rule is that the\\naction must have been ‘intended to injure in some way unjustifiable by the government\\ninterest.’”). Because there was no clearly established law imposing liability based on\\ndeliberate indifference in this context, qualified immunity shields Thomas and Flaherty\\nfrom such liability.\\n\\n\\n\\n 11\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4418548/\", \"author_raw\": \"FLOYD, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"FLOYD"},"judge2":{"kind":"string","value":"HARRIS"},"judge3":{"kind":"string","value":"RICHARDSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4641295/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Robert Sanchez TURNER, Plaintiff - Appellant, v. Al THOMAS, Jr., in His Individual Capacity and His Official Capacity as Chief of Charlottesville Police Department; City of Charlottesville, Virginia ; W. Steven Flaherty, in His Individual Capacity, Defendants - Appellees.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-07-19\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1733\n\n\nROBERT SANCHEZ TURNER,\n\n Plaintiff - Appellant,\n\n v.\n\nAL THOMAS, JR., in his individual capacity and his official capacity as Chief of\nCharlottesville Police Department; CITY OF CHARLOTTESVILLE, VIRGINIA;\nW. STEVEN FLAHERTY, in his individual capacity,\n\n Defendants - Appellees.\n\n\n\nAppeal from the United States District Court for the Western District of Virginia, at\nCharlottesville. Norman K. Moon, Senior, District Judge. (3:17-cv-00064-NKM-JCH)\n\n\nArgued: March 21, 2019 Decided: July 19, 2019\n\n\nBefore FLOYD, HARRIS, and RICHARDSON, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Floyd wrote the opinion in which Judge Harris\nand Judge Richardson joined.\n\n\nARGUED: Dallas S. LePierre, NEXUS DERECHOS HUMANOS ATTORNEYS,\nINC., Atlanta, Georgia, for Appellant. Michelle Shane Kallen, OFFICE OF THE\nATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia; David Patrick Corrigan,\nHARMAN CLAYTOR CORRIGAN & WELLMAN, P.C., Glen Allen, Virginia; Richard\nHustis Milnor, ZUNKA, MILNOR & CARTER LTD, Charlottesville, Virginia, for\nAppellees. ON BRIEF: Mario B. Williams, NEXUS DERECHOS HUMANOS\n\fATTORNEYS, INC., Atlanta, Georgia, for Appellants. Mark R. Herring, Attorney\nGeneral, Samuel T. Towell, Deputy Attorney General, Erin McNeill, Assistant Attorney\nGeneral, Toby J. Heytens, Solicitor General, Matthew R. McGuire, Principal Deputy\nSolicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,\nRichmond, Virginia, for Appellee W. Steven Flaherty. Jeremy D. Capps, Douglas E.\nPittman, HARMAN CLAYTOR CORRIGAN & WELLMAN, P.C., Glen Allen,\nVirginia, for Appellee Al Thomas, Jr.\n\n\n\n\n 2\n\fFLOYD, Circuit Judge:\n\n Appellant Robert Sanchez Turner was attacked by protesters at the “Unite the\n\nRight” rally on August 12, 2017 in Charlottesville, Virginia. Turner claims that, pursuant\n\nto a stand-down order under which police officers at the rally were instructed not to\n\nintervene in violence among protesters, officers watched his attack and did nothing to\n\nhelp. Turner brought suit against Al Thomas Jr., former Chief of the Charlottesville\n\nPolice Department; W. Stephen Flaherty, Virginia State Police Superintendent; and the\n\nCity of Charlottesville. The district court concluded that Thomas and Flaherty were\n\nentitled to qualified immunity and dismissed Turner’s complaint for failure to state a\n\nclaim. We agree with the district court that the facts alleged in Turner’s complaint do not\n\namount to a violation of clearly established law. Accordingly, we affirm.\n\n\n I.\n\n Because Turner’s claim was dismissed on the pleadings, we take as true all well-\n\npleaded allegations in the complaint. See Nemet Chevrolet, Ltd. v. Consumeraffairs.com,\n\nInc., 591 F.3d 250, 253 (4th Cir. 2009). On August 12, 2017, the “Unite the Right” rally\n\nwas held in Charlottesville’s Emancipation Park to protest the City’s decision to change\n\nthe Park’s name from “Lee Park” and remove a Confederate monument from its grounds.\n\nJason Kessler, leader of the far-right advocacy group “Unity & Security for America,”\n\nled efforts to organize the rally.\n\n The City granted Kessler a permit to hold the rally and informed him that heavy\n\npolice presence and security would be provided. But less than a week before the event,\n\n\n\n 3\n\fciting traffic and safety concerns, the City revoked the permit. Kessler challenged the\n\nrevocation in the Western District of Virginia on First and Fourteenth Amendment\n\ngrounds, and the district court reinstated the permit. According to Turner, Thomas and\n\nFlaherty were “enraged” by the decision to reinstate the permit. J.A. 24. In response,\n\nthey enacted a stand-down order under which officers on duty at the rally would “refrain\n\nfrom intervening in any violent confrontations between white supremacists and counter-\n\nprotesters unless given a direct command to do so.” J.A. 25. Turner alleges that officers\n\ntold protesters at the rally about the stand-down order. For example, when demonstrators\n\nasked if police planned to respond to violent attacks, at least one officer responded by\n\nsaying “that’s not my job.” J.A. 26.\n\n Turner attended the rally as a counter-protester. He alleges that while he\n\ndemonstrated peacefully on the sidewalk adjacent to the Park, “KKK\n\nmembers/sympathizers” exited the Park and began to engage with counter-protesters.\n\nJ.A. 27–28. According to Turner, the “KKK members/sympathizers” attacked him for\n\nmore than thirty seconds, spraying his eyes with mace, beating him with a stick, and\n\nthrowing bottles of urine at him, all while police looked on and did nothing. J.A. 26.\n\nTurner alleges that despite a warning from the Department of Homeland Security that the\n\nrally could turn violent, police did not wear riot gear to patrol the rally. Approximately\n\nfive hours after the rally began, officers changed into riot gear and began to clear the\n\nPark, though at that point Turner had already been attacked.\n\n Turner brought suit under 42 U.S.C. § 1983. In relevant part, Turner sought to\n\nhold Thomas and Flaherty directly liable for violation of his substantive due process\n\n\n 4\n\frights based on the police department’s failure to protect him from violent protesters at\n\nthe rally. 1\n\n\n\n II.\n\n We review de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6),\n\naccepting all well-pleaded facts as true and drawing all reasonable inferences in favor of\n\nthe plaintiff. See Nemet Chevrolet, 591 F.3d at 253. However, we “need not accept legal\n\nconclusions couched as facts or unwarranted inferences, unreasonable conclusions, or\n\narguments.” Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (internal\n\nquotation marks omitted). The complaint must provide “sufficient factual matter,\n\naccepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,\n\n556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570\n\n(2007)).\n\n\n\n\n1\n Additionally, Turner’s complaint sought to hold Thomas and Flaherty liable under a\ntheory of supervisory liability and the City of Charlottesville liable under Monell v.\nDepartment of Social Services of the City of New York, 436 U.S. 658 (1978). We need\nnot address the supervisory-liability claim separately, because Turner has not argued that\nthe qualified-immunity analysis should proceed any differently for that claim. We also\nfind that Turner has waived his claim against the City of Charlottesville. At a hearing\nbefore the district court, Turner said he had “dropped” this claim. J.A. 178. Then, in his\nopening brief on appeal, Turner appeared to focus entirely on the qualified-immunity\nissue, which does not apply to the City. In response, the City argued that this claim had\nbeen waived; Turner declined to address the waiver argument in his reply, which did not\neven mention his claim against City. It was not until oral argument that Turner sought to\npreserve this claim. We conclude that Turner’s inattention to this claim on appeal,\ncombined with his express statement to the district court, effectively waived it.\nTherefore, we do not address it.\n\n\n 5\n\f III.\n\n Before us is Turner’s claim that Thomas and Flaherty violated his substantive due\n\nprocess rights by ordering officers at the rally not to intervene in violence among\n\nprotesters. In general, a defendant’s mere failure to act does not give rise to liability for a\n\ndue process violation. See DeShaney v. Winnebago County Department of Social\n\nServices, 489 U.S. 189, 196 (1989). Turner seeks to avoid that rule by invoking the state-\n\ncreated danger exception, under which state actors may be liable for failing to protect\n\ninjured parties from dangers which the state actors either created or enhanced. See\n\nPinder v. Johnson, 54 F.3d 1169, 1176 (4th Cir. 1995). But it was not clearly established\n\nat the time of the rally that failing to intervene in violence among the protesters would\n\nviolate any particular protester’s due process rights. Accordingly, we agree with the\n\ndistrict court that Thomas and Flaherty are entitled to qualified immunity, and we affirm\n\nthe dismissal of Turner’s complaint.\n\n Qualified immunity shields state actors from liability under § 1983 liability when\n\ntheir “conduct does not violate clearly established statutory or constitutional rights of\n\nwhich a reasonable person would have known.” Wiley v. Doory, 14 F.3d 993, 995 (4th\n\nCir. 1994) (quoting Harlow v. Fitzgerald, 457 US. 800, 818 (1982)). To determine\n\nwhether a defendant is entitled to qualified immunity, we ask two questions: (1) Has the\n\nplaintiff alleged a violation of a federal right? (2) Was the right at issue clearly\n\nestablished at the time of the alleged violation? Pearson v. Callahan, 555 U.S. 223, 236\n\n(2009). We may decide, on a case-by-case basis, which question to answer first. Id. If\n\nthe answer to either question is “no,” then the defendant is entitled to qualified immunity.\n\n\n 6\n\f In this case, we begin by asking whether the right asserted by Turner was clearly\n\nestablished at the time of its alleged violation. To determine whether a right was clearly\n\nestablished, we typically ask whether, when the defendant violated the right, there existed\n\neither controlling authority—such as a published opinion of this Court—or a “robust\n\nconsensus of persuasive authority,” Booker v. S.C. Dept of Corr., 855 F.3d 533, 544 (4th\n\nCir. 2017) (internal quotation marks omitted), that would have given the defendants “fair\n\nwarning that their conduct was wrongful.” Williamson v. Stirling, 912 F.3d 154, 187 (4th\n\nCir. 2018) (internal quotation marks omitted). Thus, we must determine whether, at the\n\ntime of the rally, there existed legal authority giving Thomas and Flaherty fair warning\n\nthat ordering officers not to intervene in violence among protesters would implicate the\n\nstate-created danger doctrine and amount to a violation of protesters’ due process rights.\n\n As our starting point, we turn to DeShaney v. Winnebago County, 489 U.S. at 196.\n\nThere, the Supreme Court stated that because the Fourteenth Amendment was intended to\n\nprotect “the people from the State, not to ensure that the State protected them from each\n\nother . . . [a]s a general matter . . . a State’s failure to protect an individual against private\n\nviolence simply does not constitute a violation of the Due Process Clause.” Id. at 196–\n\n97. Given that “the Due Process Clause does not require the State to provide its citizens\n\nwith particular protective services,” wrote the Court, “it follows that the State cannot be\n\nheld liable for injuries that could have been averted had it chosen to provide them.” Id. at\n\n196–97.\n\n There are two exceptions to the rule laid out in DeShaney. The first arises when\n\nthe individual and the state have a “special relationship,” such as a custodial relationship,\n\n\n 7\n\fthat gives rise to an affirmative duty to protect. See id. at 199–200 (“It is the State’s\n\naffirmative act of restraining the individual’s freedom to act on his own behalf . . . which\n\nis the ‘deprivation of liberty’ triggering the protections of the Due Process Clause, not its\n\nfailure to act to protect his liberty interests against harms inflicted by other means.”).\n\nTurner does not claim that the “special relationship” exception applies in this case.\n\n The second, which DeShaney implicitly recognized and which Turner relies upon\n\nhere, is known as the state-created danger doctrine. See id. at 201 (“While the State may\n\nhave been aware of the dangers that [the child] faced . . . it played no part in their\n\ncreation, nor did it do anything to render him any more vulnerable to them.”). Under this\n\ndoctrine, a state actor may be held liable for harm resulting from “affirmative actions”\n\nthat created or enhanced the dangerous conditions that produced the plaintiff’s injury.\n\nSee Pinder, 54 F.3d at 1176. “[T]o establish § 1983 liability based on a state-created\n\ndanger theory, a plaintiff must show that the state actor created or increased the risk of\n\nprivate danger, and did so directly through affirmative acts, not merely through inaction\n\nor omissions.” Doe v. Rosa, 795 F.3d 429, 439 (4th Cir. 2015). “Put another way, ‘state\n\nactors may not disclaim liability when they themselves throw others to the lions,’ but that\n\ndoes not ‘entitle persons who rely on promises of aid to some greater degree of protection\n\nfrom lions at large.’” Id. (quoting Pinder, 54 F.3d at 1177).\n\n As we recognized in Pinder, the state-created danger doctrine is narrowly drawn,\n\nand the bar for what constitutes an “affirmative act” is high. 54 F.3d at 1175. In that\n\ncase, plaintiff Pinder called the police on her former boyfriend, Pittman, who had broken\n\ninto her home, assaulted her, and threatened to kill her and her three children. Id. at\n\n\n 8\n\f1172. After Pittman was arrested, Pinder asked the investigating officer if it would be\n\nsafe for her to return to work that evening and leave her children at home. Id. The\n\nofficer assured her that Pittman would be detained overnight on assault charges and could\n\nnot be released until the county commissioner became available for a hearing the\n\nfollowing morning. Id. However, instead of the assault charge, the officer filed lesser\n\ncharges against Pittman, and he was released from custody that night. Id. Pittman then\n\nreturned to Pinder’s home after she left for work and set fire to it, killing her three\n\nchildren who were sleeping inside. Id.\n\n Pinder brought a due process claim against the officer who had assured her that\n\nPittman would be detained overnight, seeking to invoke the state-created danger doctrine.\n\nId. at 1175. We rejected this application of the doctrine, however, holding that the officer\n\ndid not create the danger that resulted in the children’s death, but “simply failed to\n\nprovide adequate protection from it.” Id. “It cannot be,” we noted, “that the state\n\n‘commits an affirmative act’ or ‘creates a danger’ every time it does anything that makes\n\ninjury at the hands of a third party more likely.” Id. (internal quotation marks omitted).\n\nWe acknowledged that “[a]t some point on the spectrum between action and inaction, the\n\nstate’s conduct may implicate it in the harm caused,” but we concluded that “no such\n\npoint [was] reached” in Pinder’s case. Id.; see also id. at 1176 n.* (observing that\n\nalthough “inaction can often be artfully recharacterized as ‘action,’ courts should resist\n\nthe temptation to inject this alternate framework into omission cases by stretching the\n\nconcept of ‘affirmative acts’ beyond the context of immediate interactions between the\n\nofficer and the [victim]”).\n\n\n 9\n\f Following Pinder’s narrow reading of the state-created danger doctrine, we have\n\nnever issued a published opinion recognizing a successful state-created danger claim.\n\nRather, our precedent on the issue has emphasized the doctrine’s limited reach and the\n\nexactingness of the affirmative-conduct standard. For instance, in Doe v. Rosa, we held\n\nthat the state-created danger doctrine did not apply when a college president, Rosa, failed\n\nto intervene after learning that a counselor at the college’s summer camp sexually abused\n\ncampers for several years. 795 F.3d at 431. One of the counselor’s victims and the\n\nvictim’s family (the “Does”) brought suit, claiming that Rosa not only failed to report the\n\nabuse, but also actively took steps to conceal it. Id. For example, the Does alleged that\n\nRosa omitted abuse allegations from relevant records and purposefully obfuscated the\n\nnature of the Does’ complaint to college officials. Id. at 434–35. We held that the Does’\n\nclaims did not describe the “affirmative actions” necessary to implicate the state-created\n\ndanger doctrine. Id. at 441 (“No amount of semantics can disguise the fact that the real\n\n‘affirmative act’ here was committed by [the counselor] not by Rosa.”). We noted that\n\nthe Does’ claims “lack[ed] the nexus necessary for any of Rosa’s alleged conduct to be\n\n‘affirmative acts’” that created or enhanced the danger to the Does, specifically, because\n\nRosa “did not meet or speak with the Does, and by all accounts, was not even aware\n\n[they] existed.” Id.\n\n Against this background, we conclude that it was not clearly established at the\n\ntime of the rally that ordering officers not to intervene in private violence between\n\nprotesters was an affirmative act within the meaning of the state-created danger doctrine.\n\nOur precedent sets an exactingly high bar for what constitutes affirmative conduct\n\n\n 10\n\fsufficient to invoke the state-created danger doctrine. Turner has put forth no facts\n\nsuggesting that a stand-down order crosses the line from inaction to action when the state\n\nconduct in Pinder and Doe did not. Acting under Pinder’s teaching that state actors may\n\nnot be held liable for “st[anding] by and d[oing] nothing when suspicious circumstances\n\ndictated a more active role for them,” Thomas and Flaherty could have reasonably\n\nconcluded that a stand-down order violated no constitutional right. 54 F.3d at 1175.\n\nAccordingly, Turner has not alleged a violation of clearly established law, and Thomas\n\nand Flaherty are entitled to qualified immunity. 2\n\n\n\n IV.\n\n For the foregoing reasons, the judgment of the district court is\n\n AFFIRMED.\n\n\n\n\n2\n Turner argues that in assessing the merits of his substantive due process claim, we\nshould ask whether Thomas and Flaherty acted with deliberate indifference to Turner’s\nsafety. But as we have stated, “apart from situations involving custody, the Supreme\nCourt has never applied a ‘deliberate indifference’ standard merely because the State\ncreated a danger that resulted in harm.” Slaughter v. Mayor & City Council of Baltimore,\n682 F.3d 317, 321 (4th Cir. 2013); see also Waybright, 528 F.3d 199, 205 (4th Cir. 2008)\n(“For a due process challenge to executive action to succeed, the general rule is that the\naction must have been ‘intended to injure in some way unjustifiable by the government\ninterest.’”). Because there was no clearly established law imposing liability based on\ndeliberate indifference in this context, qualified immunity shields Thomas and Flaherty\nfrom such liability.\n\n\n\n 11\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Robert Sanchez TURNER, Plaintiff - Appellant, v. Al THOMAS, Jr., in His Individual Capacity and His Official Capacity as Chief of Charlottesville Police Department; City of Charlottesville, Virginia ; W. Steven Flaherty, in His Individual Capacity, Defendants - Appellees.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-07-19\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1733\\n\\n\\nROBERT SANCHEZ TURNER,\\n\\n Plaintiff - Appellant,\\n\\n v.\\n\\nAL THOMAS, JR., in his individual capacity and his official capacity as Chief of\\nCharlottesville Police Department; CITY OF CHARLOTTESVILLE, VIRGINIA;\\nW. STEVEN FLAHERTY, in his individual capacity,\\n\\n Defendants - Appellees.\\n\\n\\n\\nAppeal from the United States District Court for the Western District of Virginia, at\\nCharlottesville. Norman K. Moon, Senior, District Judge. (3:17-cv-00064-NKM-JCH)\\n\\n\\nArgued: March 21, 2019 Decided: July 19, 2019\\n\\n\\nBefore FLOYD, HARRIS, and RICHARDSON, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Floyd wrote the opinion in which Judge Harris\\nand Judge Richardson joined.\\n\\n\\nARGUED: Dallas S. LePierre, NEXUS DERECHOS HUMANOS ATTORNEYS,\\nINC., Atlanta, Georgia, for Appellant. Michelle Shane Kallen, OFFICE OF THE\\nATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia; David Patrick Corrigan,\\nHARMAN CLAYTOR CORRIGAN & WELLMAN, P.C., Glen Allen, Virginia; Richard\\nHustis Milnor, ZUNKA, MILNOR & CARTER LTD, Charlottesville, Virginia, for\\nAppellees. ON BRIEF: Mario B. Williams, NEXUS DERECHOS HUMANOS\\n\\fATTORNEYS, INC., Atlanta, Georgia, for Appellants. Mark R. Herring, Attorney\\nGeneral, Samuel T. Towell, Deputy Attorney General, Erin McNeill, Assistant Attorney\\nGeneral, Toby J. Heytens, Solicitor General, Matthew R. McGuire, Principal Deputy\\nSolicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,\\nRichmond, Virginia, for Appellee W. Steven Flaherty. Jeremy D. Capps, Douglas E.\\nPittman, HARMAN CLAYTOR CORRIGAN & WELLMAN, P.C., Glen Allen,\\nVirginia, for Appellee Al Thomas, Jr.\\n\\n\\n\\n\\n 2\\n\\fFLOYD, Circuit Judge:\\n\\n Appellant Robert Sanchez Turner was attacked by protesters at the “Unite the\\n\\nRight” rally on August 12, 2017 in Charlottesville, Virginia. Turner claims that, pursuant\\n\\nto a stand-down order under which police officers at the rally were instructed not to\\n\\nintervene in violence among protesters, officers watched his attack and did nothing to\\n\\nhelp. Turner brought suit against Al Thomas Jr., former Chief of the Charlottesville\\n\\nPolice Department; W. Stephen Flaherty, Virginia State Police Superintendent; and the\\n\\nCity of Charlottesville. The district court concluded that Thomas and Flaherty were\\n\\nentitled to qualified immunity and dismissed Turner’s complaint for failure to state a\\n\\nclaim. We agree with the district court that the facts alleged in Turner’s complaint do not\\n\\namount to a violation of clearly established law. Accordingly, we affirm.\\n\\n\\n I.\\n\\n Because Turner’s claim was dismissed on the pleadings, we take as true all well-\\n\\npleaded allegations in the complaint. See Nemet Chevrolet, Ltd. v. Consumeraffairs.com,\\n\\nInc., 591 F.3d 250, 253 (4th Cir. 2009). On August 12, 2017, the “Unite the Right” rally\\n\\nwas held in Charlottesville’s Emancipation Park to protest the City’s decision to change\\n\\nthe Park’s name from “Lee Park” and remove a Confederate monument from its grounds.\\n\\nJason Kessler, leader of the far-right advocacy group “Unity & Security for America,”\\n\\nled efforts to organize the rally.\\n\\n The City granted Kessler a permit to hold the rally and informed him that heavy\\n\\npolice presence and security would be provided. But less than a week before the event,\\n\\n\\n\\n 3\\n\\fciting traffic and safety concerns, the City revoked the permit. Kessler challenged the\\n\\nrevocation in the Western District of Virginia on First and Fourteenth Amendment\\n\\ngrounds, and the district court reinstated the permit. According to Turner, Thomas and\\n\\nFlaherty were “enraged” by the decision to reinstate the permit. J.A. 24. In response,\\n\\nthey enacted a stand-down order under which officers on duty at the rally would “refrain\\n\\nfrom intervening in any violent confrontations between white supremacists and counter-\\n\\nprotesters unless given a direct command to do so.” J.A. 25. Turner alleges that officers\\n\\ntold protesters at the rally about the stand-down order. For example, when demonstrators\\n\\nasked if police planned to respond to violent attacks, at least one officer responded by\\n\\nsaying “that’s not my job.” J.A. 26.\\n\\n Turner attended the rally as a counter-protester. He alleges that while he\\n\\ndemonstrated peacefully on the sidewalk adjacent to the Park, “KKK\\n\\nmembers/sympathizers” exited the Park and began to engage with counter-protesters.\\n\\nJ.A. 27–28. According to Turner, the “KKK members/sympathizers” attacked him for\\n\\nmore than thirty seconds, spraying his eyes with mace, beating him with a stick, and\\n\\nthrowing bottles of urine at him, all while police looked on and did nothing. J.A. 26.\\n\\nTurner alleges that despite a warning from the Department of Homeland Security that the\\n\\nrally could turn violent, police did not wear riot gear to patrol the rally. Approximately\\n\\nfive hours after the rally began, officers changed into riot gear and began to clear the\\n\\nPark, though at that point Turner had already been attacked.\\n\\n Turner brought suit under 42 U.S.C. § 1983. In relevant part, Turner sought to\\n\\nhold Thomas and Flaherty directly liable for violation of his substantive due process\\n\\n\\n 4\\n\\frights based on the police department’s failure to protect him from violent protesters at\\n\\nthe rally. 1\\n\\n\\n\\n II.\\n\\n We review de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6),\\n\\naccepting all well-pleaded facts as true and drawing all reasonable inferences in favor of\\n\\nthe plaintiff. See Nemet Chevrolet, 591 F.3d at 253. However, we “need not accept legal\\n\\nconclusions couched as facts or unwarranted inferences, unreasonable conclusions, or\\n\\narguments.” Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (internal\\n\\nquotation marks omitted). The complaint must provide “sufficient factual matter,\\n\\naccepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,\\n\\n556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570\\n\\n(2007)).\\n\\n\\n\\n\\n1\\n Additionally, Turner’s complaint sought to hold Thomas and Flaherty liable under a\\ntheory of supervisory liability and the City of Charlottesville liable under Monell v.\\nDepartment of Social Services of the City of New York, 436 U.S. 658 (1978). We need\\nnot address the supervisory-liability claim separately, because Turner has not argued that\\nthe qualified-immunity analysis should proceed any differently for that claim. We also\\nfind that Turner has waived his claim against the City of Charlottesville. At a hearing\\nbefore the district court, Turner said he had “dropped” this claim. J.A. 178. Then, in his\\nopening brief on appeal, Turner appeared to focus entirely on the qualified-immunity\\nissue, which does not apply to the City. In response, the City argued that this claim had\\nbeen waived; Turner declined to address the waiver argument in his reply, which did not\\neven mention his claim against City. It was not until oral argument that Turner sought to\\npreserve this claim. We conclude that Turner’s inattention to this claim on appeal,\\ncombined with his express statement to the district court, effectively waived it.\\nTherefore, we do not address it.\\n\\n\\n 5\\n\\f III.\\n\\n Before us is Turner’s claim that Thomas and Flaherty violated his substantive due\\n\\nprocess rights by ordering officers at the rally not to intervene in violence among\\n\\nprotesters. In general, a defendant’s mere failure to act does not give rise to liability for a\\n\\ndue process violation. See DeShaney v. Winnebago County Department of Social\\n\\nServices, 489 U.S. 189, 196 (1989). Turner seeks to avoid that rule by invoking the state-\\n\\ncreated danger exception, under which state actors may be liable for failing to protect\\n\\ninjured parties from dangers which the state actors either created or enhanced. See\\n\\nPinder v. Johnson, 54 F.3d 1169, 1176 (4th Cir. 1995). But it was not clearly established\\n\\nat the time of the rally that failing to intervene in violence among the protesters would\\n\\nviolate any particular protester’s due process rights. Accordingly, we agree with the\\n\\ndistrict court that Thomas and Flaherty are entitled to qualified immunity, and we affirm\\n\\nthe dismissal of Turner’s complaint.\\n\\n Qualified immunity shields state actors from liability under § 1983 liability when\\n\\ntheir “conduct does not violate clearly established statutory or constitutional rights of\\n\\nwhich a reasonable person would have known.” Wiley v. Doory, 14 F.3d 993, 995 (4th\\n\\nCir. 1994) (quoting Harlow v. Fitzgerald, 457 US. 800, 818 (1982)). To determine\\n\\nwhether a defendant is entitled to qualified immunity, we ask two questions: (1) Has the\\n\\nplaintiff alleged a violation of a federal right? (2) Was the right at issue clearly\\n\\nestablished at the time of the alleged violation? Pearson v. Callahan, 555 U.S. 223, 236\\n\\n(2009). We may decide, on a case-by-case basis, which question to answer first. Id. If\\n\\nthe answer to either question is “no,” then the defendant is entitled to qualified immunity.\\n\\n\\n 6\\n\\f In this case, we begin by asking whether the right asserted by Turner was clearly\\n\\nestablished at the time of its alleged violation. To determine whether a right was clearly\\n\\nestablished, we typically ask whether, when the defendant violated the right, there existed\\n\\neither controlling authority—such as a published opinion of this Court—or a “robust\\n\\nconsensus of persuasive authority,” Booker v. S.C. Dept of Corr., 855 F.3d 533, 544 (4th\\n\\nCir. 2017) (internal quotation marks omitted), that would have given the defendants “fair\\n\\nwarning that their conduct was wrongful.” Williamson v. Stirling, 912 F.3d 154, 187 (4th\\n\\nCir. 2018) (internal quotation marks omitted). Thus, we must determine whether, at the\\n\\ntime of the rally, there existed legal authority giving Thomas and Flaherty fair warning\\n\\nthat ordering officers not to intervene in violence among protesters would implicate the\\n\\nstate-created danger doctrine and amount to a violation of protesters’ due process rights.\\n\\n As our starting point, we turn to DeShaney v. Winnebago County, 489 U.S. at 196.\\n\\nThere, the Supreme Court stated that because the Fourteenth Amendment was intended to\\n\\nprotect “the people from the State, not to ensure that the State protected them from each\\n\\nother . . . [a]s a general matter . . . a State’s failure to protect an individual against private\\n\\nviolence simply does not constitute a violation of the Due Process Clause.” Id. at 196–\\n\\n97. Given that “the Due Process Clause does not require the State to provide its citizens\\n\\nwith particular protective services,” wrote the Court, “it follows that the State cannot be\\n\\nheld liable for injuries that could have been averted had it chosen to provide them.” Id. at\\n\\n196–97.\\n\\n There are two exceptions to the rule laid out in DeShaney. The first arises when\\n\\nthe individual and the state have a “special relationship,” such as a custodial relationship,\\n\\n\\n 7\\n\\fthat gives rise to an affirmative duty to protect. See id. at 199–200 (“It is the State’s\\n\\naffirmative act of restraining the individual’s freedom to act on his own behalf . . . which\\n\\nis the ‘deprivation of liberty’ triggering the protections of the Due Process Clause, not its\\n\\nfailure to act to protect his liberty interests against harms inflicted by other means.”).\\n\\nTurner does not claim that the “special relationship” exception applies in this case.\\n\\n The second, which DeShaney implicitly recognized and which Turner relies upon\\n\\nhere, is known as the state-created danger doctrine. See id. at 201 (“While the State may\\n\\nhave been aware of the dangers that [the child] faced . . . it played no part in their\\n\\ncreation, nor did it do anything to render him any more vulnerable to them.”). Under this\\n\\ndoctrine, a state actor may be held liable for harm resulting from “affirmative actions”\\n\\nthat created or enhanced the dangerous conditions that produced the plaintiff’s injury.\\n\\nSee Pinder, 54 F.3d at 1176. “[T]o establish § 1983 liability based on a state-created\\n\\ndanger theory, a plaintiff must show that the state actor created or increased the risk of\\n\\nprivate danger, and did so directly through affirmative acts, not merely through inaction\\n\\nor omissions.” Doe v. Rosa, 795 F.3d 429, 439 (4th Cir. 2015). “Put another way, ‘state\\n\\nactors may not disclaim liability when they themselves throw others to the lions,’ but that\\n\\ndoes not ‘entitle persons who rely on promises of aid to some greater degree of protection\\n\\nfrom lions at large.’” Id. (quoting Pinder, 54 F.3d at 1177).\\n\\n As we recognized in Pinder, the state-created danger doctrine is narrowly drawn,\\n\\nand the bar for what constitutes an “affirmative act” is high. 54 F.3d at 1175. In that\\n\\ncase, plaintiff Pinder called the police on her former boyfriend, Pittman, who had broken\\n\\ninto her home, assaulted her, and threatened to kill her and her three children. Id. at\\n\\n\\n 8\\n\\f1172. After Pittman was arrested, Pinder asked the investigating officer if it would be\\n\\nsafe for her to return to work that evening and leave her children at home. Id. The\\n\\nofficer assured her that Pittman would be detained overnight on assault charges and could\\n\\nnot be released until the county commissioner became available for a hearing the\\n\\nfollowing morning. Id. However, instead of the assault charge, the officer filed lesser\\n\\ncharges against Pittman, and he was released from custody that night. Id. Pittman then\\n\\nreturned to Pinder’s home after she left for work and set fire to it, killing her three\\n\\nchildren who were sleeping inside. Id.\\n\\n Pinder brought a due process claim against the officer who had assured her that\\n\\nPittman would be detained overnight, seeking to invoke the state-created danger doctrine.\\n\\nId. at 1175. We rejected this application of the doctrine, however, holding that the officer\\n\\ndid not create the danger that resulted in the children’s death, but “simply failed to\\n\\nprovide adequate protection from it.” Id. “It cannot be,” we noted, “that the state\\n\\n‘commits an affirmative act’ or ‘creates a danger’ every time it does anything that makes\\n\\ninjury at the hands of a third party more likely.” Id. (internal quotation marks omitted).\\n\\nWe acknowledged that “[a]t some point on the spectrum between action and inaction, the\\n\\nstate’s conduct may implicate it in the harm caused,” but we concluded that “no such\\n\\npoint [was] reached” in Pinder’s case. Id.; see also id. at 1176 n.* (observing that\\n\\nalthough “inaction can often be artfully recharacterized as ‘action,’ courts should resist\\n\\nthe temptation to inject this alternate framework into omission cases by stretching the\\n\\nconcept of ‘affirmative acts’ beyond the context of immediate interactions between the\\n\\nofficer and the [victim]”).\\n\\n\\n 9\\n\\f Following Pinder’s narrow reading of the state-created danger doctrine, we have\\n\\nnever issued a published opinion recognizing a successful state-created danger claim.\\n\\nRather, our precedent on the issue has emphasized the doctrine’s limited reach and the\\n\\nexactingness of the affirmative-conduct standard. For instance, in Doe v. Rosa, we held\\n\\nthat the state-created danger doctrine did not apply when a college president, Rosa, failed\\n\\nto intervene after learning that a counselor at the college’s summer camp sexually abused\\n\\ncampers for several years. 795 F.3d at 431. One of the counselor’s victims and the\\n\\nvictim’s family (the “Does”) brought suit, claiming that Rosa not only failed to report the\\n\\nabuse, but also actively took steps to conceal it. Id. For example, the Does alleged that\\n\\nRosa omitted abuse allegations from relevant records and purposefully obfuscated the\\n\\nnature of the Does’ complaint to college officials. Id. at 434–35. We held that the Does’\\n\\nclaims did not describe the “affirmative actions” necessary to implicate the state-created\\n\\ndanger doctrine. Id. at 441 (“No amount of semantics can disguise the fact that the real\\n\\n‘affirmative act’ here was committed by [the counselor] not by Rosa.”). We noted that\\n\\nthe Does’ claims “lack[ed] the nexus necessary for any of Rosa’s alleged conduct to be\\n\\n‘affirmative acts’” that created or enhanced the danger to the Does, specifically, because\\n\\nRosa “did not meet or speak with the Does, and by all accounts, was not even aware\\n\\n[they] existed.” Id.\\n\\n Against this background, we conclude that it was not clearly established at the\\n\\ntime of the rally that ordering officers not to intervene in private violence between\\n\\nprotesters was an affirmative act within the meaning of the state-created danger doctrine.\\n\\nOur precedent sets an exactingly high bar for what constitutes affirmative conduct\\n\\n\\n 10\\n\\fsufficient to invoke the state-created danger doctrine. Turner has put forth no facts\\n\\nsuggesting that a stand-down order crosses the line from inaction to action when the state\\n\\nconduct in Pinder and Doe did not. Acting under Pinder’s teaching that state actors may\\n\\nnot be held liable for “st[anding] by and d[oing] nothing when suspicious circumstances\\n\\ndictated a more active role for them,” Thomas and Flaherty could have reasonably\\n\\nconcluded that a stand-down order violated no constitutional right. 54 F.3d at 1175.\\n\\nAccordingly, Turner has not alleged a violation of clearly established law, and Thomas\\n\\nand Flaherty are entitled to qualified immunity. 2\\n\\n\\n\\n IV.\\n\\n For the foregoing reasons, the judgment of the district court is\\n\\n AFFIRMED.\\n\\n\\n\\n\\n2\\n Turner argues that in assessing the merits of his substantive due process claim, we\\nshould ask whether Thomas and Flaherty acted with deliberate indifference to Turner’s\\nsafety. But as we have stated, “apart from situations involving custody, the Supreme\\nCourt has never applied a ‘deliberate indifference’ standard merely because the State\\ncreated a danger that resulted in harm.” Slaughter v. Mayor & City Council of Baltimore,\\n682 F.3d 317, 321 (4th Cir. 2013); see also Waybright, 528 F.3d 199, 205 (4th Cir. 2008)\\n(“For a due process challenge to executive action to succeed, the general rule is that the\\naction must have been ‘intended to injure in some way unjustifiable by the government\\ninterest.’”). Because there was no clearly established law imposing liability based on\\ndeliberate indifference in this context, qualified immunity shields Thomas and Flaherty\\nfrom such liability.\\n\\n\\n\\n 11\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2953,"cells":{"id":{"kind":"number","value":4641300,"string":"4,641,300"},"name":{"kind":"string","value":"Melvin Josue Rodriguez CABRERA, Petitioner, v. William P. BARR, Attorney General, Respondent."},"name_abbreviation":{"kind":"string","value":"Melvin Rodriguez Cabrera v. William Barr"},"decision_date":{"kind":"string","value":"2019-07-19"},"docket_number":{"kind":"string","value":"18-1314"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Motz, Agee, Harris\", \"parties\": \"\", \"opinions\": [{\"author\": \"AGEE, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1314\\n\\n\\n\\nMELVIN JOSUE RODRIGUEZ CABRERA,\\n\\n Petitioner,\\n v.\\n\\nWILLIAM P. BARR, Attorney General,\\n\\n Respondent.\\n\\n\\nOn Petition for Review of an Order of the Board of Immigration Appeals.\\n\\n\\nArgued: May 9, 2019 Decided: July 19, 2019\\n\\n\\nBefore MOTZ, AGEE and HARRIS, Circuit Judges.\\n\\n\\nPetition for review granted; vacated and remanded with instructions by published\\nopinion. Judge Agee wrote the opinion, in which Judge Motz and Judge Harris joined.\\n\\n\\nARGUED: Teresa Rubinger, GEORGETOWN UNIVERSITY LAW CENTER,\\nWashington, D.C., for Petitioner. Victoria Marie Braga, UNITED STATES\\nDEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Erica\\nHashimoto, Diretor, Anjali Parekh Prakash, Supervising Attorney, Elijah Staggers,\\nStudent Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW\\nCENTER, Washington, D.C., for Petitioner. Joseph H. Hunt, Assistant Attorney General,\\nCindy S. Ferrier, Assistant Director, Office of Immigration Litigation, Civil Division,\\nUNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.\\n\\fAGEE, Circuit Judge:\\n\\n Melvin Josue Rodriguez Cabrera, a native and citizen of El Salvador, became a\\n\\nlawful permanent resident of the United States in 2014. Three years later, the Department\\n\\nof Homeland Security (“DHS”) initiated removal proceedings against him based on his\\n\\n2017 Virginia conviction under Va. Code § 18.2-46.2 for participation in a criminal street\\n\\ngang. The immigration judge (“IJ”) determined that this Virginia offense did not\\n\\ncategorically constitute a crime involving moral turpitude and thus could not be a basis\\n\\nfor removing Cabrera. DHS appealed, and the Board of Immigration Appeals (“BIA”)\\n\\nissued a decision holding that a Virginia conviction for participation in a criminal street\\n\\ngang categorically constitutes a crime involving moral turpitude. The BIA reinstated\\n\\nremoval proceedings against Cabrera and remanded to the IJ for a determination on the\\n\\nother statutory requirements for removal. After the IJ determined that those other\\n\\nelements were met and ordered Cabrera’s removal, he filed a petition for review directly\\n\\nin this Court. We conclude, first, that we have jurisdiction over Cabrera’s petition\\n\\nbecause he has exhausted his administrative remedies, and second, that the Virginia\\n\\noffense of participating in criminal street gang activity is not categorically a crime\\n\\ninvolving moral turpitude. We therefore grant Cabrera’s petition for review, vacate the\\n\\norder of removal, and remand with instructions.\\n\\n\\n\\n I.\\n\\n The Virginia statute prohibiting participation in a criminal street gang states, in\\n\\nrelevant part:\\n\\n 2\\n\\f Any person who actively participates in or is a member of a criminal street\\n gang and who knowingly and willfully participates in any predicate\\n criminal act committed for the benefit of, at the direction of, or in\\n association with any criminal street gang shall be guilty of a Class 5 felony.\\n\\nVa. Code § 18.2-46.2(A). See generally Va. Code § 18.2-10(e) (authorizing punishment\\n\\nfor a Class 5 felony of “a term of imprisonment of not less than one year nor more than\\n\\n10 years”).\\n\\n In 2017, Cabrera pleaded guilty to a violation of this statute, for which he was\\n\\nsentenced to a suspended term of imprisonment of five years. Thereafter, DHS served\\n\\nCabrera with a Notice to Appear before an IJ for removal proceedings initiated under\\n\\nsection 212(a)(2)(A)(i) of the Immigration and Nationality Act (“INA”), codified at 8\\n\\nU.S.C. § 1227(a)(2)(A)(i), which authorizes the removal of an alien who has been\\n\\nconvicted for a crime involving moral turpitude committed within five years of admission\\n\\nand for which a term of imprisonment of one year or longer could be imposed. DHS\\n\\nasserted that Va. Code § 18.2-46.2’s offense is categorically a crime “involving moral\\n\\nturpitude,” which is defined as a crime that “not only violates a statute but also\\n\\nindependently violates a moral norm.” Jimenez-Cedillo v. Sessions, 885 F.3d 292, 294\\n\\n(4th Cir. 2018).\\n\\n The IJ terminated removal proceedings after concluding that Cabrera’s conviction\\n\\nwas not for a crime involving moral turpitude. DHS successfully appealed this decision to\\n\\nthe BIA, which held that when an offense is committed “in association with a gang, the\\n\\nreprehensibility of that act can no longer be viewed in isolation; its inherent moral\\n\\ncharacter is changed—and aggravated—by its gang related nature.” A.R. 21. The BIA\\n\\n\\n 3\\n\\ffurther explained that Va. Code § 18.2-46.2’s requirement that the underlying offense be\\n\\ncommitted “in association with” a gang meant, at a minimum, that the act was committed\\n\\nwith “conscious affiliation, not mere accidental correlation” to a gang, and thus ensured\\n\\nthat the act was also committed with the requisite morally reprehensible state of mind to\\n\\nconstitute a crime involving moral turpitude. A.R. 21. The BIA reinstated the proceedings\\n\\nagainst Cabrera and remanded his case to the IJ for a determination of whether Cabrera’s\\n\\nconviction satisfied the other requirements for removability under 8 U.S.C.\\n\\n§ 1227(a)(2)(A)(i).\\n\\n The IJ entered an order of removal after determining that the other statutory\\n\\nrequirements were met. That order indicates that Cabrera affirmatively waived his right\\n\\nto appeal the IJ’s decision to the BIA, making the IJ’s order a final order of removal. See\\n\\ngenerally 8 C.F.R. § 1241.1(b) (stating that an IJ’s order of removal “shall become final”\\n\\n“[u]pon waiver of appeal by the respondent”).\\n\\n Cabrera filed a timely petition for review that raised one issue: whether the BIA\\n\\nerred in determining that the gang-related offense prohibited under Va. Code § 18.2-46.2\\n\\ncategorically qualifies as a crime involving moral turpitude.\\n\\n\\n\\n II.\\n\\n Before reaching the merits of Cabrera’s petition, we must address our jurisdiction\\n\\nover this case. By statute, we have jurisdiction over final orders of removal “only if” “the\\n\\nalien has exhausted all administrative remedies available to the alien as of right.” 8\\n\\nU.S.C. § 1252(d)(1). Because Congress wrote the exhaustion requirement into the\\n\\n 4\\n\\fjurisdictional grant to the Court for the review of removal orders, the Court lacks\\n\\njurisdiction to consider petitions for review when an alien has not exhausted his\\n\\nadministrative remedies. Massis v. Mukasey, 549 F.3d 631, 638 (4th Cir. 2008) (“We\\n\\nhave previously interpreted [8 U.S.C. § 1252(d)(1)] as a jurisdictional bar.”); cf. Kporlor\\n\\nv. Holder, 597 F.3d 222, 226–27 (4th Cir. 2010) (“The exhaustion doctrine embodies a\\n\\npolicy of respect for administrative agencies, which allows them to carry out their\\n\\nresponsibilities and to discover and correct their own errors.”). That said, no statute\\n\\ndefines what constitutes “exhaustion” for purposes of § 1252(d)(1).\\n\\n Our case law informs the analysis of when administrative exhaustion has occurred,\\n\\nbut the precise question raised in this case is an issue of first impression in this Circuit:\\n\\nwas Cabrera required to appeal the IJ’s order of removal to the BIA before filing his\\n\\npetition for review with this Court in order to exhaust his administrative remedies? That\\n\\nquestion is presented within the additional context that the sole issue raised in Cabrera’s\\n\\npetition relates to a legal question the BIA conclusively decided earlier in his removal\\n\\nproceeding.\\n\\n Ordinarily, a petitioner exhausts his administrative remedies by raising an\\n\\nargument challenging the IJ’s decision in an appeal to the BIA. E.g., Kporlor, 597 F.3d at\\n\\n226 (“It is well established that an alien must raise each argument to the BIA before we\\n\\nhave jurisdiction to consider it.”). Consequently, arguments that a petitioner did not raise\\n\\nin the BIA proceedings have not been exhausted and the Court lacks jurisdiction to\\n\\nconsider them. Asika v. Ashcroft, 362 F.3d 264, 267 n.3 (4th Cir. 2004) (“We have no\\n\\njurisdiction to consider this argument, however, because [the petitioner] failed to make it\\n\\n 5\\n\\fbefore the [BIA] and, therefore, failed to exhaust all administrative remedies.”). Only\\n\\nafter the BIA has rendered a decision on an argument or claim is that argument or claim\\n\\nsaid to have been exhausted. See Lizama v. Holder, 629 F.3d 440, 448–49 (4th Cir. 2011)\\n\\n(holding that an alien exhausted remedies by raising a claim in his notice of appeal to the\\n\\nBIA—even if he neglects to brief the issue—if the BIA has nonetheless addressed the\\n\\nissue in its decision). In sum, we have consistently held that when the BIA has never been\\n\\npart of a petitioner’s removal proceedings we lack jurisdiction to consider the petition for\\n\\nreview and when a petition contains an argument that has never been presented to the\\n\\nBIA for consideration, we lack jurisdiction to consider it even if other arguments in the\\n\\npetition have been exhausted.\\n\\n Relying on these principles, DHS contends that Cabrera did not exhaust his\\n\\nadministrative remedies because he had the right to appeal the IJ’s removal order to the\\n\\nBIA, but he chose to waive that right. DHS argues that the BIA must first determine\\n\\nwhether Cabrera’s removal was proper before this Court can consider Cabrera’s petition\\n\\nfor review and that his decision not to appeal directly to the BIA deprived the BIA of the\\n\\nopportunity to do so. In addition, DHS asserts that the BIA’s earlier decision concerning\\n\\nCabrera’s Virginia conviction did not relieve him of his obligation to appeal the removal\\n\\norder to the BIA because there is no futility exception to the exhaustion requirement.\\n\\n Relying on the same principles, Cabrera responds that he has exhausted his\\n\\nadministrative remedies because the BIA definitively ruled in the earlier appeal that his\\n\\nVirginia conviction is for a crime involving moral turpitude and that ruling is the sole\\n\\nissue he raises in his petition for review. He observes that although this Court has not\\n\\n 6\\n\\fdecided whether administrative remedies have been exhausted in these circumstances,\\n\\nthree circuit courts of appeals have considered it and have unanimously held in favor of\\n\\nfinding exhaustion. Our sister circuits have determined that a petitioner has exhausted his\\n\\nadministrative remedies when the BIA conclusively determined the issue(s) for which a\\n\\npetitioner seeks review even though the BIA’s review occurred before a remand to the IJ\\n\\nand even though the petitioner did not appeal the IJ’s removal order to the BIA before\\n\\nfiling a petition for review directly with the court of appeals. See Shepherd v. Holder, 678\\n\\nF.3d 1171, 1176–78 (10th Cir. 2012); Popal v. Gonzales, 416 F.3d 249, 252–53 (3d Cir.\\n\\n2005); Perkovic v. I.N.S., 33 F.3d 615, 619–20 (6th Cir. 1994). 1\\n\\n\\n 1\\n DHS relies on various nuances between these cases and Cabrera’s in an effort to\\ndistinguish them. We conclude that these differences are immaterial to the exhaustion\\nanalysis and present sufficiently similar circumstances to the posture of Cabrera’s case to\\nbe analogous and persuasive. We need not recount the underlying facts at length given\\nthat this case turns on the underlying legal principles.\\n\\n Briefly, though, in Shepherd, the IJ had initially dismissed the removal\\nproceedings against the petitioner based on collateral estoppel, the government\\nsuccessfully “appealed to the BIA, which reversed the IJ’s collateral estoppel ruling,” and\\n“remanded for further proceedings and the entry of a new decision.” 678 F.3d at 1176.\\nThe IJ then entered a final order of removal and the petitioner filed her petition for review\\nwithout first appealing that decision to the BIA. Id. The Tenth Circuit held that she had\\nexhausted her administrative remedies to challenge the collateral estoppel issue in federal\\ncourt because “exhaustion does not require repeated presentations of issues already\\nfinally resolved” and two circuit courts had also “disavow[ed] the need for redundant\\nappeals to the BIA.” Id. at 1178.\\n\\n In Popal, the IJ had initially terminated removal proceedings against the petitioner\\nafter concluding that the state offense relied on to initiate the proceedings did not qualify\\nas a crime of violence. 416 F.3d at 251. “DHS appealed [that decision] to the BIA, which\\nreversed,” and held that the petitioner was eligible for removal. Id. The BIA then\\nremanded “to allow [the petitioner] to apply for any relief from removal for which he\\nmay be eligible.” Id. The petitioner declined the opportunity to apply for any other relief,\\n(Continued)\\n 7\\n\\f We agree with Cabrera—and our sister circuits—that a petitioner has exhausted\\n\\nhis administrative remedies when the BIA has issued a definitive ruling on the issue\\n\\nraised in the petition for review, even though the BIA ruling came before the IJ’s entry of\\n\\nan order of removal and even though the petitioner did not appeal that order to the BIA\\n\\nbefore filing the petition for review. This conclusion follows from applying several\\n\\nprinciples related to the exhaustion requirement.\\n\\n First, the exhaustion requirement “serves the twin purposes of protecting\\n\\nadministrative agency authority and promoting judicial efficiency.” Kurfees v. I.N.S., 275\\n\\nF.3d 332, 336 (4th Cir. 2001); accord Kporlor, 597 F.3d at 226–27. Both objectives are\\n\\n\\nthe IJ ordered the petitioner removed, and the petitioner filed his petition for review\\nwithout appealing the removal order to the BIA first. Id. The Third Circuit held that the\\npetitioner exhausted his administrative remedies because the IJ’s decision “made no new\\nfindings of fact or conclusions of law, and considered no issues that had not been decided\\nby the BIA,” and instead simply “implemented the BIA’s decision.” Id. at 253. The court\\nobserved that “the purposes of exhaustion would [not] be served by a further appeal to\\nthe BIA” given that “[t]here are no factual allegations or legal arguments before us that\\nwere not raised before the BIA.” Id.\\n\\n In Perkovic, the IJ had initially determined “that the petitioners should be granted\\nasylum,” and “INS appealed the decision” to the BIA, which “reversed the [IJ’s] decision\\nand remanded the case” after determining that they were ineligible for asylum. 33 F.3d at\\n618. The IJ then entered a final order of removal after allowing the petitioners to select\\ntheir destination country and granting voluntary departure, which the petitioners appealed\\nto the Sixth Circuit without first seeking the BIA’s review. Id. at 618–19. The Sixth\\nCircuit held that the petitioners had exhausted their administrative remedies as to their\\neligibility for asylum “because [that issue was] presented to the immigration judge and\\nthen to the Board, which definitively resolved the claims on their merits.” Id. at 619. The\\ncourt further observed that it would be “pointless to interpret the exhaustion rule as\\nrequiring that . . . uncontested matters be presented to the Board before” the final removal\\norder “can be considered by this court.” Id. at 620.\\n\\n\\n\\n\\n 8\\n\\fserved when, as is the case before us, the BIA has exercised its authority by issuing a\\n\\nconclusive ruling on a particular issue in the petitioner’s agency proceedings and the\\n\\nCourt knows the agency’s final adjudication of the issue in the petitioner’s case.\\n\\nConversely, none of the traditional principles favoring exhaustion would be served by\\n\\nrequiring a second appeal to the BIA after the IJ’s final entry of the removal order when\\n\\nthe petitioner does not challenge the decisions made in that order. See Popal, 416 F.3d at\\n\\n253 (“The issues have been fairly presented to, and fully adjudicated by, the BIA. There\\n\\nare no factual allegations or legal arguments before us that were not raised before the\\n\\nBIA. Judicial economy would not be served by requiring [the petitioner] to take a second,\\n\\nessentially frivolous appeal to the BIA raising the same issues that the Board had already\\n\\nrejected in [his] own case.”).\\n\\n Second, the exhaustion requirement is consistently described in terms of substance\\n\\nrather than timing. The significant inquiry is that the BIA has definitively ruled on the\\n\\npetitioner’s argument in adjudicating his case, not when it has done so. Kporlor, 597 F.3d\\n\\nat 226 (“It is well established that an alien must raise each argument to the BIA before we\\n\\nhave jurisdiction to consider it.” (emphasis added)); see Telyatitskiy v. Holder, 628 F.3d\\n\\n628, 631 (1st Cir. 2011) (considering both the petitioner’s BIA appeal and motion to\\n\\nreconsider to determine whether the petitioner had raised the argument made in his\\n\\npetition for review and thus exhausted his administrative remedies as to that argument);\\n\\ncf. Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010) (observing that “an\\n\\nalien must present the same specific legal theory to the BIA before he or she may\\n\\n\\n\\n 9\\n\\fadvance it in [this] court”). Here, the BIA has definitively addressed the argument\\n\\nCabrera makes in his petition.\\n\\n Third, the exhaustion requirement is satisfied when the BIA has definitively\\n\\nspoken on a particular issue in the petitioner’s case one time. Petitioners need not file a\\n\\nmotion to reconsider the same argument the BIA has already rejected in order to exhaust\\n\\ntheir remedies. See Woodford v. Ngo, 548 U.S. 81, 92 (2006) (describing the exhaustion\\n\\nrequirement in the context of habeas corpus as “properly present[ing] his or her claims\\n\\nthrough one complete round of the . . . established appellate review process” (emphasis\\n\\nadded)); Shepherd, 678 F.3d at 1177; see also Parlak v. Holder, 578 F.3d 457, 463 (6th\\n\\nCir. 2009) (observing that, “as a general rule,” petitioners do not have to file a motion to\\n\\nreconsider with the BIA to exhaust administrative remedies as to an argument the BIA\\n\\nhas already rejected); Toledo-Hernandez v. Mukasey, 521 F.3d 332, 336 (5th Cir. 2008)\\n\\n(“In cases where the BIA has previously ruled on an issue, we do not hold that in order to\\n\\nexhaust their administrative remedies for purposes of invoking federal court jurisdiction\\n\\nthat petitioners must file a motion to reopen in order to have the agency reconsider the\\n\\nsame issue.”); Padilla v. Gonzales, 470 F.3d 1209, 1214 (7th Cir. 2006) (“[I]n the typical\\n\\ncase an alien will first present his arguments to the BIA, and if the BIA orders his\\n\\nremoval after considering those arguments, the alien need not ask the BIA to reconsider\\n\\nits decision before he may petition a court for review.”). Requiring Cabrera to appeal the\\n\\nIJ’s removal order to the BIA as a mandatory prerequisite to challenge in the court of\\n\\nappeals the BIA’s prior decision that his conviction was for a crime involving moral\\n\\nturpitude “would [be] the functional equivalent of” requiring him to move to reconsider\\n\\n 10\\n\\fbefore filing a petition for review. Perkovic, 33 F.3d at 620. It is therefore just as\\n\\nunnecessary.\\n\\n Lastly, exercising jurisdiction under the circumstances presented in this case does\\n\\nnot—as DHS contends—amount to allowing a petitioner to avoid the exhaustion\\n\\nrequirement based on general futility. Generally speaking, a petitioner must raise his\\n\\narguments before the BIA even when he is almost assuredly not going to prevail, such as\\n\\nwhen the BIA has rejected the argument in a different case or binding precedent\\n\\nforecloses it from adopting his position. See Popal, 416 F.3d at 252–53 (“[T]he\\n\\nexhaustion requirement of 8 U.S.C. § 1252(d) is jurisdictional, and . . . there is no general\\n\\nfutility exception. Indeed, the fact that the BIA has considered and rejected the\\n\\npetitioner’s argument in another case will not normally excuse [his] failure to raise it in\\n\\nhis own appeal to the BIA. An alien must exhaust all administrative remedies available to\\n\\nhim, even if he reasonably predicts that these remedies are unlikely to do him any\\n\\ngood.”). 2 Although a limited exception for “futility” exists in other contexts where\\n\\nexhaustion of administrative remedies is required, e.g., Ham v. North Carolina, 471 F.2d\\n\\n406, 407 (4th Cir. 1973), the Supreme Court has held that such exceptions are not\\n\\nappropriately “read . . . into statutory exhaustion requirements” unless Congress has\\n\\nprovided for them, Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). See Bowles v.\\n\\nRussell, 551 U.S. 205, 214 (2007) (stating courts have “no authority to create equitable\\n\\n\\n 2\\n We have omitted any internal quotation marks, alterations, and citations here and\\nthroughout this opinion, unless otherwise noted.\\n\\n\\n 11\\n\\fexceptions to jurisdictional requirements”); Massis, 549 F.3d at 640 (declining to read a\\n\\n“miscarriage of justice” exception into § 1252(d)’s exhaustion requirement in light of\\n\\nBowles’s instruction and observing that “[s]ince Bowles, courts of appeals have declined\\n\\nto entertain equitable exceptions to section 1252(d)’s administrative exhaustion\\n\\nrequirement”). Our conclusion in this case is grounded on Cabrera having exhausted his\\n\\nadministrative remedies, not on his being excused from this requirement. The record\\n\\ndemonstrates that the BIA considered and rejected the argument Cabrera has raised in his\\n\\npetition for review in Cabrera’s own administrative proceedings. The BIA’s dispositive\\n\\nruling—not futility—is the basis for concluding we have jurisdiction over his petition for\\n\\nreview. See Popal, 416 F.3d at 253 (holding the same).\\n\\n In short, we hold that Cabrera was not required to appeal the IJ’s removal order to\\n\\nthe BIA before filing his petition for review challenging the BIA’s determination that his\\n\\nconviction was for an offense that is categorically a crime involving moral turpitude. The\\n\\nBIA definitively ruled on the argument Cabrera is now challenging in his petition before\\n\\nit remanded his removal proceedings to the IJ for other factual findings that did not\\n\\ndisturb or affect the BIA’s decision on this issue. As such, Cabrera has exhausted his\\n\\nadministrative remedies, and we have jurisdiction to consider his petition for review.\\n\\n\\n\\n III.\\n\\n Turning to the substance of the petition for review, Cabrera poses a\\n\\nstraightforward question of law: did the BIA err in holding that a conviction for violating\\n\\n\\n\\n 12\\n\\fVa. Code § 18.2-46.2 categorically qualifies as a crime involving moral turpitude for\\n\\npurposes of 8 U.S.C. § 1227(a)(2)(A)(i)?\\n\\n A.\\n\\n In resolving this issue, we defer to the BIA’s determination only to the extent that\\n\\nwe find its reasoning persuasive. This is so for two reasons: first, the Court does not defer\\n\\nto the BIA’s determination that a state statute categorically involves moral turpitude\\n\\nbecause that is a question outside the BIA’s authority and expertise. Ramirez v. Sessions,\\n\\n887 F.3d 693, 702 (4th Cir. 2018). To the extent the BIA’s decision rests on an\\n\\ninterpretation of Va. Code § 18.2-46.2, the Court’s review is de novo. See Uribe v.\\n\\nSessions, 855 F.3d 622, 625 (4th Cir. 2017). Second, because the BIA issued a one-\\n\\nmember decision in Cabrera’s case, the decision is non-precedential and “categorically\\n\\nineligible for Chevron” 3 deference. Ramirez, 887 F.3d at 702. “In the absence of Chevron\\n\\ndeference, the weight given to a BIA decision ‘hinges on the thoroughness evident in the\\n\\nBIA’s consideration, the validity of its reasoning, its consistency with earlier and later\\n\\npronouncements, and all those factors which give it the power to persuade.’” Id. at 703\\n\\n(alteration in original) (describing Skidmore 4 deference).\\n\\n Here, in issuing a non-precedential, one-member decision concluding that the\\n\\noffense punishable under Va. Code § 18.2-46.2 categorically is a crime involving moral\\n\\nturpitude, the BIA relied principally on its precedential decision, Matter of E.E.\\n\\n 3\\n Chevron, U.S.A., Inc. v. Nat’l Res. Defen. Council, Inc., 467 U.S. 837 (1984).\\n 4\\n Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).\\n\\n\\n 13\\n\\fHernandez, 26 I. & N. Dec. 397 (B.I.A. 2014). That case held that the California Penal\\n\\nCode’s enhancement for gang-related offenses transformed crimes that were not\\n\\notherwise morally turpitudinous into ones that were. A.R. 19; see also id. at 397.\\n\\nReferencing E.E. Hernandez, the BIA pointed to the “moral depravity of criminal street\\n\\ngangs” and observed that Va. Code § 18.2-46.2 “does not criminalize mere gang\\n\\nmembership, nor does it cover offenses in which the gang affiliation of the accused was\\n\\nincidental to the commission of the underlying offense.” From that premise, it concluded\\n\\nthat the combination of a “predicate criminal act” and “the aggravating circumstances\\n\\nwhich make it a gang-related violation” caused Va. Code § 18.2-46.2 to necessarily\\n\\ninvolve moral turpitude. A.R. 20–21. In addition, the BIA determined that the\\n\\nrequirement in Va. Code § 18.2-46.2 that the defendant acted, at a minimum, “in\\n\\nassociation with” a gang provided the requisite level of mental culpability to be a crime\\n\\ninvolving moral turpitude. A.R. 21–22. At its core, the BIA’s decision rested on the\\n\\npremise that acts that are not morally turpitudinous in themselves necessarily become so\\n\\n“when committed ‘in association with’ a gang by an active gang participant.” A.R. 22.\\n\\n For the reasons set out below, we conclude that the reasoning in the BIA’s\\n\\ndecision is not persuasive; therefore, we do not afford it Skidmore deference.\\n\\n B.\\n\\n “[G]enerally, a crime involves moral turpitude if it is ‘inherently base, vile, or\\n\\ndepraved and contrary to accepted rules of morality and the duties owed between persons\\n\\nor to society in general.’” Prudencio v. Holder, 669 F.3d 472, 484–85 (4th Cir. 2012).\\n\\n(quoting Matter of Olquin-Rufino, 23 I. & N. Dec. 896, 896 (B.I.A. 2006)); see also\\n\\n 14\\n\\fMohamed v. Holder, 769 F.3d 885, 888 (4th Cir. 2014) (“[W]e have noted that ‘moral\\n\\nturpitude’ refers generally to ‘conduct that shocks the public conscience as being\\n\\ninherently base, vile, or depraved.’” (quoting Medina v. United States, 259 F.3d 220, 227\\n\\n(4th Cir. 2001)). A criminal statute must require two things in order to satisfy this\\n\\ndefinition: “‘a culpable mental state and reprehensible conduct.’” Sotnikau v. Lynch, 846\\n\\nF.3d 731, 736 (4th Cir. 2017) (quoting Matter of Ortega-Lopez, 26 I. & N. Dec. 99, 100\\n\\n(B.I.A. 2013)).\\n\\n When undertaking this review, the Court uses the categorical approach, looking to\\n\\nthe elements of the crime rather than the particular circumstances of the petitioner’s\\n\\nviolation. Prudencio, 669 F.3d at 484. Under this approach, a crime does not involve\\n\\nmoral turpitude if there is a “realistic probability” that the statute of conviction could “be\\n\\napplied to reach conduct that does not involve moral turpitude.” Matter of Louissant, 24\\n\\nI. & N. Dec. 754, 757 (B.I.A. 2009). Put another way, “[i]f all permutations of the\\n\\nconduct proscribed by the elements of the offense involve moral turpitude, then the\\n\\noffense categorically qualifies as” one involving moral turpitude. Martinez v. Sessions,\\n\\n892 F.3d 655, 658 (4th Cir. 2018). 5\\n\\n\\n 5\\n In the agency proceedings, both DHS and Cabrera based their arguments on the\\ncategorical approach. On appeal, DHS contends for the first time that if the Court\\nconcludes Va. Code § 18.2-46.2 is not categorically a crime involving moral turpitude,\\nthen we should consider in the first instance whether the modified categorical approach\\nshould be used or, in the alternative, remand for the BIA to undertake that initial review.\\nDHS Br. 40–41 n.9.\\n\\n The modified categorical approach “applies in cases involving ‘divisible’\\nstatutes,” meaning statutes that “set[] out alternate elements that create multiple forms of\\n(Continued)\\n 15\\n\\f Several aspects of Va. Code § 18.2-46.2 are undisputed. It has three elements:\\n\\n First, a person must actively participate in or be a member of a criminal\\n street gang. Second, the person must knowingly and willfully participate in\\n a predicate criminal act. Third, the act must be committed for the benefit of,\\n at the direction of, or in association with the gang.\\n\\nHamilton v. Commonwealth, 688 S.E.2d 168, 177 (Va. 2010). 6 Further, the second\\n\\nelement cannot form the basis for the conclusion that the offense involves moral turpitude\\n\\nbecause, as DHS concedes, this element’s “predicate criminal act” encompasses offenses\\n\\nthat the BIA and this Court have determined are not crimes involving moral turpitude for\\n\\nimmigration purposes. DHS Br. 15; compare Parada v. Commonwealth, No. 0572-07-4,\\n\\n\\n\\nthe criminal offense and at least one form of the offense qualifies—by its elements—as\\nthe generic predicate offense.” Martinez, 892 F.3d at 659. But “[a] statute that lists\\nalternative means of committing a single offense, rather than alternative elements, is not\\ndivisible.” Id.\\n\\n The modified categorical approach cannot be used to analyze Va. Code § 18.2-\\n46.2 because the statute is not divisible. As discussed above, the statute contains three\\nelements, with two elements listing alternative means of satisfying that element. We\\ntherefore confine our analysis to whether the proscribed offense is categorically a crime\\ninvolving moral turpitude.\\n 6\\n Virginia law defines “criminal street gang” to mean\\n\\n any ongoing organization, association, or group of three or more persons,\\n whether formal or informal, (i) which has as one of its primary objectives\\n or activities the commission of one or more criminal activities; (ii) which\\n has an identifiable name or identifying sign or symbol; and (iii) whose\\n members individually or collectively have engaged in the commission of,\\n attempt to commit, conspiracy to commit, or solicitation of two or more\\n predicate criminal acts, at least one of which is an act of violence, provided\\n such acts were not part of a common act or transaction.\\n\\nVa. Code § 18.2-46.1.\\n\\n\\n 16\\n\\f2008 WL 2497334, at *1 (Va. Ct. App. June 24, 2008) (holding that Virginia’s assault\\n\\nand battery statute can be a predicate criminal act for purposes of Va. Code § 18.2-46.2),\\n\\nwith Matter of Jing Wu, 27 I. & N. Dec. 8, 10–11 (B.I.A. 2017) (holding that Virginia’s\\n\\nassault and battery statute is not a crime involving moral turpitude). As a consequence,\\n\\nfor this offense to involve moral turpitude, the conduct proscribed by the first or third\\n\\nelements of the statute must encompass moral turpitude. And because the categorical\\n\\napproach requires us to “presume that the prior conviction rested upon nothing more than\\n\\nthe least of the acts criminalized and then determine whether even those acts are\\n\\nencompassed by” the statute, we focus on “the minimum conduct criminalized by the\\n\\nstatute of conviction.” Mena v. Lynch, 820 F.3d 114, 117 (4th Cir. 2016); accord\\n\\nMartinez, 892 F.3d at 664.\\n\\n Turning to the first element of Va. Code § 18.2-46.2, the Supreme Court of\\n\\nVirginia has recognized that this element requires proof of “either membership or\\n\\nparticipation” in a criminal street gang. Hamilton, 688 S.E.2d at 177 (emphasis added);\\n\\naccord Rushing v. Commonwealth, 726 S.E.2d 333, 338 (Va. 2012) (“A defendant\\n\\ncharged with gang participation, although not an actual member of the gang, may be\\n\\nconvicted upon a showing that he participated in a gang-related crime.”). Of these two\\n\\nmeans of satisfying the element, active participation in the gang would be the lesser\\n\\nconduct. Virginia courts have held, for example, that a defendant’s choice to wear a red\\n\\nhat and shirt to a party where other Bloods wearing red clothing were also present and\\n\\nwhere the defendant told a third party dressed in red, “You’re a Blood and you don’t even\\n\\n\\n\\n 17\\n\\fknow it,” was sufficient evidence of “participation” to satisfy this element. Hamilton, 688\\n\\nS.E.2d at 177.\\n\\n Similarly, the third element—that the predicate criminal act was “committed for\\n\\nthe benefit of, at the direction of, or in association with the gang”—can be committed in\\n\\nany one of these three disjunctive ways. See Morris v. Commonwealth, 716 S.E.2d 139,\\n\\n141 (Va. Ct. App. 2011) (“[U]nder the plain language of Code § 18.2-46.2(A), the\\n\\nCommonwealth . . . was required to prove that the predicate criminal act appellant\\n\\nparticipated in with the . . . gang was committed ‘for the benefit of’ or ‘at the direction\\n\\nof’ or ‘in association with’ the . . . gang.”). Of the three, “in association with” appears to\\n\\nbe the lowest threshold for satisfying the element. Virginia courts have held that this\\n\\ncomponent of the statute requires proof only that the defendant shared an intent to\\n\\ncommit the predicate criminal act, and it “does not expressly require that the defendant\\n\\nha[d] the same, specific objective” as the gang for committing that act. Id. at 141. Thus,\\n\\nfor example, the Court of Appeals of Virginia held that sufficient evidence existed to\\n\\nshow that the defendant committed the predicate act “in association with” a gang where\\n\\nhe “associated himself with [gang] members in order to attack innocent individuals” and\\n\\n“shared the same general objective as the . . . gang members” by “join[ing] in the”\\n\\npredicate criminal act. Id. at 141–42. It rejected the defendant’s argument that the\\n\\nCommonwealth had to demonstrate that he had the same specific reason for participating\\n\\nin the attack as the participating gang members, i.e., “achieving rank within the criminal\\n\\nstreet gang.” Id. at 141.\\n\\n\\n\\n 18\\n\\f Having earlier concluded that the second element of the statute cannot provide the\\n\\nrequisite combination of “a culpable mental state and reprehensible conduct” to make Va.\\n\\nCode § 18.2-46.2 categorically qualify as a crime involving moral turpitude, we reach the\\n\\nsame conclusion as to elements one and three. Contrary to the BIA’s conclusion, the mere\\n\\nfact that an act was committed “in association with” a gang by someone who “actively\\n\\nparticipate[d] in” the gang does not necessarily involve moral turpitude. To hold\\n\\notherwise would allow a statute to be classified as involving depraved conduct based on a\\n\\ncharacteristic unrelated to that conduct, whether it be the defendant’s identity or that of\\n\\nthe individuals with whom he acted. The fact that the defendant or his associates may\\n\\nhave committed other morally depraved conduct that would satisfy the gang-related\\n\\nelements of Va. Code § 18.2-46.2 has no nexus to the predicate criminal act of conviction\\n\\nto recast it into a crime involving moral turpitude for purposes of the INA. And in\\n\\nenacting 8 U.S.C. § 1227(a)(2)(A)(i), Congress required DHS to prove just that: to be\\n\\nremovable under this provision, the alien must have been “convicted of a crime involving\\n\\nmoral turpitude.” (Emphasis added.)\\n\\n The following example illustrates our conclusion that a conviction under Va. Code\\n\\n§ 18.2-46.2 does not categorically qualify as a crime involving moral turpitude. A\\n\\npredicate criminal act under Va. Code § 18.2-46.2 includes violating Va. Code § 18.2-\\n\\n128—trespass upon church or school property. See Va. Code § 18.2-46.1 (listing a\\n\\nviolation of Va. Code § 18.2-128 among the potential predicate criminal acts for purposes\\n\\nof Va. Code § 18.2-46.2). Virginia law generally classifies that crime as a Class 3\\n\\nmisdemeanor, Va. Code § 18.2-128(A), meaning that the maximum punishment for its\\n\\n 19\\n\\fviolation is a “fine of not more than $500,” Va. Code § 18.2-11(c). No one contends that\\n\\na simple trespass upon church property is a crime involving moral turpitude. Yet, under\\n\\nthe DHS framework, if two active participants in a criminal street gang (first element:\\n\\n“actively participates in . . . a criminal street gang”) knowingly trespass upon church\\n\\nproperty (second element: knowingly participate in any predicate criminal act) to attend a\\n\\ngang meeting elsewhere (third element: the predicate criminal act was committed “for the\\n\\nbenefit of, at the direction of, or in association with the gang”), then upon conviction for\\n\\nviolating Va. Code § 18.2-46.2, those two individuals have also committed a crime\\n\\ninvolving moral turpitude under the INA. But no one can seriously contend that two gang\\n\\nparticipants trespassing on church property to get from Point A to Point B is “inherently\\n\\nbase, vile or depraved and contrary to accepted rules of morality and the duties owed\\n\\nbetween persons or to society in general.” Prudencio, 669 F.3d at 484–85 (quoting\\n\\nMatter of Olquin-Rufino, 23 I. & N. Dec. at 896). Accordingly, under the categorical\\n\\napproach, not “all permutations of the conduct proscribed by the elements of the offense\\n\\ninvolve moral turpitude.” Martinez, 892 F.3d at 658.\\n\\n At bottom, neither Va. Code § 18.2-46.2’s requirement that the defendant\\n\\nparticipated in a street gang nor its requirement that the predicate crime was committed\\n\\n“in association with” a criminal street gang ensure that a violation of the statute involves\\n\\nmoral turpitude. Moreover, beyond pointing to the evil deeds of criminal street gangs writ\\n\\nlarge, neither the BIA’s decision in this case nor its prior decision in E.E. Hernandez\\n\\nexplains why non-morally turpitudinous conduct (here, the predicate criminal act)\\n\\ntransforms into morally turpitudinous behavior simply because it was committed by or in\\n\\n 20\\n\\fassociation with gang-related individuals. As such, the BIA’s decision is not persuasive.\\n\\nAnd because 8 U.S.C. § 1227(a)(2)(A)(i) requires DHS to prove that an alien has a\\n\\nconviction for a crime involving moral turpitude in order to prove his eligibility for\\n\\nremoval, DHS fails to meet its burden of proof based on the alien having a conviction for\\n\\nviolating Va. Code § 18.2-46.2.\\n\\n We find support for our conclusion in the well-reasoned opinion of the Ninth\\n\\nCircuit in Hernandez-Gonzalez v. Holder, 778 F.3d 793 (9th Cir. 2015). 7 There, the BIA\\n\\nheld that the petitioner’s conviction for weapons possession that was “committed for the\\n\\nbenefit of, at the direction of, or in association with any criminal street gang” and “with\\n\\nthe specific intent to promote, further, or assist in any criminal conduct by gang\\n\\nmembers” categorically constituted a crime involving moral turpitude. Id. at 797–98\\n\\n(quoting Cal. Penal Code § 186.22(b)(1)). The Ninth Circuit reversed, and, with the\\n\\n\\n 7\\n Hernadez-Gonzalez also found unpersuasive the BIA’s decision in E.E.\\nHernandez. 778 F.3d at 808. When deciding Cabrera’s case, the BIA noted the conflict,\\nbut observed that it was bound by E.E. Hernandez given that it was a precedential\\ndecision of the BIA. See A.R. 19 n.1. We, of course, are not bound by either the Ninth\\nCircuit’s holding or E.E. Hernandez. Although E.E. Hernandez is a published decision by\\nthe BIA and thus afforded Chevron deference, it is afforded deference only in its\\ninterpretation of the INA, not in its interpretation of state law. See, e.g., Sijpati v. Boente,\\n848 F.3d 210, 214 (4th Cir. 2017) (stating that Chevron deference is afforded to\\nprecedential decisions of the BIA concerning the agency’s interpretation of the INA,\\nmeaning that its “interpretation of an ambiguous provision in the INA must be given\\ncontrolling weight unless that interpretation is arbitrary, capricious, or manifestly\\ncontrary to the statute” (alteration in original)). Our analysis turns on the definition of a\\ncrime involving moral turpitude, the text of Va. Code § 18.2-46.2, and Virginia case law\\ninterpreting the statute’s provisions. Many differences between California’s gang-related\\nenhancement and Va. Code § 18.2-46.2 exist and some of the Ninth Circuit’s reasoning is\\ninapplicable, but portions of its reasoning are nonetheless persuasive.\\n\\n\\n 21\\n\\fnecessary changes to the text at issue here, its explanation applies equally to the gang-\\n\\nrelated elements of Va. Code § 18.2-46.2. Like the gang-related enhancement before the\\n\\nNinth Circuit, the first and third elements of the Virginia statute “do[] not require an\\n\\nintent to injure, actual injury, or a protected class of victims. Nor does it require the use\\n\\nof any violence. Rather, the two elements of the gang enhancement” look solely to\\n\\nestablishing an association with a criminal street gang. Hernandez-Gonzalez, 778 F.3d at\\n\\n802. Similarly “[t]here is nothing in the statute that would prevent it from applying to\\n\\nrun-of-the-mill criminal conduct. Of course, all gang-related criminal conduct is, at some\\n\\nlevel, both serious and morally questionable, but not all gang-related criminal conduct\\n\\nnecessarily involves grave acts of baseness or depravity.” Id. at 802–03.\\n\\n In sum, we cannot say based on the sole fact that Va. Code § 18.2-46.2 punishes\\n\\ngang-related crimes that all convictions for violating Va. Code § 18.2-46.2 involve the\\n\\nrequisite base, vile, and morally depraved conduct so as to be crimes involving moral\\n\\nturpitude. Acknowledging this truth in no way “minimize[s] the often serious, antisocial\\n\\nand morally depraved aspects of gang-related crime[s].” Id. at 805. We recognize only\\n\\nthat not every act committed by a participant in a criminal street gang and in association\\n\\nwith a criminal street gang involves moral turpitude. Given that an individual can be\\n\\nconvicted under Va. Code § 18.2-46.2 for conduct that does not necessarily involve moral\\n\\nturpitude, it does not categorically qualify as a crime that does.\\n\\n\\n\\n\\n 22\\n\\f IV.\\n\\n For the reasons stated above, we conclude that Virginia’s statute prohibiting\\n\\nparticipation in criminal gang activity does not categorically qualify as a crime involving\\n\\nmoral turpitude for purposes of 8 U.S.C. § 1227(a)(2)(A)(i). We therefore grant the\\n\\npetition for review, vacate the IJ’s order of removal, and remand with instructions to\\n\\nterminate the removal proceedings.\\n\\n PETITION FOR REVIEW GRANTED;\\n VACATED AND REMANDED\\n WITH INSTRUCTIONS\\n\\n\\n\\n\\n 23\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4418553/\", \"author_raw\": \"AGEE, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"MOTZ"},"judge2":{"kind":"string","value":"AGEE"},"judge3":{"kind":"string","value":"HARRIS"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4641300/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Melvin Josue Rodriguez CABRERA, Petitioner, v. William P. BARR, Attorney General, Respondent.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-07-19\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1314\n\n\n\nMELVIN JOSUE RODRIGUEZ CABRERA,\n\n Petitioner,\n v.\n\nWILLIAM P. BARR, Attorney General,\n\n Respondent.\n\n\nOn Petition for Review of an Order of the Board of Immigration Appeals.\n\n\nArgued: May 9, 2019 Decided: July 19, 2019\n\n\nBefore MOTZ, AGEE and HARRIS, Circuit Judges.\n\n\nPetition for review granted; vacated and remanded with instructions by published\nopinion. Judge Agee wrote the opinion, in which Judge Motz and Judge Harris joined.\n\n\nARGUED: Teresa Rubinger, GEORGETOWN UNIVERSITY LAW CENTER,\nWashington, D.C., for Petitioner. Victoria Marie Braga, UNITED STATES\nDEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Erica\nHashimoto, Diretor, Anjali Parekh Prakash, Supervising Attorney, Elijah Staggers,\nStudent Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW\nCENTER, Washington, D.C., for Petitioner. Joseph H. Hunt, Assistant Attorney General,\nCindy S. Ferrier, Assistant Director, Office of Immigration Litigation, Civil Division,\nUNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.\n\fAGEE, Circuit Judge:\n\n Melvin Josue Rodriguez Cabrera, a native and citizen of El Salvador, became a\n\nlawful permanent resident of the United States in 2014. Three years later, the Department\n\nof Homeland Security (“DHS”) initiated removal proceedings against him based on his\n\n2017 Virginia conviction under Va. Code § 18.2-46.2 for participation in a criminal street\n\ngang. The immigration judge (“IJ”) determined that this Virginia offense did not\n\ncategorically constitute a crime involving moral turpitude and thus could not be a basis\n\nfor removing Cabrera. DHS appealed, and the Board of Immigration Appeals (“BIA”)\n\nissued a decision holding that a Virginia conviction for participation in a criminal street\n\ngang categorically constitutes a crime involving moral turpitude. The BIA reinstated\n\nremoval proceedings against Cabrera and remanded to the IJ for a determination on the\n\nother statutory requirements for removal. After the IJ determined that those other\n\nelements were met and ordered Cabrera’s removal, he filed a petition for review directly\n\nin this Court. We conclude, first, that we have jurisdiction over Cabrera’s petition\n\nbecause he has exhausted his administrative remedies, and second, that the Virginia\n\noffense of participating in criminal street gang activity is not categorically a crime\n\ninvolving moral turpitude. We therefore grant Cabrera’s petition for review, vacate the\n\norder of removal, and remand with instructions.\n\n\n\n I.\n\n The Virginia statute prohibiting participation in a criminal street gang states, in\n\nrelevant part:\n\n 2\n\f Any person who actively participates in or is a member of a criminal street\n gang and who knowingly and willfully participates in any predicate\n criminal act committed for the benefit of, at the direction of, or in\n association with any criminal street gang shall be guilty of a Class 5 felony.\n\nVa. Code § 18.2-46.2(A). See generally Va. Code § 18.2-10(e) (authorizing punishment\n\nfor a Class 5 felony of “a term of imprisonment of not less than one year nor more than\n\n10 years”).\n\n In 2017, Cabrera pleaded guilty to a violation of this statute, for which he was\n\nsentenced to a suspended term of imprisonment of five years. Thereafter, DHS served\n\nCabrera with a Notice to Appear before an IJ for removal proceedings initiated under\n\nsection 212(a)(2)(A)(i) of the Immigration and Nationality Act (“INA”), codified at 8\n\nU.S.C. § 1227(a)(2)(A)(i), which authorizes the removal of an alien who has been\n\nconvicted for a crime involving moral turpitude committed within five years of admission\n\nand for which a term of imprisonment of one year or longer could be imposed. DHS\n\nasserted that Va. Code § 18.2-46.2’s offense is categorically a crime “involving moral\n\nturpitude,” which is defined as a crime that “not only violates a statute but also\n\nindependently violates a moral norm.” Jimenez-Cedillo v. Sessions, 885 F.3d 292, 294\n\n(4th Cir. 2018).\n\n The IJ terminated removal proceedings after concluding that Cabrera’s conviction\n\nwas not for a crime involving moral turpitude. DHS successfully appealed this decision to\n\nthe BIA, which held that when an offense is committed “in association with a gang, the\n\nreprehensibility of that act can no longer be viewed in isolation; its inherent moral\n\ncharacter is changed—and aggravated—by its gang related nature.” A.R. 21. The BIA\n\n\n 3\n\ffurther explained that Va. Code § 18.2-46.2’s requirement that the underlying offense be\n\ncommitted “in association with” a gang meant, at a minimum, that the act was committed\n\nwith “conscious affiliation, not mere accidental correlation” to a gang, and thus ensured\n\nthat the act was also committed with the requisite morally reprehensible state of mind to\n\nconstitute a crime involving moral turpitude. A.R. 21. The BIA reinstated the proceedings\n\nagainst Cabrera and remanded his case to the IJ for a determination of whether Cabrera’s\n\nconviction satisfied the other requirements for removability under 8 U.S.C.\n\n§ 1227(a)(2)(A)(i).\n\n The IJ entered an order of removal after determining that the other statutory\n\nrequirements were met. That order indicates that Cabrera affirmatively waived his right\n\nto appeal the IJ’s decision to the BIA, making the IJ’s order a final order of removal. See\n\ngenerally 8 C.F.R. § 1241.1(b) (stating that an IJ’s order of removal “shall become final”\n\n“[u]pon waiver of appeal by the respondent”).\n\n Cabrera filed a timely petition for review that raised one issue: whether the BIA\n\nerred in determining that the gang-related offense prohibited under Va. Code § 18.2-46.2\n\ncategorically qualifies as a crime involving moral turpitude.\n\n\n\n II.\n\n Before reaching the merits of Cabrera’s petition, we must address our jurisdiction\n\nover this case. By statute, we have jurisdiction over final orders of removal “only if” “the\n\nalien has exhausted all administrative remedies available to the alien as of right.” 8\n\nU.S.C. § 1252(d)(1). Because Congress wrote the exhaustion requirement into the\n\n 4\n\fjurisdictional grant to the Court for the review of removal orders, the Court lacks\n\njurisdiction to consider petitions for review when an alien has not exhausted his\n\nadministrative remedies. Massis v. Mukasey, 549 F.3d 631, 638 (4th Cir. 2008) (“We\n\nhave previously interpreted [8 U.S.C. § 1252(d)(1)] as a jurisdictional bar.”); cf. Kporlor\n\nv. Holder, 597 F.3d 222, 226–27 (4th Cir. 2010) (“The exhaustion doctrine embodies a\n\npolicy of respect for administrative agencies, which allows them to carry out their\n\nresponsibilities and to discover and correct their own errors.”). That said, no statute\n\ndefines what constitutes “exhaustion” for purposes of § 1252(d)(1).\n\n Our case law informs the analysis of when administrative exhaustion has occurred,\n\nbut the precise question raised in this case is an issue of first impression in this Circuit:\n\nwas Cabrera required to appeal the IJ’s order of removal to the BIA before filing his\n\npetition for review with this Court in order to exhaust his administrative remedies? That\n\nquestion is presented within the additional context that the sole issue raised in Cabrera’s\n\npetition relates to a legal question the BIA conclusively decided earlier in his removal\n\nproceeding.\n\n Ordinarily, a petitioner exhausts his administrative remedies by raising an\n\nargument challenging the IJ’s decision in an appeal to the BIA. E.g., Kporlor, 597 F.3d at\n\n226 (“It is well established that an alien must raise each argument to the BIA before we\n\nhave jurisdiction to consider it.”). Consequently, arguments that a petitioner did not raise\n\nin the BIA proceedings have not been exhausted and the Court lacks jurisdiction to\n\nconsider them. Asika v. Ashcroft, 362 F.3d 264, 267 n.3 (4th Cir. 2004) (“We have no\n\njurisdiction to consider this argument, however, because [the petitioner] failed to make it\n\n 5\n\fbefore the [BIA] and, therefore, failed to exhaust all administrative remedies.”). Only\n\nafter the BIA has rendered a decision on an argument or claim is that argument or claim\n\nsaid to have been exhausted. See Lizama v. Holder, 629 F.3d 440, 448–49 (4th Cir. 2011)\n\n(holding that an alien exhausted remedies by raising a claim in his notice of appeal to the\n\nBIA—even if he neglects to brief the issue—if the BIA has nonetheless addressed the\n\nissue in its decision). In sum, we have consistently held that when the BIA has never been\n\npart of a petitioner’s removal proceedings we lack jurisdiction to consider the petition for\n\nreview and when a petition contains an argument that has never been presented to the\n\nBIA for consideration, we lack jurisdiction to consider it even if other arguments in the\n\npetition have been exhausted.\n\n Relying on these principles, DHS contends that Cabrera did not exhaust his\n\nadministrative remedies because he had the right to appeal the IJ’s removal order to the\n\nBIA, but he chose to waive that right. DHS argues that the BIA must first determine\n\nwhether Cabrera’s removal was proper before this Court can consider Cabrera’s petition\n\nfor review and that his decision not to appeal directly to the BIA deprived the BIA of the\n\nopportunity to do so. In addition, DHS asserts that the BIA’s earlier decision concerning\n\nCabrera’s Virginia conviction did not relieve him of his obligation to appeal the removal\n\norder to the BIA because there is no futility exception to the exhaustion requirement.\n\n Relying on the same principles, Cabrera responds that he has exhausted his\n\nadministrative remedies because the BIA definitively ruled in the earlier appeal that his\n\nVirginia conviction is for a crime involving moral turpitude and that ruling is the sole\n\nissue he raises in his petition for review. He observes that although this Court has not\n\n 6\n\fdecided whether administrative remedies have been exhausted in these circumstances,\n\nthree circuit courts of appeals have considered it and have unanimously held in favor of\n\nfinding exhaustion. Our sister circuits have determined that a petitioner has exhausted his\n\nadministrative remedies when the BIA conclusively determined the issue(s) for which a\n\npetitioner seeks review even though the BIA’s review occurred before a remand to the IJ\n\nand even though the petitioner did not appeal the IJ’s removal order to the BIA before\n\nfiling a petition for review directly with the court of appeals. See Shepherd v. Holder, 678\n\nF.3d 1171, 1176–78 (10th Cir. 2012); Popal v. Gonzales, 416 F.3d 249, 252–53 (3d Cir.\n\n2005); Perkovic v. I.N.S., 33 F.3d 615, 619–20 (6th Cir. 1994). 1\n\n\n 1\n DHS relies on various nuances between these cases and Cabrera’s in an effort to\ndistinguish them. We conclude that these differences are immaterial to the exhaustion\nanalysis and present sufficiently similar circumstances to the posture of Cabrera’s case to\nbe analogous and persuasive. We need not recount the underlying facts at length given\nthat this case turns on the underlying legal principles.\n\n Briefly, though, in Shepherd, the IJ had initially dismissed the removal\nproceedings against the petitioner based on collateral estoppel, the government\nsuccessfully “appealed to the BIA, which reversed the IJ’s collateral estoppel ruling,” and\n“remanded for further proceedings and the entry of a new decision.” 678 F.3d at 1176.\nThe IJ then entered a final order of removal and the petitioner filed her petition for review\nwithout first appealing that decision to the BIA. Id. The Tenth Circuit held that she had\nexhausted her administrative remedies to challenge the collateral estoppel issue in federal\ncourt because “exhaustion does not require repeated presentations of issues already\nfinally resolved” and two circuit courts had also “disavow[ed] the need for redundant\nappeals to the BIA.” Id. at 1178.\n\n In Popal, the IJ had initially terminated removal proceedings against the petitioner\nafter concluding that the state offense relied on to initiate the proceedings did not qualify\nas a crime of violence. 416 F.3d at 251. “DHS appealed [that decision] to the BIA, which\nreversed,” and held that the petitioner was eligible for removal. Id. The BIA then\nremanded “to allow [the petitioner] to apply for any relief from removal for which he\nmay be eligible.” Id. The petitioner declined the opportunity to apply for any other relief,\n(Continued)\n 7\n\f We agree with Cabrera—and our sister circuits—that a petitioner has exhausted\n\nhis administrative remedies when the BIA has issued a definitive ruling on the issue\n\nraised in the petition for review, even though the BIA ruling came before the IJ’s entry of\n\nan order of removal and even though the petitioner did not appeal that order to the BIA\n\nbefore filing the petition for review. This conclusion follows from applying several\n\nprinciples related to the exhaustion requirement.\n\n First, the exhaustion requirement “serves the twin purposes of protecting\n\nadministrative agency authority and promoting judicial efficiency.” Kurfees v. I.N.S., 275\n\nF.3d 332, 336 (4th Cir. 2001); accord Kporlor, 597 F.3d at 226–27. Both objectives are\n\n\nthe IJ ordered the petitioner removed, and the petitioner filed his petition for review\nwithout appealing the removal order to the BIA first. Id. The Third Circuit held that the\npetitioner exhausted his administrative remedies because the IJ’s decision “made no new\nfindings of fact or conclusions of law, and considered no issues that had not been decided\nby the BIA,” and instead simply “implemented the BIA’s decision.” Id. at 253. The court\nobserved that “the purposes of exhaustion would [not] be served by a further appeal to\nthe BIA” given that “[t]here are no factual allegations or legal arguments before us that\nwere not raised before the BIA.” Id.\n\n In Perkovic, the IJ had initially determined “that the petitioners should be granted\nasylum,” and “INS appealed the decision” to the BIA, which “reversed the [IJ’s] decision\nand remanded the case” after determining that they were ineligible for asylum. 33 F.3d at\n618. The IJ then entered a final order of removal after allowing the petitioners to select\ntheir destination country and granting voluntary departure, which the petitioners appealed\nto the Sixth Circuit without first seeking the BIA’s review. Id. at 618–19. The Sixth\nCircuit held that the petitioners had exhausted their administrative remedies as to their\neligibility for asylum “because [that issue was] presented to the immigration judge and\nthen to the Board, which definitively resolved the claims on their merits.” Id. at 619. The\ncourt further observed that it would be “pointless to interpret the exhaustion rule as\nrequiring that . . . uncontested matters be presented to the Board before” the final removal\norder “can be considered by this court.” Id. at 620.\n\n\n\n\n 8\n\fserved when, as is the case before us, the BIA has exercised its authority by issuing a\n\nconclusive ruling on a particular issue in the petitioner’s agency proceedings and the\n\nCourt knows the agency’s final adjudication of the issue in the petitioner’s case.\n\nConversely, none of the traditional principles favoring exhaustion would be served by\n\nrequiring a second appeal to the BIA after the IJ’s final entry of the removal order when\n\nthe petitioner does not challenge the decisions made in that order. See Popal, 416 F.3d at\n\n253 (“The issues have been fairly presented to, and fully adjudicated by, the BIA. There\n\nare no factual allegations or legal arguments before us that were not raised before the\n\nBIA. Judicial economy would not be served by requiring [the petitioner] to take a second,\n\nessentially frivolous appeal to the BIA raising the same issues that the Board had already\n\nrejected in [his] own case.”).\n\n Second, the exhaustion requirement is consistently described in terms of substance\n\nrather than timing. The significant inquiry is that the BIA has definitively ruled on the\n\npetitioner’s argument in adjudicating his case, not when it has done so. Kporlor, 597 F.3d\n\nat 226 (“It is well established that an alien must raise each argument to the BIA before we\n\nhave jurisdiction to consider it.” (emphasis added)); see Telyatitskiy v. Holder, 628 F.3d\n\n628, 631 (1st Cir. 2011) (considering both the petitioner’s BIA appeal and motion to\n\nreconsider to determine whether the petitioner had raised the argument made in his\n\npetition for review and thus exhausted his administrative remedies as to that argument);\n\ncf. Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010) (observing that “an\n\nalien must present the same specific legal theory to the BIA before he or she may\n\n\n\n 9\n\fadvance it in [this] court”). Here, the BIA has definitively addressed the argument\n\nCabrera makes in his petition.\n\n Third, the exhaustion requirement is satisfied when the BIA has definitively\n\nspoken on a particular issue in the petitioner’s case one time. Petitioners need not file a\n\nmotion to reconsider the same argument the BIA has already rejected in order to exhaust\n\ntheir remedies. See Woodford v. Ngo, 548 U.S. 81, 92 (2006) (describing the exhaustion\n\nrequirement in the context of habeas corpus as “properly present[ing] his or her claims\n\nthrough one complete round of the . . . established appellate review process” (emphasis\n\nadded)); Shepherd, 678 F.3d at 1177; see also Parlak v. Holder, 578 F.3d 457, 463 (6th\n\nCir. 2009) (observing that, “as a general rule,” petitioners do not have to file a motion to\n\nreconsider with the BIA to exhaust administrative remedies as to an argument the BIA\n\nhas already rejected); Toledo-Hernandez v. Mukasey, 521 F.3d 332, 336 (5th Cir. 2008)\n\n(“In cases where the BIA has previously ruled on an issue, we do not hold that in order to\n\nexhaust their administrative remedies for purposes of invoking federal court jurisdiction\n\nthat petitioners must file a motion to reopen in order to have the agency reconsider the\n\nsame issue.”); Padilla v. Gonzales, 470 F.3d 1209, 1214 (7th Cir. 2006) (“[I]n the typical\n\ncase an alien will first present his arguments to the BIA, and if the BIA orders his\n\nremoval after considering those arguments, the alien need not ask the BIA to reconsider\n\nits decision before he may petition a court for review.”). Requiring Cabrera to appeal the\n\nIJ’s removal order to the BIA as a mandatory prerequisite to challenge in the court of\n\nappeals the BIA’s prior decision that his conviction was for a crime involving moral\n\nturpitude “would [be] the functional equivalent of” requiring him to move to reconsider\n\n 10\n\fbefore filing a petition for review. Perkovic, 33 F.3d at 620. It is therefore just as\n\nunnecessary.\n\n Lastly, exercising jurisdiction under the circumstances presented in this case does\n\nnot—as DHS contends—amount to allowing a petitioner to avoid the exhaustion\n\nrequirement based on general futility. Generally speaking, a petitioner must raise his\n\narguments before the BIA even when he is almost assuredly not going to prevail, such as\n\nwhen the BIA has rejected the argument in a different case or binding precedent\n\nforecloses it from adopting his position. See Popal, 416 F.3d at 252–53 (“[T]he\n\nexhaustion requirement of 8 U.S.C. § 1252(d) is jurisdictional, and . . . there is no general\n\nfutility exception. Indeed, the fact that the BIA has considered and rejected the\n\npetitioner’s argument in another case will not normally excuse [his] failure to raise it in\n\nhis own appeal to the BIA. An alien must exhaust all administrative remedies available to\n\nhim, even if he reasonably predicts that these remedies are unlikely to do him any\n\ngood.”). 2 Although a limited exception for “futility” exists in other contexts where\n\nexhaustion of administrative remedies is required, e.g., Ham v. North Carolina, 471 F.2d\n\n406, 407 (4th Cir. 1973), the Supreme Court has held that such exceptions are not\n\nappropriately “read . . . into statutory exhaustion requirements” unless Congress has\n\nprovided for them, Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). See Bowles v.\n\nRussell, 551 U.S. 205, 214 (2007) (stating courts have “no authority to create equitable\n\n\n 2\n We have omitted any internal quotation marks, alterations, and citations here and\nthroughout this opinion, unless otherwise noted.\n\n\n 11\n\fexceptions to jurisdictional requirements”); Massis, 549 F.3d at 640 (declining to read a\n\n“miscarriage of justice” exception into § 1252(d)’s exhaustion requirement in light of\n\nBowles’s instruction and observing that “[s]ince Bowles, courts of appeals have declined\n\nto entertain equitable exceptions to section 1252(d)’s administrative exhaustion\n\nrequirement”). Our conclusion in this case is grounded on Cabrera having exhausted his\n\nadministrative remedies, not on his being excused from this requirement. The record\n\ndemonstrates that the BIA considered and rejected the argument Cabrera has raised in his\n\npetition for review in Cabrera’s own administrative proceedings. The BIA’s dispositive\n\nruling—not futility—is the basis for concluding we have jurisdiction over his petition for\n\nreview. See Popal, 416 F.3d at 253 (holding the same).\n\n In short, we hold that Cabrera was not required to appeal the IJ’s removal order to\n\nthe BIA before filing his petition for review challenging the BIA’s determination that his\n\nconviction was for an offense that is categorically a crime involving moral turpitude. The\n\nBIA definitively ruled on the argument Cabrera is now challenging in his petition before\n\nit remanded his removal proceedings to the IJ for other factual findings that did not\n\ndisturb or affect the BIA’s decision on this issue. As such, Cabrera has exhausted his\n\nadministrative remedies, and we have jurisdiction to consider his petition for review.\n\n\n\n III.\n\n Turning to the substance of the petition for review, Cabrera poses a\n\nstraightforward question of law: did the BIA err in holding that a conviction for violating\n\n\n\n 12\n\fVa. Code § 18.2-46.2 categorically qualifies as a crime involving moral turpitude for\n\npurposes of 8 U.S.C. § 1227(a)(2)(A)(i)?\n\n A.\n\n In resolving this issue, we defer to the BIA’s determination only to the extent that\n\nwe find its reasoning persuasive. This is so for two reasons: first, the Court does not defer\n\nto the BIA’s determination that a state statute categorically involves moral turpitude\n\nbecause that is a question outside the BIA’s authority and expertise. Ramirez v. Sessions,\n\n887 F.3d 693, 702 (4th Cir. 2018). To the extent the BIA’s decision rests on an\n\ninterpretation of Va. Code § 18.2-46.2, the Court’s review is de novo. See Uribe v.\n\nSessions, 855 F.3d 622, 625 (4th Cir. 2017). Second, because the BIA issued a one-\n\nmember decision in Cabrera’s case, the decision is non-precedential and “categorically\n\nineligible for Chevron” 3 deference. Ramirez, 887 F.3d at 702. “In the absence of Chevron\n\ndeference, the weight given to a BIA decision ‘hinges on the thoroughness evident in the\n\nBIA’s consideration, the validity of its reasoning, its consistency with earlier and later\n\npronouncements, and all those factors which give it the power to persuade.’” Id. at 703\n\n(alteration in original) (describing Skidmore 4 deference).\n\n Here, in issuing a non-precedential, one-member decision concluding that the\n\noffense punishable under Va. Code § 18.2-46.2 categorically is a crime involving moral\n\nturpitude, the BIA relied principally on its precedential decision, Matter of E.E.\n\n 3\n Chevron, U.S.A., Inc. v. Nat’l Res. Defen. Council, Inc., 467 U.S. 837 (1984).\n 4\n Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).\n\n\n 13\n\fHernandez, 26 I. & N. Dec. 397 (B.I.A. 2014). That case held that the California Penal\n\nCode’s enhancement for gang-related offenses transformed crimes that were not\n\notherwise morally turpitudinous into ones that were. A.R. 19; see also id. at 397.\n\nReferencing E.E. Hernandez, the BIA pointed to the “moral depravity of criminal street\n\ngangs” and observed that Va. Code § 18.2-46.2 “does not criminalize mere gang\n\nmembership, nor does it cover offenses in which the gang affiliation of the accused was\n\nincidental to the commission of the underlying offense.” From that premise, it concluded\n\nthat the combination of a “predicate criminal act” and “the aggravating circumstances\n\nwhich make it a gang-related violation” caused Va. Code § 18.2-46.2 to necessarily\n\ninvolve moral turpitude. A.R. 20–21. In addition, the BIA determined that the\n\nrequirement in Va. Code § 18.2-46.2 that the defendant acted, at a minimum, “in\n\nassociation with” a gang provided the requisite level of mental culpability to be a crime\n\ninvolving moral turpitude. A.R. 21–22. At its core, the BIA’s decision rested on the\n\npremise that acts that are not morally turpitudinous in themselves necessarily become so\n\n“when committed ‘in association with’ a gang by an active gang participant.” A.R. 22.\n\n For the reasons set out below, we conclude that the reasoning in the BIA’s\n\ndecision is not persuasive; therefore, we do not afford it Skidmore deference.\n\n B.\n\n “[G]enerally, a crime involves moral turpitude if it is ‘inherently base, vile, or\n\ndepraved and contrary to accepted rules of morality and the duties owed between persons\n\nor to society in general.’” Prudencio v. Holder, 669 F.3d 472, 484–85 (4th Cir. 2012).\n\n(quoting Matter of Olquin-Rufino, 23 I. & N. Dec. 896, 896 (B.I.A. 2006)); see also\n\n 14\n\fMohamed v. Holder, 769 F.3d 885, 888 (4th Cir. 2014) (“[W]e have noted that ‘moral\n\nturpitude’ refers generally to ‘conduct that shocks the public conscience as being\n\ninherently base, vile, or depraved.’” (quoting Medina v. United States, 259 F.3d 220, 227\n\n(4th Cir. 2001)). A criminal statute must require two things in order to satisfy this\n\ndefinition: “‘a culpable mental state and reprehensible conduct.’” Sotnikau v. Lynch, 846\n\nF.3d 731, 736 (4th Cir. 2017) (quoting Matter of Ortega-Lopez, 26 I. & N. Dec. 99, 100\n\n(B.I.A. 2013)).\n\n When undertaking this review, the Court uses the categorical approach, looking to\n\nthe elements of the crime rather than the particular circumstances of the petitioner’s\n\nviolation. Prudencio, 669 F.3d at 484. Under this approach, a crime does not involve\n\nmoral turpitude if there is a “realistic probability” that the statute of conviction could “be\n\napplied to reach conduct that does not involve moral turpitude.” Matter of Louissant, 24\n\nI. & N. Dec. 754, 757 (B.I.A. 2009). Put another way, “[i]f all permutations of the\n\nconduct proscribed by the elements of the offense involve moral turpitude, then the\n\noffense categorically qualifies as” one involving moral turpitude. Martinez v. Sessions,\n\n892 F.3d 655, 658 (4th Cir. 2018). 5\n\n\n 5\n In the agency proceedings, both DHS and Cabrera based their arguments on the\ncategorical approach. On appeal, DHS contends for the first time that if the Court\nconcludes Va. Code § 18.2-46.2 is not categorically a crime involving moral turpitude,\nthen we should consider in the first instance whether the modified categorical approach\nshould be used or, in the alternative, remand for the BIA to undertake that initial review.\nDHS Br. 40–41 n.9.\n\n The modified categorical approach “applies in cases involving ‘divisible’\nstatutes,” meaning statutes that “set[] out alternate elements that create multiple forms of\n(Continued)\n 15\n\f Several aspects of Va. Code § 18.2-46.2 are undisputed. It has three elements:\n\n First, a person must actively participate in or be a member of a criminal\n street gang. Second, the person must knowingly and willfully participate in\n a predicate criminal act. Third, the act must be committed for the benefit of,\n at the direction of, or in association with the gang.\n\nHamilton v. Commonwealth, 688 S.E.2d 168, 177 (Va. 2010). 6 Further, the second\n\nelement cannot form the basis for the conclusion that the offense involves moral turpitude\n\nbecause, as DHS concedes, this element’s “predicate criminal act” encompasses offenses\n\nthat the BIA and this Court have determined are not crimes involving moral turpitude for\n\nimmigration purposes. DHS Br. 15; compare Parada v. Commonwealth, No. 0572-07-4,\n\n\n\nthe criminal offense and at least one form of the offense qualifies—by its elements—as\nthe generic predicate offense.” Martinez, 892 F.3d at 659. But “[a] statute that lists\nalternative means of committing a single offense, rather than alternative elements, is not\ndivisible.” Id.\n\n The modified categorical approach cannot be used to analyze Va. Code § 18.2-\n46.2 because the statute is not divisible. As discussed above, the statute contains three\nelements, with two elements listing alternative means of satisfying that element. We\ntherefore confine our analysis to whether the proscribed offense is categorically a crime\ninvolving moral turpitude.\n 6\n Virginia law defines “criminal street gang” to mean\n\n any ongoing organization, association, or group of three or more persons,\n whether formal or informal, (i) which has as one of its primary objectives\n or activities the commission of one or more criminal activities; (ii) which\n has an identifiable name or identifying sign or symbol; and (iii) whose\n members individually or collectively have engaged in the commission of,\n attempt to commit, conspiracy to commit, or solicitation of two or more\n predicate criminal acts, at least one of which is an act of violence, provided\n such acts were not part of a common act or transaction.\n\nVa. Code § 18.2-46.1.\n\n\n 16\n\f2008 WL 2497334, at *1 (Va. Ct. App. June 24, 2008) (holding that Virginia’s assault\n\nand battery statute can be a predicate criminal act for purposes of Va. Code § 18.2-46.2),\n\nwith Matter of Jing Wu, 27 I. & N. Dec. 8, 10–11 (B.I.A. 2017) (holding that Virginia’s\n\nassault and battery statute is not a crime involving moral turpitude). As a consequence,\n\nfor this offense to involve moral turpitude, the conduct proscribed by the first or third\n\nelements of the statute must encompass moral turpitude. And because the categorical\n\napproach requires us to “presume that the prior conviction rested upon nothing more than\n\nthe least of the acts criminalized and then determine whether even those acts are\n\nencompassed by” the statute, we focus on “the minimum conduct criminalized by the\n\nstatute of conviction.” Mena v. Lynch, 820 F.3d 114, 117 (4th Cir. 2016); accord\n\nMartinez, 892 F.3d at 664.\n\n Turning to the first element of Va. Code § 18.2-46.2, the Supreme Court of\n\nVirginia has recognized that this element requires proof of “either membership or\n\nparticipation” in a criminal street gang. Hamilton, 688 S.E.2d at 177 (emphasis added);\n\naccord Rushing v. Commonwealth, 726 S.E.2d 333, 338 (Va. 2012) (“A defendant\n\ncharged with gang participation, although not an actual member of the gang, may be\n\nconvicted upon a showing that he participated in a gang-related crime.”). Of these two\n\nmeans of satisfying the element, active participation in the gang would be the lesser\n\nconduct. Virginia courts have held, for example, that a defendant’s choice to wear a red\n\nhat and shirt to a party where other Bloods wearing red clothing were also present and\n\nwhere the defendant told a third party dressed in red, “You’re a Blood and you don’t even\n\n\n\n 17\n\fknow it,” was sufficient evidence of “participation” to satisfy this element. Hamilton, 688\n\nS.E.2d at 177.\n\n Similarly, the third element—that the predicate criminal act was “committed for\n\nthe benefit of, at the direction of, or in association with the gang”—can be committed in\n\nany one of these three disjunctive ways. See Morris v. Commonwealth, 716 S.E.2d 139,\n\n141 (Va. Ct. App. 2011) (“[U]nder the plain language of Code § 18.2-46.2(A), the\n\nCommonwealth . . . was required to prove that the predicate criminal act appellant\n\nparticipated in with the . . . gang was committed ‘for the benefit of’ or ‘at the direction\n\nof’ or ‘in association with’ the . . . gang.”). Of the three, “in association with” appears to\n\nbe the lowest threshold for satisfying the element. Virginia courts have held that this\n\ncomponent of the statute requires proof only that the defendant shared an intent to\n\ncommit the predicate criminal act, and it “does not expressly require that the defendant\n\nha[d] the same, specific objective” as the gang for committing that act. Id. at 141. Thus,\n\nfor example, the Court of Appeals of Virginia held that sufficient evidence existed to\n\nshow that the defendant committed the predicate act “in association with” a gang where\n\nhe “associated himself with [gang] members in order to attack innocent individuals” and\n\n“shared the same general objective as the . . . gang members” by “join[ing] in the”\n\npredicate criminal act. Id. at 141–42. It rejected the defendant’s argument that the\n\nCommonwealth had to demonstrate that he had the same specific reason for participating\n\nin the attack as the participating gang members, i.e., “achieving rank within the criminal\n\nstreet gang.” Id. at 141.\n\n\n\n 18\n\f Having earlier concluded that the second element of the statute cannot provide the\n\nrequisite combination of “a culpable mental state and reprehensible conduct” to make Va.\n\nCode § 18.2-46.2 categorically qualify as a crime involving moral turpitude, we reach the\n\nsame conclusion as to elements one and three. Contrary to the BIA’s conclusion, the mere\n\nfact that an act was committed “in association with” a gang by someone who “actively\n\nparticipate[d] in” the gang does not necessarily involve moral turpitude. To hold\n\notherwise would allow a statute to be classified as involving depraved conduct based on a\n\ncharacteristic unrelated to that conduct, whether it be the defendant’s identity or that of\n\nthe individuals with whom he acted. The fact that the defendant or his associates may\n\nhave committed other morally depraved conduct that would satisfy the gang-related\n\nelements of Va. Code § 18.2-46.2 has no nexus to the predicate criminal act of conviction\n\nto recast it into a crime involving moral turpitude for purposes of the INA. And in\n\nenacting 8 U.S.C. § 1227(a)(2)(A)(i), Congress required DHS to prove just that: to be\n\nremovable under this provision, the alien must have been “convicted of a crime involving\n\nmoral turpitude.” (Emphasis added.)\n\n The following example illustrates our conclusion that a conviction under Va. Code\n\n§ 18.2-46.2 does not categorically qualify as a crime involving moral turpitude. A\n\npredicate criminal act under Va. Code § 18.2-46.2 includes violating Va. Code § 18.2-\n\n128—trespass upon church or school property. See Va. Code § 18.2-46.1 (listing a\n\nviolation of Va. Code § 18.2-128 among the potential predicate criminal acts for purposes\n\nof Va. Code § 18.2-46.2). Virginia law generally classifies that crime as a Class 3\n\nmisdemeanor, Va. Code § 18.2-128(A), meaning that the maximum punishment for its\n\n 19\n\fviolation is a “fine of not more than $500,” Va. Code § 18.2-11(c). No one contends that\n\na simple trespass upon church property is a crime involving moral turpitude. Yet, under\n\nthe DHS framework, if two active participants in a criminal street gang (first element:\n\n“actively participates in . . . a criminal street gang”) knowingly trespass upon church\n\nproperty (second element: knowingly participate in any predicate criminal act) to attend a\n\ngang meeting elsewhere (third element: the predicate criminal act was committed “for the\n\nbenefit of, at the direction of, or in association with the gang”), then upon conviction for\n\nviolating Va. Code § 18.2-46.2, those two individuals have also committed a crime\n\ninvolving moral turpitude under the INA. But no one can seriously contend that two gang\n\nparticipants trespassing on church property to get from Point A to Point B is “inherently\n\nbase, vile or depraved and contrary to accepted rules of morality and the duties owed\n\nbetween persons or to society in general.” Prudencio, 669 F.3d at 484–85 (quoting\n\nMatter of Olquin-Rufino, 23 I. & N. Dec. at 896). Accordingly, under the categorical\n\napproach, not “all permutations of the conduct proscribed by the elements of the offense\n\ninvolve moral turpitude.” Martinez, 892 F.3d at 658.\n\n At bottom, neither Va. Code § 18.2-46.2’s requirement that the defendant\n\nparticipated in a street gang nor its requirement that the predicate crime was committed\n\n“in association with” a criminal street gang ensure that a violation of the statute involves\n\nmoral turpitude. Moreover, beyond pointing to the evil deeds of criminal street gangs writ\n\nlarge, neither the BIA’s decision in this case nor its prior decision in E.E. Hernandez\n\nexplains why non-morally turpitudinous conduct (here, the predicate criminal act)\n\ntransforms into morally turpitudinous behavior simply because it was committed by or in\n\n 20\n\fassociation with gang-related individuals. As such, the BIA’s decision is not persuasive.\n\nAnd because 8 U.S.C. § 1227(a)(2)(A)(i) requires DHS to prove that an alien has a\n\nconviction for a crime involving moral turpitude in order to prove his eligibility for\n\nremoval, DHS fails to meet its burden of proof based on the alien having a conviction for\n\nviolating Va. Code § 18.2-46.2.\n\n We find support for our conclusion in the well-reasoned opinion of the Ninth\n\nCircuit in Hernandez-Gonzalez v. Holder, 778 F.3d 793 (9th Cir. 2015). 7 There, the BIA\n\nheld that the petitioner’s conviction for weapons possession that was “committed for the\n\nbenefit of, at the direction of, or in association with any criminal street gang” and “with\n\nthe specific intent to promote, further, or assist in any criminal conduct by gang\n\nmembers” categorically constituted a crime involving moral turpitude. Id. at 797–98\n\n(quoting Cal. Penal Code § 186.22(b)(1)). The Ninth Circuit reversed, and, with the\n\n\n 7\n Hernadez-Gonzalez also found unpersuasive the BIA’s decision in E.E.\nHernandez. 778 F.3d at 808. When deciding Cabrera’s case, the BIA noted the conflict,\nbut observed that it was bound by E.E. Hernandez given that it was a precedential\ndecision of the BIA. See A.R. 19 n.1. We, of course, are not bound by either the Ninth\nCircuit’s holding or E.E. Hernandez. Although E.E. Hernandez is a published decision by\nthe BIA and thus afforded Chevron deference, it is afforded deference only in its\ninterpretation of the INA, not in its interpretation of state law. See, e.g., Sijpati v. Boente,\n848 F.3d 210, 214 (4th Cir. 2017) (stating that Chevron deference is afforded to\nprecedential decisions of the BIA concerning the agency’s interpretation of the INA,\nmeaning that its “interpretation of an ambiguous provision in the INA must be given\ncontrolling weight unless that interpretation is arbitrary, capricious, or manifestly\ncontrary to the statute” (alteration in original)). Our analysis turns on the definition of a\ncrime involving moral turpitude, the text of Va. Code § 18.2-46.2, and Virginia case law\ninterpreting the statute’s provisions. Many differences between California’s gang-related\nenhancement and Va. Code § 18.2-46.2 exist and some of the Ninth Circuit’s reasoning is\ninapplicable, but portions of its reasoning are nonetheless persuasive.\n\n\n 21\n\fnecessary changes to the text at issue here, its explanation applies equally to the gang-\n\nrelated elements of Va. Code § 18.2-46.2. Like the gang-related enhancement before the\n\nNinth Circuit, the first and third elements of the Virginia statute “do[] not require an\n\nintent to injure, actual injury, or a protected class of victims. Nor does it require the use\n\nof any violence. Rather, the two elements of the gang enhancement” look solely to\n\nestablishing an association with a criminal street gang. Hernandez-Gonzalez, 778 F.3d at\n\n802. Similarly “[t]here is nothing in the statute that would prevent it from applying to\n\nrun-of-the-mill criminal conduct. Of course, all gang-related criminal conduct is, at some\n\nlevel, both serious and morally questionable, but not all gang-related criminal conduct\n\nnecessarily involves grave acts of baseness or depravity.” Id. at 802–03.\n\n In sum, we cannot say based on the sole fact that Va. Code § 18.2-46.2 punishes\n\ngang-related crimes that all convictions for violating Va. Code § 18.2-46.2 involve the\n\nrequisite base, vile, and morally depraved conduct so as to be crimes involving moral\n\nturpitude. Acknowledging this truth in no way “minimize[s] the often serious, antisocial\n\nand morally depraved aspects of gang-related crime[s].” Id. at 805. We recognize only\n\nthat not every act committed by a participant in a criminal street gang and in association\n\nwith a criminal street gang involves moral turpitude. Given that an individual can be\n\nconvicted under Va. Code § 18.2-46.2 for conduct that does not necessarily involve moral\n\nturpitude, it does not categorically qualify as a crime that does.\n\n\n\n\n 22\n\f IV.\n\n For the reasons stated above, we conclude that Virginia’s statute prohibiting\n\nparticipation in criminal gang activity does not categorically qualify as a crime involving\n\nmoral turpitude for purposes of 8 U.S.C. § 1227(a)(2)(A)(i). We therefore grant the\n\npetition for review, vacate the IJ’s order of removal, and remand with instructions to\n\nterminate the removal proceedings.\n\n PETITION FOR REVIEW GRANTED;\n VACATED AND REMANDED\n WITH INSTRUCTIONS\n\n\n\n\n 23\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Melvin Josue Rodriguez CABRERA, Petitioner, v. William P. BARR, Attorney General, Respondent.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-07-19\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1314\\n\\n\\n\\nMELVIN JOSUE RODRIGUEZ CABRERA,\\n\\n Petitioner,\\n v.\\n\\nWILLIAM P. BARR, Attorney General,\\n\\n Respondent.\\n\\n\\nOn Petition for Review of an Order of the Board of Immigration Appeals.\\n\\n\\nArgued: May 9, 2019 Decided: July 19, 2019\\n\\n\\nBefore MOTZ, AGEE and HARRIS, Circuit Judges.\\n\\n\\nPetition for review granted; vacated and remanded with instructions by published\\nopinion. Judge Agee wrote the opinion, in which Judge Motz and Judge Harris joined.\\n\\n\\nARGUED: Teresa Rubinger, GEORGETOWN UNIVERSITY LAW CENTER,\\nWashington, D.C., for Petitioner. Victoria Marie Braga, UNITED STATES\\nDEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Erica\\nHashimoto, Diretor, Anjali Parekh Prakash, Supervising Attorney, Elijah Staggers,\\nStudent Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW\\nCENTER, Washington, D.C., for Petitioner. Joseph H. Hunt, Assistant Attorney General,\\nCindy S. Ferrier, Assistant Director, Office of Immigration Litigation, Civil Division,\\nUNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.\\n\\fAGEE, Circuit Judge:\\n\\n Melvin Josue Rodriguez Cabrera, a native and citizen of El Salvador, became a\\n\\nlawful permanent resident of the United States in 2014. Three years later, the Department\\n\\nof Homeland Security (“DHS”) initiated removal proceedings against him based on his\\n\\n2017 Virginia conviction under Va. Code § 18.2-46.2 for participation in a criminal street\\n\\ngang. The immigration judge (“IJ”) determined that this Virginia offense did not\\n\\ncategorically constitute a crime involving moral turpitude and thus could not be a basis\\n\\nfor removing Cabrera. DHS appealed, and the Board of Immigration Appeals (“BIA”)\\n\\nissued a decision holding that a Virginia conviction for participation in a criminal street\\n\\ngang categorically constitutes a crime involving moral turpitude. The BIA reinstated\\n\\nremoval proceedings against Cabrera and remanded to the IJ for a determination on the\\n\\nother statutory requirements for removal. After the IJ determined that those other\\n\\nelements were met and ordered Cabrera’s removal, he filed a petition for review directly\\n\\nin this Court. We conclude, first, that we have jurisdiction over Cabrera’s petition\\n\\nbecause he has exhausted his administrative remedies, and second, that the Virginia\\n\\noffense of participating in criminal street gang activity is not categorically a crime\\n\\ninvolving moral turpitude. We therefore grant Cabrera’s petition for review, vacate the\\n\\norder of removal, and remand with instructions.\\n\\n\\n\\n I.\\n\\n The Virginia statute prohibiting participation in a criminal street gang states, in\\n\\nrelevant part:\\n\\n 2\\n\\f Any person who actively participates in or is a member of a criminal street\\n gang and who knowingly and willfully participates in any predicate\\n criminal act committed for the benefit of, at the direction of, or in\\n association with any criminal street gang shall be guilty of a Class 5 felony.\\n\\nVa. Code § 18.2-46.2(A). See generally Va. Code § 18.2-10(e) (authorizing punishment\\n\\nfor a Class 5 felony of “a term of imprisonment of not less than one year nor more than\\n\\n10 years”).\\n\\n In 2017, Cabrera pleaded guilty to a violation of this statute, for which he was\\n\\nsentenced to a suspended term of imprisonment of five years. Thereafter, DHS served\\n\\nCabrera with a Notice to Appear before an IJ for removal proceedings initiated under\\n\\nsection 212(a)(2)(A)(i) of the Immigration and Nationality Act (“INA”), codified at 8\\n\\nU.S.C. § 1227(a)(2)(A)(i), which authorizes the removal of an alien who has been\\n\\nconvicted for a crime involving moral turpitude committed within five years of admission\\n\\nand for which a term of imprisonment of one year or longer could be imposed. DHS\\n\\nasserted that Va. Code § 18.2-46.2’s offense is categorically a crime “involving moral\\n\\nturpitude,” which is defined as a crime that “not only violates a statute but also\\n\\nindependently violates a moral norm.” Jimenez-Cedillo v. Sessions, 885 F.3d 292, 294\\n\\n(4th Cir. 2018).\\n\\n The IJ terminated removal proceedings after concluding that Cabrera’s conviction\\n\\nwas not for a crime involving moral turpitude. DHS successfully appealed this decision to\\n\\nthe BIA, which held that when an offense is committed “in association with a gang, the\\n\\nreprehensibility of that act can no longer be viewed in isolation; its inherent moral\\n\\ncharacter is changed—and aggravated—by its gang related nature.” A.R. 21. The BIA\\n\\n\\n 3\\n\\ffurther explained that Va. Code § 18.2-46.2’s requirement that the underlying offense be\\n\\ncommitted “in association with” a gang meant, at a minimum, that the act was committed\\n\\nwith “conscious affiliation, not mere accidental correlation” to a gang, and thus ensured\\n\\nthat the act was also committed with the requisite morally reprehensible state of mind to\\n\\nconstitute a crime involving moral turpitude. A.R. 21. The BIA reinstated the proceedings\\n\\nagainst Cabrera and remanded his case to the IJ for a determination of whether Cabrera’s\\n\\nconviction satisfied the other requirements for removability under 8 U.S.C.\\n\\n§ 1227(a)(2)(A)(i).\\n\\n The IJ entered an order of removal after determining that the other statutory\\n\\nrequirements were met. That order indicates that Cabrera affirmatively waived his right\\n\\nto appeal the IJ’s decision to the BIA, making the IJ’s order a final order of removal. See\\n\\ngenerally 8 C.F.R. § 1241.1(b) (stating that an IJ’s order of removal “shall become final”\\n\\n“[u]pon waiver of appeal by the respondent”).\\n\\n Cabrera filed a timely petition for review that raised one issue: whether the BIA\\n\\nerred in determining that the gang-related offense prohibited under Va. Code § 18.2-46.2\\n\\ncategorically qualifies as a crime involving moral turpitude.\\n\\n\\n\\n II.\\n\\n Before reaching the merits of Cabrera’s petition, we must address our jurisdiction\\n\\nover this case. By statute, we have jurisdiction over final orders of removal “only if” “the\\n\\nalien has exhausted all administrative remedies available to the alien as of right.” 8\\n\\nU.S.C. § 1252(d)(1). Because Congress wrote the exhaustion requirement into the\\n\\n 4\\n\\fjurisdictional grant to the Court for the review of removal orders, the Court lacks\\n\\njurisdiction to consider petitions for review when an alien has not exhausted his\\n\\nadministrative remedies. Massis v. Mukasey, 549 F.3d 631, 638 (4th Cir. 2008) (“We\\n\\nhave previously interpreted [8 U.S.C. § 1252(d)(1)] as a jurisdictional bar.”); cf. Kporlor\\n\\nv. Holder, 597 F.3d 222, 226–27 (4th Cir. 2010) (“The exhaustion doctrine embodies a\\n\\npolicy of respect for administrative agencies, which allows them to carry out their\\n\\nresponsibilities and to discover and correct their own errors.”). That said, no statute\\n\\ndefines what constitutes “exhaustion” for purposes of § 1252(d)(1).\\n\\n Our case law informs the analysis of when administrative exhaustion has occurred,\\n\\nbut the precise question raised in this case is an issue of first impression in this Circuit:\\n\\nwas Cabrera required to appeal the IJ’s order of removal to the BIA before filing his\\n\\npetition for review with this Court in order to exhaust his administrative remedies? That\\n\\nquestion is presented within the additional context that the sole issue raised in Cabrera’s\\n\\npetition relates to a legal question the BIA conclusively decided earlier in his removal\\n\\nproceeding.\\n\\n Ordinarily, a petitioner exhausts his administrative remedies by raising an\\n\\nargument challenging the IJ’s decision in an appeal to the BIA. E.g., Kporlor, 597 F.3d at\\n\\n226 (“It is well established that an alien must raise each argument to the BIA before we\\n\\nhave jurisdiction to consider it.”). Consequently, arguments that a petitioner did not raise\\n\\nin the BIA proceedings have not been exhausted and the Court lacks jurisdiction to\\n\\nconsider them. Asika v. Ashcroft, 362 F.3d 264, 267 n.3 (4th Cir. 2004) (“We have no\\n\\njurisdiction to consider this argument, however, because [the petitioner] failed to make it\\n\\n 5\\n\\fbefore the [BIA] and, therefore, failed to exhaust all administrative remedies.”). Only\\n\\nafter the BIA has rendered a decision on an argument or claim is that argument or claim\\n\\nsaid to have been exhausted. See Lizama v. Holder, 629 F.3d 440, 448–49 (4th Cir. 2011)\\n\\n(holding that an alien exhausted remedies by raising a claim in his notice of appeal to the\\n\\nBIA—even if he neglects to brief the issue—if the BIA has nonetheless addressed the\\n\\nissue in its decision). In sum, we have consistently held that when the BIA has never been\\n\\npart of a petitioner’s removal proceedings we lack jurisdiction to consider the petition for\\n\\nreview and when a petition contains an argument that has never been presented to the\\n\\nBIA for consideration, we lack jurisdiction to consider it even if other arguments in the\\n\\npetition have been exhausted.\\n\\n Relying on these principles, DHS contends that Cabrera did not exhaust his\\n\\nadministrative remedies because he had the right to appeal the IJ’s removal order to the\\n\\nBIA, but he chose to waive that right. DHS argues that the BIA must first determine\\n\\nwhether Cabrera’s removal was proper before this Court can consider Cabrera’s petition\\n\\nfor review and that his decision not to appeal directly to the BIA deprived the BIA of the\\n\\nopportunity to do so. In addition, DHS asserts that the BIA’s earlier decision concerning\\n\\nCabrera’s Virginia conviction did not relieve him of his obligation to appeal the removal\\n\\norder to the BIA because there is no futility exception to the exhaustion requirement.\\n\\n Relying on the same principles, Cabrera responds that he has exhausted his\\n\\nadministrative remedies because the BIA definitively ruled in the earlier appeal that his\\n\\nVirginia conviction is for a crime involving moral turpitude and that ruling is the sole\\n\\nissue he raises in his petition for review. He observes that although this Court has not\\n\\n 6\\n\\fdecided whether administrative remedies have been exhausted in these circumstances,\\n\\nthree circuit courts of appeals have considered it and have unanimously held in favor of\\n\\nfinding exhaustion. Our sister circuits have determined that a petitioner has exhausted his\\n\\nadministrative remedies when the BIA conclusively determined the issue(s) for which a\\n\\npetitioner seeks review even though the BIA’s review occurred before a remand to the IJ\\n\\nand even though the petitioner did not appeal the IJ’s removal order to the BIA before\\n\\nfiling a petition for review directly with the court of appeals. See Shepherd v. Holder, 678\\n\\nF.3d 1171, 1176–78 (10th Cir. 2012); Popal v. Gonzales, 416 F.3d 249, 252–53 (3d Cir.\\n\\n2005); Perkovic v. I.N.S., 33 F.3d 615, 619–20 (6th Cir. 1994). 1\\n\\n\\n 1\\n DHS relies on various nuances between these cases and Cabrera’s in an effort to\\ndistinguish them. We conclude that these differences are immaterial to the exhaustion\\nanalysis and present sufficiently similar circumstances to the posture of Cabrera’s case to\\nbe analogous and persuasive. We need not recount the underlying facts at length given\\nthat this case turns on the underlying legal principles.\\n\\n Briefly, though, in Shepherd, the IJ had initially dismissed the removal\\nproceedings against the petitioner based on collateral estoppel, the government\\nsuccessfully “appealed to the BIA, which reversed the IJ’s collateral estoppel ruling,” and\\n“remanded for further proceedings and the entry of a new decision.” 678 F.3d at 1176.\\nThe IJ then entered a final order of removal and the petitioner filed her petition for review\\nwithout first appealing that decision to the BIA. Id. The Tenth Circuit held that she had\\nexhausted her administrative remedies to challenge the collateral estoppel issue in federal\\ncourt because “exhaustion does not require repeated presentations of issues already\\nfinally resolved” and two circuit courts had also “disavow[ed] the need for redundant\\nappeals to the BIA.” Id. at 1178.\\n\\n In Popal, the IJ had initially terminated removal proceedings against the petitioner\\nafter concluding that the state offense relied on to initiate the proceedings did not qualify\\nas a crime of violence. 416 F.3d at 251. “DHS appealed [that decision] to the BIA, which\\nreversed,” and held that the petitioner was eligible for removal. Id. The BIA then\\nremanded “to allow [the petitioner] to apply for any relief from removal for which he\\nmay be eligible.” Id. The petitioner declined the opportunity to apply for any other relief,\\n(Continued)\\n 7\\n\\f We agree with Cabrera—and our sister circuits—that a petitioner has exhausted\\n\\nhis administrative remedies when the BIA has issued a definitive ruling on the issue\\n\\nraised in the petition for review, even though the BIA ruling came before the IJ’s entry of\\n\\nan order of removal and even though the petitioner did not appeal that order to the BIA\\n\\nbefore filing the petition for review. This conclusion follows from applying several\\n\\nprinciples related to the exhaustion requirement.\\n\\n First, the exhaustion requirement “serves the twin purposes of protecting\\n\\nadministrative agency authority and promoting judicial efficiency.” Kurfees v. I.N.S., 275\\n\\nF.3d 332, 336 (4th Cir. 2001); accord Kporlor, 597 F.3d at 226–27. Both objectives are\\n\\n\\nthe IJ ordered the petitioner removed, and the petitioner filed his petition for review\\nwithout appealing the removal order to the BIA first. Id. The Third Circuit held that the\\npetitioner exhausted his administrative remedies because the IJ’s decision “made no new\\nfindings of fact or conclusions of law, and considered no issues that had not been decided\\nby the BIA,” and instead simply “implemented the BIA’s decision.” Id. at 253. The court\\nobserved that “the purposes of exhaustion would [not] be served by a further appeal to\\nthe BIA” given that “[t]here are no factual allegations or legal arguments before us that\\nwere not raised before the BIA.” Id.\\n\\n In Perkovic, the IJ had initially determined “that the petitioners should be granted\\nasylum,” and “INS appealed the decision” to the BIA, which “reversed the [IJ’s] decision\\nand remanded the case” after determining that they were ineligible for asylum. 33 F.3d at\\n618. The IJ then entered a final order of removal after allowing the petitioners to select\\ntheir destination country and granting voluntary departure, which the petitioners appealed\\nto the Sixth Circuit without first seeking the BIA’s review. Id. at 618–19. The Sixth\\nCircuit held that the petitioners had exhausted their administrative remedies as to their\\neligibility for asylum “because [that issue was] presented to the immigration judge and\\nthen to the Board, which definitively resolved the claims on their merits.” Id. at 619. The\\ncourt further observed that it would be “pointless to interpret the exhaustion rule as\\nrequiring that . . . uncontested matters be presented to the Board before” the final removal\\norder “can be considered by this court.” Id. at 620.\\n\\n\\n\\n\\n 8\\n\\fserved when, as is the case before us, the BIA has exercised its authority by issuing a\\n\\nconclusive ruling on a particular issue in the petitioner’s agency proceedings and the\\n\\nCourt knows the agency’s final adjudication of the issue in the petitioner’s case.\\n\\nConversely, none of the traditional principles favoring exhaustion would be served by\\n\\nrequiring a second appeal to the BIA after the IJ’s final entry of the removal order when\\n\\nthe petitioner does not challenge the decisions made in that order. See Popal, 416 F.3d at\\n\\n253 (“The issues have been fairly presented to, and fully adjudicated by, the BIA. There\\n\\nare no factual allegations or legal arguments before us that were not raised before the\\n\\nBIA. Judicial economy would not be served by requiring [the petitioner] to take a second,\\n\\nessentially frivolous appeal to the BIA raising the same issues that the Board had already\\n\\nrejected in [his] own case.”).\\n\\n Second, the exhaustion requirement is consistently described in terms of substance\\n\\nrather than timing. The significant inquiry is that the BIA has definitively ruled on the\\n\\npetitioner’s argument in adjudicating his case, not when it has done so. Kporlor, 597 F.3d\\n\\nat 226 (“It is well established that an alien must raise each argument to the BIA before we\\n\\nhave jurisdiction to consider it.” (emphasis added)); see Telyatitskiy v. Holder, 628 F.3d\\n\\n628, 631 (1st Cir. 2011) (considering both the petitioner’s BIA appeal and motion to\\n\\nreconsider to determine whether the petitioner had raised the argument made in his\\n\\npetition for review and thus exhausted his administrative remedies as to that argument);\\n\\ncf. Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010) (observing that “an\\n\\nalien must present the same specific legal theory to the BIA before he or she may\\n\\n\\n\\n 9\\n\\fadvance it in [this] court”). Here, the BIA has definitively addressed the argument\\n\\nCabrera makes in his petition.\\n\\n Third, the exhaustion requirement is satisfied when the BIA has definitively\\n\\nspoken on a particular issue in the petitioner’s case one time. Petitioners need not file a\\n\\nmotion to reconsider the same argument the BIA has already rejected in order to exhaust\\n\\ntheir remedies. See Woodford v. Ngo, 548 U.S. 81, 92 (2006) (describing the exhaustion\\n\\nrequirement in the context of habeas corpus as “properly present[ing] his or her claims\\n\\nthrough one complete round of the . . . established appellate review process” (emphasis\\n\\nadded)); Shepherd, 678 F.3d at 1177; see also Parlak v. Holder, 578 F.3d 457, 463 (6th\\n\\nCir. 2009) (observing that, “as a general rule,” petitioners do not have to file a motion to\\n\\nreconsider with the BIA to exhaust administrative remedies as to an argument the BIA\\n\\nhas already rejected); Toledo-Hernandez v. Mukasey, 521 F.3d 332, 336 (5th Cir. 2008)\\n\\n(“In cases where the BIA has previously ruled on an issue, we do not hold that in order to\\n\\nexhaust their administrative remedies for purposes of invoking federal court jurisdiction\\n\\nthat petitioners must file a motion to reopen in order to have the agency reconsider the\\n\\nsame issue.”); Padilla v. Gonzales, 470 F.3d 1209, 1214 (7th Cir. 2006) (“[I]n the typical\\n\\ncase an alien will first present his arguments to the BIA, and if the BIA orders his\\n\\nremoval after considering those arguments, the alien need not ask the BIA to reconsider\\n\\nits decision before he may petition a court for review.”). Requiring Cabrera to appeal the\\n\\nIJ’s removal order to the BIA as a mandatory prerequisite to challenge in the court of\\n\\nappeals the BIA’s prior decision that his conviction was for a crime involving moral\\n\\nturpitude “would [be] the functional equivalent of” requiring him to move to reconsider\\n\\n 10\\n\\fbefore filing a petition for review. Perkovic, 33 F.3d at 620. It is therefore just as\\n\\nunnecessary.\\n\\n Lastly, exercising jurisdiction under the circumstances presented in this case does\\n\\nnot—as DHS contends—amount to allowing a petitioner to avoid the exhaustion\\n\\nrequirement based on general futility. Generally speaking, a petitioner must raise his\\n\\narguments before the BIA even when he is almost assuredly not going to prevail, such as\\n\\nwhen the BIA has rejected the argument in a different case or binding precedent\\n\\nforecloses it from adopting his position. See Popal, 416 F.3d at 252–53 (“[T]he\\n\\nexhaustion requirement of 8 U.S.C. § 1252(d) is jurisdictional, and . . . there is no general\\n\\nfutility exception. Indeed, the fact that the BIA has considered and rejected the\\n\\npetitioner’s argument in another case will not normally excuse [his] failure to raise it in\\n\\nhis own appeal to the BIA. An alien must exhaust all administrative remedies available to\\n\\nhim, even if he reasonably predicts that these remedies are unlikely to do him any\\n\\ngood.”). 2 Although a limited exception for “futility” exists in other contexts where\\n\\nexhaustion of administrative remedies is required, e.g., Ham v. North Carolina, 471 F.2d\\n\\n406, 407 (4th Cir. 1973), the Supreme Court has held that such exceptions are not\\n\\nappropriately “read . . . into statutory exhaustion requirements” unless Congress has\\n\\nprovided for them, Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). See Bowles v.\\n\\nRussell, 551 U.S. 205, 214 (2007) (stating courts have “no authority to create equitable\\n\\n\\n 2\\n We have omitted any internal quotation marks, alterations, and citations here and\\nthroughout this opinion, unless otherwise noted.\\n\\n\\n 11\\n\\fexceptions to jurisdictional requirements”); Massis, 549 F.3d at 640 (declining to read a\\n\\n“miscarriage of justice” exception into § 1252(d)’s exhaustion requirement in light of\\n\\nBowles’s instruction and observing that “[s]ince Bowles, courts of appeals have declined\\n\\nto entertain equitable exceptions to section 1252(d)’s administrative exhaustion\\n\\nrequirement”). Our conclusion in this case is grounded on Cabrera having exhausted his\\n\\nadministrative remedies, not on his being excused from this requirement. The record\\n\\ndemonstrates that the BIA considered and rejected the argument Cabrera has raised in his\\n\\npetition for review in Cabrera’s own administrative proceedings. The BIA’s dispositive\\n\\nruling—not futility—is the basis for concluding we have jurisdiction over his petition for\\n\\nreview. See Popal, 416 F.3d at 253 (holding the same).\\n\\n In short, we hold that Cabrera was not required to appeal the IJ’s removal order to\\n\\nthe BIA before filing his petition for review challenging the BIA’s determination that his\\n\\nconviction was for an offense that is categorically a crime involving moral turpitude. The\\n\\nBIA definitively ruled on the argument Cabrera is now challenging in his petition before\\n\\nit remanded his removal proceedings to the IJ for other factual findings that did not\\n\\ndisturb or affect the BIA’s decision on this issue. As such, Cabrera has exhausted his\\n\\nadministrative remedies, and we have jurisdiction to consider his petition for review.\\n\\n\\n\\n III.\\n\\n Turning to the substance of the petition for review, Cabrera poses a\\n\\nstraightforward question of law: did the BIA err in holding that a conviction for violating\\n\\n\\n\\n 12\\n\\fVa. Code § 18.2-46.2 categorically qualifies as a crime involving moral turpitude for\\n\\npurposes of 8 U.S.C. § 1227(a)(2)(A)(i)?\\n\\n A.\\n\\n In resolving this issue, we defer to the BIA’s determination only to the extent that\\n\\nwe find its reasoning persuasive. This is so for two reasons: first, the Court does not defer\\n\\nto the BIA’s determination that a state statute categorically involves moral turpitude\\n\\nbecause that is a question outside the BIA’s authority and expertise. Ramirez v. Sessions,\\n\\n887 F.3d 693, 702 (4th Cir. 2018). To the extent the BIA’s decision rests on an\\n\\ninterpretation of Va. Code § 18.2-46.2, the Court’s review is de novo. See Uribe v.\\n\\nSessions, 855 F.3d 622, 625 (4th Cir. 2017). Second, because the BIA issued a one-\\n\\nmember decision in Cabrera’s case, the decision is non-precedential and “categorically\\n\\nineligible for Chevron” 3 deference. Ramirez, 887 F.3d at 702. “In the absence of Chevron\\n\\ndeference, the weight given to a BIA decision ‘hinges on the thoroughness evident in the\\n\\nBIA’s consideration, the validity of its reasoning, its consistency with earlier and later\\n\\npronouncements, and all those factors which give it the power to persuade.’” Id. at 703\\n\\n(alteration in original) (describing Skidmore 4 deference).\\n\\n Here, in issuing a non-precedential, one-member decision concluding that the\\n\\noffense punishable under Va. Code § 18.2-46.2 categorically is a crime involving moral\\n\\nturpitude, the BIA relied principally on its precedential decision, Matter of E.E.\\n\\n 3\\n Chevron, U.S.A., Inc. v. Nat’l Res. Defen. Council, Inc., 467 U.S. 837 (1984).\\n 4\\n Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).\\n\\n\\n 13\\n\\fHernandez, 26 I. & N. Dec. 397 (B.I.A. 2014). That case held that the California Penal\\n\\nCode’s enhancement for gang-related offenses transformed crimes that were not\\n\\notherwise morally turpitudinous into ones that were. A.R. 19; see also id. at 397.\\n\\nReferencing E.E. Hernandez, the BIA pointed to the “moral depravity of criminal street\\n\\ngangs” and observed that Va. Code § 18.2-46.2 “does not criminalize mere gang\\n\\nmembership, nor does it cover offenses in which the gang affiliation of the accused was\\n\\nincidental to the commission of the underlying offense.” From that premise, it concluded\\n\\nthat the combination of a “predicate criminal act” and “the aggravating circumstances\\n\\nwhich make it a gang-related violation” caused Va. Code § 18.2-46.2 to necessarily\\n\\ninvolve moral turpitude. A.R. 20–21. In addition, the BIA determined that the\\n\\nrequirement in Va. Code § 18.2-46.2 that the defendant acted, at a minimum, “in\\n\\nassociation with” a gang provided the requisite level of mental culpability to be a crime\\n\\ninvolving moral turpitude. A.R. 21–22. At its core, the BIA’s decision rested on the\\n\\npremise that acts that are not morally turpitudinous in themselves necessarily become so\\n\\n“when committed ‘in association with’ a gang by an active gang participant.” A.R. 22.\\n\\n For the reasons set out below, we conclude that the reasoning in the BIA’s\\n\\ndecision is not persuasive; therefore, we do not afford it Skidmore deference.\\n\\n B.\\n\\n “[G]enerally, a crime involves moral turpitude if it is ‘inherently base, vile, or\\n\\ndepraved and contrary to accepted rules of morality and the duties owed between persons\\n\\nor to society in general.’” Prudencio v. Holder, 669 F.3d 472, 484–85 (4th Cir. 2012).\\n\\n(quoting Matter of Olquin-Rufino, 23 I. & N. Dec. 896, 896 (B.I.A. 2006)); see also\\n\\n 14\\n\\fMohamed v. Holder, 769 F.3d 885, 888 (4th Cir. 2014) (“[W]e have noted that ‘moral\\n\\nturpitude’ refers generally to ‘conduct that shocks the public conscience as being\\n\\ninherently base, vile, or depraved.’” (quoting Medina v. United States, 259 F.3d 220, 227\\n\\n(4th Cir. 2001)). A criminal statute must require two things in order to satisfy this\\n\\ndefinition: “‘a culpable mental state and reprehensible conduct.’” Sotnikau v. Lynch, 846\\n\\nF.3d 731, 736 (4th Cir. 2017) (quoting Matter of Ortega-Lopez, 26 I. & N. Dec. 99, 100\\n\\n(B.I.A. 2013)).\\n\\n When undertaking this review, the Court uses the categorical approach, looking to\\n\\nthe elements of the crime rather than the particular circumstances of the petitioner’s\\n\\nviolation. Prudencio, 669 F.3d at 484. Under this approach, a crime does not involve\\n\\nmoral turpitude if there is a “realistic probability” that the statute of conviction could “be\\n\\napplied to reach conduct that does not involve moral turpitude.” Matter of Louissant, 24\\n\\nI. & N. Dec. 754, 757 (B.I.A. 2009). Put another way, “[i]f all permutations of the\\n\\nconduct proscribed by the elements of the offense involve moral turpitude, then the\\n\\noffense categorically qualifies as” one involving moral turpitude. Martinez v. Sessions,\\n\\n892 F.3d 655, 658 (4th Cir. 2018). 5\\n\\n\\n 5\\n In the agency proceedings, both DHS and Cabrera based their arguments on the\\ncategorical approach. On appeal, DHS contends for the first time that if the Court\\nconcludes Va. Code § 18.2-46.2 is not categorically a crime involving moral turpitude,\\nthen we should consider in the first instance whether the modified categorical approach\\nshould be used or, in the alternative, remand for the BIA to undertake that initial review.\\nDHS Br. 40–41 n.9.\\n\\n The modified categorical approach “applies in cases involving ‘divisible’\\nstatutes,” meaning statutes that “set[] out alternate elements that create multiple forms of\\n(Continued)\\n 15\\n\\f Several aspects of Va. Code § 18.2-46.2 are undisputed. It has three elements:\\n\\n First, a person must actively participate in or be a member of a criminal\\n street gang. Second, the person must knowingly and willfully participate in\\n a predicate criminal act. Third, the act must be committed for the benefit of,\\n at the direction of, or in association with the gang.\\n\\nHamilton v. Commonwealth, 688 S.E.2d 168, 177 (Va. 2010). 6 Further, the second\\n\\nelement cannot form the basis for the conclusion that the offense involves moral turpitude\\n\\nbecause, as DHS concedes, this element’s “predicate criminal act” encompasses offenses\\n\\nthat the BIA and this Court have determined are not crimes involving moral turpitude for\\n\\nimmigration purposes. DHS Br. 15; compare Parada v. Commonwealth, No. 0572-07-4,\\n\\n\\n\\nthe criminal offense and at least one form of the offense qualifies—by its elements—as\\nthe generic predicate offense.” Martinez, 892 F.3d at 659. But “[a] statute that lists\\nalternative means of committing a single offense, rather than alternative elements, is not\\ndivisible.” Id.\\n\\n The modified categorical approach cannot be used to analyze Va. Code § 18.2-\\n46.2 because the statute is not divisible. As discussed above, the statute contains three\\nelements, with two elements listing alternative means of satisfying that element. We\\ntherefore confine our analysis to whether the proscribed offense is categorically a crime\\ninvolving moral turpitude.\\n 6\\n Virginia law defines “criminal street gang” to mean\\n\\n any ongoing organization, association, or group of three or more persons,\\n whether formal or informal, (i) which has as one of its primary objectives\\n or activities the commission of one or more criminal activities; (ii) which\\n has an identifiable name or identifying sign or symbol; and (iii) whose\\n members individually or collectively have engaged in the commission of,\\n attempt to commit, conspiracy to commit, or solicitation of two or more\\n predicate criminal acts, at least one of which is an act of violence, provided\\n such acts were not part of a common act or transaction.\\n\\nVa. Code § 18.2-46.1.\\n\\n\\n 16\\n\\f2008 WL 2497334, at *1 (Va. Ct. App. June 24, 2008) (holding that Virginia’s assault\\n\\nand battery statute can be a predicate criminal act for purposes of Va. Code § 18.2-46.2),\\n\\nwith Matter of Jing Wu, 27 I. & N. Dec. 8, 10–11 (B.I.A. 2017) (holding that Virginia’s\\n\\nassault and battery statute is not a crime involving moral turpitude). As a consequence,\\n\\nfor this offense to involve moral turpitude, the conduct proscribed by the first or third\\n\\nelements of the statute must encompass moral turpitude. And because the categorical\\n\\napproach requires us to “presume that the prior conviction rested upon nothing more than\\n\\nthe least of the acts criminalized and then determine whether even those acts are\\n\\nencompassed by” the statute, we focus on “the minimum conduct criminalized by the\\n\\nstatute of conviction.” Mena v. Lynch, 820 F.3d 114, 117 (4th Cir. 2016); accord\\n\\nMartinez, 892 F.3d at 664.\\n\\n Turning to the first element of Va. Code § 18.2-46.2, the Supreme Court of\\n\\nVirginia has recognized that this element requires proof of “either membership or\\n\\nparticipation” in a criminal street gang. Hamilton, 688 S.E.2d at 177 (emphasis added);\\n\\naccord Rushing v. Commonwealth, 726 S.E.2d 333, 338 (Va. 2012) (“A defendant\\n\\ncharged with gang participation, although not an actual member of the gang, may be\\n\\nconvicted upon a showing that he participated in a gang-related crime.”). Of these two\\n\\nmeans of satisfying the element, active participation in the gang would be the lesser\\n\\nconduct. Virginia courts have held, for example, that a defendant’s choice to wear a red\\n\\nhat and shirt to a party where other Bloods wearing red clothing were also present and\\n\\nwhere the defendant told a third party dressed in red, “You’re a Blood and you don’t even\\n\\n\\n\\n 17\\n\\fknow it,” was sufficient evidence of “participation” to satisfy this element. Hamilton, 688\\n\\nS.E.2d at 177.\\n\\n Similarly, the third element—that the predicate criminal act was “committed for\\n\\nthe benefit of, at the direction of, or in association with the gang”—can be committed in\\n\\nany one of these three disjunctive ways. See Morris v. Commonwealth, 716 S.E.2d 139,\\n\\n141 (Va. Ct. App. 2011) (“[U]nder the plain language of Code § 18.2-46.2(A), the\\n\\nCommonwealth . . . was required to prove that the predicate criminal act appellant\\n\\nparticipated in with the . . . gang was committed ‘for the benefit of’ or ‘at the direction\\n\\nof’ or ‘in association with’ the . . . gang.”). Of the three, “in association with” appears to\\n\\nbe the lowest threshold for satisfying the element. Virginia courts have held that this\\n\\ncomponent of the statute requires proof only that the defendant shared an intent to\\n\\ncommit the predicate criminal act, and it “does not expressly require that the defendant\\n\\nha[d] the same, specific objective” as the gang for committing that act. Id. at 141. Thus,\\n\\nfor example, the Court of Appeals of Virginia held that sufficient evidence existed to\\n\\nshow that the defendant committed the predicate act “in association with” a gang where\\n\\nhe “associated himself with [gang] members in order to attack innocent individuals” and\\n\\n“shared the same general objective as the . . . gang members” by “join[ing] in the”\\n\\npredicate criminal act. Id. at 141–42. It rejected the defendant’s argument that the\\n\\nCommonwealth had to demonstrate that he had the same specific reason for participating\\n\\nin the attack as the participating gang members, i.e., “achieving rank within the criminal\\n\\nstreet gang.” Id. at 141.\\n\\n\\n\\n 18\\n\\f Having earlier concluded that the second element of the statute cannot provide the\\n\\nrequisite combination of “a culpable mental state and reprehensible conduct” to make Va.\\n\\nCode § 18.2-46.2 categorically qualify as a crime involving moral turpitude, we reach the\\n\\nsame conclusion as to elements one and three. Contrary to the BIA’s conclusion, the mere\\n\\nfact that an act was committed “in association with” a gang by someone who “actively\\n\\nparticipate[d] in” the gang does not necessarily involve moral turpitude. To hold\\n\\notherwise would allow a statute to be classified as involving depraved conduct based on a\\n\\ncharacteristic unrelated to that conduct, whether it be the defendant’s identity or that of\\n\\nthe individuals with whom he acted. The fact that the defendant or his associates may\\n\\nhave committed other morally depraved conduct that would satisfy the gang-related\\n\\nelements of Va. Code § 18.2-46.2 has no nexus to the predicate criminal act of conviction\\n\\nto recast it into a crime involving moral turpitude for purposes of the INA. And in\\n\\nenacting 8 U.S.C. § 1227(a)(2)(A)(i), Congress required DHS to prove just that: to be\\n\\nremovable under this provision, the alien must have been “convicted of a crime involving\\n\\nmoral turpitude.” (Emphasis added.)\\n\\n The following example illustrates our conclusion that a conviction under Va. Code\\n\\n§ 18.2-46.2 does not categorically qualify as a crime involving moral turpitude. A\\n\\npredicate criminal act under Va. Code § 18.2-46.2 includes violating Va. Code § 18.2-\\n\\n128—trespass upon church or school property. See Va. Code § 18.2-46.1 (listing a\\n\\nviolation of Va. Code § 18.2-128 among the potential predicate criminal acts for purposes\\n\\nof Va. Code § 18.2-46.2). Virginia law generally classifies that crime as a Class 3\\n\\nmisdemeanor, Va. Code § 18.2-128(A), meaning that the maximum punishment for its\\n\\n 19\\n\\fviolation is a “fine of not more than $500,” Va. Code § 18.2-11(c). No one contends that\\n\\na simple trespass upon church property is a crime involving moral turpitude. Yet, under\\n\\nthe DHS framework, if two active participants in a criminal street gang (first element:\\n\\n“actively participates in . . . a criminal street gang”) knowingly trespass upon church\\n\\nproperty (second element: knowingly participate in any predicate criminal act) to attend a\\n\\ngang meeting elsewhere (third element: the predicate criminal act was committed “for the\\n\\nbenefit of, at the direction of, or in association with the gang”), then upon conviction for\\n\\nviolating Va. Code § 18.2-46.2, those two individuals have also committed a crime\\n\\ninvolving moral turpitude under the INA. But no one can seriously contend that two gang\\n\\nparticipants trespassing on church property to get from Point A to Point B is “inherently\\n\\nbase, vile or depraved and contrary to accepted rules of morality and the duties owed\\n\\nbetween persons or to society in general.” Prudencio, 669 F.3d at 484–85 (quoting\\n\\nMatter of Olquin-Rufino, 23 I. & N. Dec. at 896). Accordingly, under the categorical\\n\\napproach, not “all permutations of the conduct proscribed by the elements of the offense\\n\\ninvolve moral turpitude.” Martinez, 892 F.3d at 658.\\n\\n At bottom, neither Va. Code § 18.2-46.2’s requirement that the defendant\\n\\nparticipated in a street gang nor its requirement that the predicate crime was committed\\n\\n“in association with” a criminal street gang ensure that a violation of the statute involves\\n\\nmoral turpitude. Moreover, beyond pointing to the evil deeds of criminal street gangs writ\\n\\nlarge, neither the BIA’s decision in this case nor its prior decision in E.E. Hernandez\\n\\nexplains why non-morally turpitudinous conduct (here, the predicate criminal act)\\n\\ntransforms into morally turpitudinous behavior simply because it was committed by or in\\n\\n 20\\n\\fassociation with gang-related individuals. As such, the BIA’s decision is not persuasive.\\n\\nAnd because 8 U.S.C. § 1227(a)(2)(A)(i) requires DHS to prove that an alien has a\\n\\nconviction for a crime involving moral turpitude in order to prove his eligibility for\\n\\nremoval, DHS fails to meet its burden of proof based on the alien having a conviction for\\n\\nviolating Va. Code § 18.2-46.2.\\n\\n We find support for our conclusion in the well-reasoned opinion of the Ninth\\n\\nCircuit in Hernandez-Gonzalez v. Holder, 778 F.3d 793 (9th Cir. 2015). 7 There, the BIA\\n\\nheld that the petitioner’s conviction for weapons possession that was “committed for the\\n\\nbenefit of, at the direction of, or in association with any criminal street gang” and “with\\n\\nthe specific intent to promote, further, or assist in any criminal conduct by gang\\n\\nmembers” categorically constituted a crime involving moral turpitude. Id. at 797–98\\n\\n(quoting Cal. Penal Code § 186.22(b)(1)). The Ninth Circuit reversed, and, with the\\n\\n\\n 7\\n Hernadez-Gonzalez also found unpersuasive the BIA’s decision in E.E.\\nHernandez. 778 F.3d at 808. When deciding Cabrera’s case, the BIA noted the conflict,\\nbut observed that it was bound by E.E. Hernandez given that it was a precedential\\ndecision of the BIA. See A.R. 19 n.1. We, of course, are not bound by either the Ninth\\nCircuit’s holding or E.E. Hernandez. Although E.E. Hernandez is a published decision by\\nthe BIA and thus afforded Chevron deference, it is afforded deference only in its\\ninterpretation of the INA, not in its interpretation of state law. See, e.g., Sijpati v. Boente,\\n848 F.3d 210, 214 (4th Cir. 2017) (stating that Chevron deference is afforded to\\nprecedential decisions of the BIA concerning the agency’s interpretation of the INA,\\nmeaning that its “interpretation of an ambiguous provision in the INA must be given\\ncontrolling weight unless that interpretation is arbitrary, capricious, or manifestly\\ncontrary to the statute” (alteration in original)). Our analysis turns on the definition of a\\ncrime involving moral turpitude, the text of Va. Code § 18.2-46.2, and Virginia case law\\ninterpreting the statute’s provisions. Many differences between California’s gang-related\\nenhancement and Va. Code § 18.2-46.2 exist and some of the Ninth Circuit’s reasoning is\\ninapplicable, but portions of its reasoning are nonetheless persuasive.\\n\\n\\n 21\\n\\fnecessary changes to the text at issue here, its explanation applies equally to the gang-\\n\\nrelated elements of Va. Code § 18.2-46.2. Like the gang-related enhancement before the\\n\\nNinth Circuit, the first and third elements of the Virginia statute “do[] not require an\\n\\nintent to injure, actual injury, or a protected class of victims. Nor does it require the use\\n\\nof any violence. Rather, the two elements of the gang enhancement” look solely to\\n\\nestablishing an association with a criminal street gang. Hernandez-Gonzalez, 778 F.3d at\\n\\n802. Similarly “[t]here is nothing in the statute that would prevent it from applying to\\n\\nrun-of-the-mill criminal conduct. Of course, all gang-related criminal conduct is, at some\\n\\nlevel, both serious and morally questionable, but not all gang-related criminal conduct\\n\\nnecessarily involves grave acts of baseness or depravity.” Id. at 802–03.\\n\\n In sum, we cannot say based on the sole fact that Va. Code § 18.2-46.2 punishes\\n\\ngang-related crimes that all convictions for violating Va. Code § 18.2-46.2 involve the\\n\\nrequisite base, vile, and morally depraved conduct so as to be crimes involving moral\\n\\nturpitude. Acknowledging this truth in no way “minimize[s] the often serious, antisocial\\n\\nand morally depraved aspects of gang-related crime[s].” Id. at 805. We recognize only\\n\\nthat not every act committed by a participant in a criminal street gang and in association\\n\\nwith a criminal street gang involves moral turpitude. Given that an individual can be\\n\\nconvicted under Va. Code § 18.2-46.2 for conduct that does not necessarily involve moral\\n\\nturpitude, it does not categorically qualify as a crime that does.\\n\\n\\n\\n\\n 22\\n\\f IV.\\n\\n For the reasons stated above, we conclude that Virginia’s statute prohibiting\\n\\nparticipation in criminal gang activity does not categorically qualify as a crime involving\\n\\nmoral turpitude for purposes of 8 U.S.C. § 1227(a)(2)(A)(i). We therefore grant the\\n\\npetition for review, vacate the IJ’s order of removal, and remand with instructions to\\n\\nterminate the removal proceedings.\\n\\n PETITION FOR REVIEW GRANTED;\\n VACATED AND REMANDED\\n WITH INSTRUCTIONS\\n\\n\\n\\n\\n 23\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2954,"cells":{"id":{"kind":"number","value":4642452,"string":"4,642,452"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee, v. Christopher RODRIGUEZ-SORIANO, A/K/A Christopher Soriano, A/K/A Christopher Soriano-Rodriguez, Defendant - Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Christopher Rodriguez-Soriano"},"decision_date":{"kind":"string","value":"2019-07-24"},"docket_number":{"kind":"string","value":"18-4291"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Gregory, Richardson, Duncan\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888985/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"040dissent\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888986/\", \"author_raw\": \"\"}, {\"author\": \"Conviction reversed and remanded by published opinion. Chief Judge Gregory wrote the\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-4291\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff – Appellee,\\n\\n v.\\n\\nCHRISTOPHER RODRIGUEZ-SORIANO, a/k/a Christopher Soriano, a/k/a\\nChristopher Soriano-Rodriguez,\\n\\n Defendant – Appellant.\\n\\n\\nAppeal from the United States District Court for the Eastern District of Virginia, at\\nAlexandria. Liam O’Grady, District Judge. (1:17–cr–00197–LO–1)\\n\\n\\nArgued: January 30, 2019 Decided: July 24, 2019\\n\\n\\nBefore GREGORY, Chief Judge, RICHARDSON, Circuit Judge, and DUNCAN, Senior\\nCircuit Judge.\\n\\n\\nConviction reversed and remanded by published opinion. Chief Judge Gregory wrote the\\nopinion, in which Senior Judge Duncan joined. Judge Richardson wrote a dissenting\\nopinion.\\n\\n\\nARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\\nAlexandria, Virginia, for Appellant. James L. Trump, OFFICE OF THE\\nUNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:\\nGeremy C. Kamens, Federal Public Defender, Shannon Quill, Assistant Federal Public\\nDefender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for\\nAppellant. G. Zach Terwilliger, United States Attorney, Christopher K. Grieco, Special\\n\\nAssistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,\\nAlexandria, Virginia, for Appellee.\\n\\n\\n\\n\\n 2\\n\\nGREGORY, Chief Judge:\\n\\n Christopher Rodriguez-Soriano was found guilty of knowingly making a false\\n\\nstatement to a licensed firearms dealer in the acquisition of a firearm, stating that he was\\n\\nthe actual purchaser of the firearms when he was acquiring them for another individual.\\n\\nHe appeals the district court’s exclusion of proposed expert testimony at trial, as well as\\n\\ndenial of his motion for judgment of acquittal. Rodriguez-Soriano challenges the district\\n\\ncourt’s determination that proposed expert testimony related to false confessions,\\n\\nexcluded pursuant to Federal Rule of Evidence 702, was not reliable or relevant, and that\\n\\nthe risk of prejudice outweighed its probative value, and thus it was also properly\\n\\nexcluded under Federal Rule of Evidence 403. We conclude that, for the reasons stated\\n\\nbelow, we need not determine whether the expert testimony was properly excluded\\n\\nbecause the evidence introduced at trial was insufficient to independently corroborate\\n\\nRodriguez-Soriano’s confession. We therefore reverse the district court’s judgment of\\n\\nconviction and remand for the entry of a judgment of acquittal.\\n\\n\\n\\n I.\\n\\n On July 25, 2015, Rodriguez-Soriano purchased two firearms, a Ruger P95 9mm\\n\\npistol and a Beemiller Hi-Point C9 9mm pistol, from a Northern Virginia location of\\n\\nGander Mountain Company, a licensed firearms dealer. At the time of purchase,\\n\\nRodriguez-Soriano completed Bureau of Alcohol, Tobacco and Firearms (“ATF”) Form\\n\\n4473, “Report of Multiple Sale or Other Disposition of Pistols and Revolvers,” which\\n\\nlisted him as the purchaser of both firearms. He marked the box indicating that he was\\n\\n 3\\n\\nthe actual buyer of the firearms listed on the form. 1 Gander Mountain completed another\\n\\nATF-required document, a “Multiple Sale Summary,” documenting that Rodriguez-\\n\\nSoriano purchased both firearms in a single transaction.\\n\\n In November 2016, a Washington, D.C. homicide detective sought the assistance\\n\\nof the ATF after receiving information that one of the firearms Rodriguez-Soriano\\n\\npurchased was used in a homicide. Based on this information, ATF Special Agent David\\n\\nBurkholder and ATF Task Force Officer Kevin McConnell interviewed Rodriguez-\\n\\nSoriano on two occasions about his gun purchases. 2\\n\\n Rodriguez-Soriano initially told the agents that the two firearms he purchased\\n\\nwere stolen sometime in late 2015 and described the circumstances surrounding their\\n\\ntheft. According to Rodriguez-Soriano, he didn’t know exactly when they were stolen,\\n\\nand didn’t notice they were missing until mid-November. At some point during that time\\n\\nperiod he found the closet where he kept the guns in disarray, but its condition did not\\n\\nalert him to the theft. He then revealed to the agents he suspected that a friend had\\n\\nbroken the lock on his basement door to enter and steal the guns, but he didn’t\\n\\n\\n\\n\\n 1\\n Form 4473 includes the statement, “You are not the actual buyer if you are\\nacquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the\\ndealer cannot transfer the firearm(s) to you.” J.A. 178. Rodriguez-Soriano also watched\\na short video on straw purchases entitled, “Don’t Lie for the Other Guy.” J.A. 318.\\n 2\\n At trial, defense counsel objected to Burkholder’s testimony as to what the\\ndetective revealed to him regarding the homicide. The court overruled the objection and\\npermitted his testimony because it was not offered for the truth of the matter, but rather to\\nexplain why the agents investigated Rodriguez-Soriano’s purchase of the guns. J.A. 192.\\n\\n 4\\n\\nimmediately notice the lock was broken and could not say which of his friends knew he\\n\\nhad firearms. He later identified one, who he referred to as “D.”\\n\\n When asked why he purchased two guns, Rodriguez-Soriano responded that the\\n\\nHi-Point pistol “kept jamming” at the shooting range, so he returned to purchase the other\\n\\nfirearm. The agents immediately knew this statement was false because the ATF forms\\n\\ndocumenting the purchase indicated that the two firearms had been purchased in a single\\n\\ntransaction. The agents then “pivoted,” expressing doubt as to the veracity of his story.\\n\\nJ.A. 420. The agents informed Rodriguez-Soriano that straw purchasers often say that\\n\\nguns they have purchased were stolen and informed him it was a crime punishable by up\\n\\nto five years in prison to lie to federal agents. They revealed that they knew he had\\n\\npurchased the guns for someone else because the person had told them so, the situation\\n\\nwas very serious because one of the guns had been used in a homicide, and they were\\n\\ngiving him the opportunity to “come clean.” J.A. 420-21. They characterized the\\n\\npurchase of the gun as “minimal” compared to what had been done with it, but warned\\n\\nhim about continuing to “go down the path” of lying about the guns being stolen. J.A.\\n\\n421.\\n\\n Rodriguez-Soriano then confessed to the agents that he purchased the two 9mm\\n\\nhandguns at the request of an acquaintance named “Ron.” He revealed that Ron\\n\\napproached him in late May 2015 about buying two handguns for him. Rodriguez-\\n\\nSoriano did not immediately accept Ron’s offer, but when their paths crossed again,\\n\\nRodriguez-Soriano told him, “I can do that favor for you.” Ron gave Rodriguez-Soriano\\n\\n$650 to buy two guns. After the purchase, Rodriguez-Soriano met Ron and his friend,\\n\\n 5\\n\\n“D,” in the parking lot of a convenience store where Rodriguez-Soriano entered their car,\\n\\nshowed them the guns, and left the guns on the back seat.\\n\\n After Rodriguez-Soriano confessed, the agents reviewed Form 4473 with him. He\\n\\nadmitted it was his name, information, and mark in the box indicating that he was the\\n\\nactual buyer of the firearms. At a follow-up interview conducted eighteen days later,\\n\\nRodriguez-Soriano confirmed the statements he made in his prior interview. Rodriguez-\\n\\nSoriano was indicted on one count of knowingly making a false statement to a licensed\\n\\nfirearms dealer in the acquisition of a firearm, stating that he was the actual purchaser of\\n\\nthe firearms when he was acquiring them for another individual, in violation of 18 U.S.C.\\n\\n§ 924(a)(1)(A).\\n\\n Agent Burkholder, an ATF records management employee, and Gander\\n\\nMountain’s former general manager, as the representative of the licensed firearms dealer,\\n\\ntestified for the government at trial. But the homicide detective and the men who,\\n\\naccording to Rodriguez-Soriano’s confession, gave him the cash for and took possession\\n\\nof the guns he purchased did not. The gun used in the homicide was not introduced into\\n\\nevidence. Rodriguez-Soriano did not present any evidence in response to the\\n\\ngovernment’s case. He instead moved for a judgment of acquittal under Federal Rule of\\n\\nCriminal Procedure 29, arguing that the evidence was insufficient to support his\\n\\nconviction because the only evidence of criminal activity was Rodriguez-Soriano’s own\\n\\nuncorroborated statement to the ATF agents. The district court denied the motion,\\n\\nfinding that “given the other evidence surrounding his confession,” further corroboration\\n\\nwas not “legally necessary” because the government produced sufficient evidence as to\\n\\n 6\\n\\neach of the elements of the offense. J.A. 233-34; 239. The jury found Rodriguez-\\n\\nSoriano guilty of the offense charged.\\n\\n This appeal followed.\\n\\n\\n\\n II.\\n\\n This Court reviews de novo the district court’s denial of the motion for acquittal\\n\\nunder Federal Rule of Criminal Procedure 29. United States v. Jaensch, 665 F.3d 83, 93\\n\\n(4th Cir. 2001); Fed. R. Crim. P. 29. In reviewing a challenge to the sufficiency of the\\n\\nevidence, an appellate court must ask whether “there is substantial evidence, taking the\\n\\nview most favorable to the Government, to support” the conviction. Glasser v. United\\n\\nStates, 315 U.S. 60, 80 (1942). “[S]ubstantial evidence is evidence that a reasonable\\n\\nfinder of fact could accept as adequate and sufficient to support a conclusion of a\\n\\ndefendant’s guilt beyond a reasonable doubt.” United States v. Burgos, 94 F.3d 849, 862\\n\\n(4th Cir. 1996) (en banc); see also United States v. Kasai, 736 F. App’x 414, 415 (4th\\n\\nCir. 2018) (citing United States v. Cowden, 882 F.3d 464, 474 (4th Cir. 2018).\\n\\n“[A]ppellate reversal on grounds of insufficient evidence . . . will be confined “to cases\\n\\nwhere the prosecution’s failure is clear.” Burgos, 94 F.3d at 862 (citing Burks v. United\\n\\nStates, 437 U.S. 1, 17 (1978); see also United States v. Palomino-Coronado, 805 F.3d\\n\\n127, 130 (4th Cir. 2015); United States v. Green, 599 F.3d 360, 367 (4th Cir.), cert.\\n\\ndenied, 562 U.S. 913 (2010). The government may rely on circumstantial evidence and\\n\\ninferences, but it still must prove each element of an offense beyond a reasonable doubt.\\n\\nSee Burgos, 94 F.3d at 858–59.\\n\\n 7\\n\\n III.\\n\\n Rodriguez-Soriano contends that the district court erred in denying his motion for\\n\\nacquittal because the evidence presented at trial was insufficient to sustain a conviction.\\n\\nWe agree. The government presented no evidence other than Rodriguez-Soriano’s\\n\\nuncorroborated confession that his statement to a licensed firearms dealer regarding the\\n\\nidentity of the actual buyer of the firearms was false.\\n\\n A.\\n\\n Section 924(a)(1) provides in pertinent part:\\n\\n [W]hoever knowingly makes any false statement or representation with\\n respect to the information required by [Chapter 44 of Title 18 of the United\\n States Code] to be kept in the records of a person licensed under this\\n chapter or in applying for any license or exemption or relief from disability\\n under the provisions of this chapter . . . shall be fined under this title,\\n imprisoned not more than five years, or both.\\n\\n18 U.S.C. § 924(a)(1)(A).\\n\\n Section 924(a)(1)(A) prohibits individuals from knowingly making any false\\n\\nstatement or representation with respect to the information required to be kept in the\\n\\nrecords of a federally licensed firearms dealer. It applies to “straw purchases,” in which\\n\\nan ineligible buyer uses a “straw man” to purchase firearms. See United States v. Nelson,\\n\\n221 F.3d 1206, 1209-10 (11th Cir. 2000) (affirming § 924(a)(1)(A) conviction of\\n\\ndefendants who hired individuals to purchase firearms by falsely representing themselves\\n\\nto be the actual buyers when defendants supplied the money for the purchases and\\n\\nintended to possess the firearms). A false statement or representation on an ATF Form\\n\\n4473 as to the identity of the actual buyer of a firearm constitutes a violation of\\n\\n\\n 8\\n\\n§ 924(a)(1)(A). Nelson, 221 F.3d at 1209–10; United States v. Abramski, 778 F. Supp.2d\\n\\n678, 681 (W.D. Va. 2011), aff’d, 706 F.3d 307 (4th Cir. 2013).\\n\\n To establish a violation of § 924(a)(1)(A), the government must prove: (1) the\\n\\ndealer was a federally licensed firearms dealer at the time the offense occurred; (2) the\\n\\ndefendant made a false statement or representation in a record that the licensed firearm\\n\\ndealer was required by federal law to maintain; and (3) the defendant made the false\\n\\nstatement with knowledge of its falsity. United States v. Abramski, 706 F.3d 307, 316–17\\n\\n(4th Cir. 2013), aff’d, 573 U.S. 169 (2014). Thus, to convict Rodriguez-Soriano under\\n\\nthis statute, it was the government’s burden to prove that he falsely stated to the licensed\\n\\nfirearms dealer that he was purchasing the firearms for himself with the knowledge that\\n\\nthe statement was false. But the government has failed to meet its burden. Rodriguez-\\n\\nSoriano’s confession, without additional corroborative evidence, was insufficient to find\\n\\nhim guilty beyond a reasonable doubt.\\n\\n B.\\n\\n “It is a settled principle of the administration of criminal justice in the federal\\n\\ncourts that a conviction must rest upon firmer ground than the uncorroborated admission\\n\\nor confession of the accused.” United States v. Abu Ali, 528 F.3d 210, 234 (4th Cir.\\n\\n2008) (quoting Wong Sun v. United States, 371 U.S. 471, 488-89 (1963)); see also United\\n\\nStates v. Stephens, 482 F.3d 669, 672 (4th Cir. 2007) (criminal defendant’s conviction\\n\\ncannot rest entirely on an uncorroborated extrajudicial confession). The requirement for\\n\\ncorroboration “is rooted in ‘a long history of judicial experience with confessions and in\\n\\nthe realization that sound law enforcement requires police investigations which extend\\n 9\\n\\nbeyond the words of the accused.’” Wong Sun, 371 U.S. at 489 (quoting Smith v. United\\n\\nStates, 348 U.S. 147, 153 (1954)). This is so because “the doubt persists that the zeal of\\n\\nthe agencies of prosecution to protect the peace . . . or the aberration or weakness of the\\n\\naccused under the strain of suspicion may tinge or warp the facts of the confession.” Id.\\n\\nat 489 (citing Opper v. United States, 348 U.S. 84, 89-90 (1954)). Moreover, “there can\\n\\nbe no conviction of an accused in a criminal case upon an uncorroborated confession,”\\n\\nwhere the corroboration “wholly fails to include any substantial evidence of the corpus\\n\\ndelecti.” Yost v. United States, 157 F.2d 147, 150 (4th Cir. 1946). Thus, courts require\\n\\ncorroboration to “prevent confessions to crimes never committed and ‘convictions based\\n\\nupon untrue confessions alone.’” Abu Ali, 528 F.3d at 234 (quoting Warszower v. United\\n\\nStates, 312 U.S. 342, 347 (1941)). But “since this corroboration rule ‘infringe[s] on the\\n\\nprovince of the primary finder of facts, its application should be scrutinized lest the\\n\\nrestrictions it imposes surpass the dangers which gave rise to them.’” Id. (citing Smith,\\n\\n348 U.S. at 153).\\n\\n “Independent evidence adequately corroborates a confession if it ‘supports the\\n\\nessential facts admitted sufficiently to justify a jury inference of their truth;’ the facts\\n\\nadmitted ‘plus the other evidence besides the admission must, of course, be sufficient to\\n\\nfind guilt beyond a reasonable doubt.’” Abu Ali, 528 F.3d at 235 (citing Opper, 348 U.S.\\n\\nat 93); Stephens, 482 F.3d at 672. The corroborative evidence does not have to prove the\\n\\noffense beyond a reasonable doubt, or even by a preponderance. But there must be\\n\\nsubstantial independent evidence that the offense has been committed in the first\\n\\ninstance, and that the evidence as a whole proves beyond a reasonable doubt that the\\n\\n 10\\n\\ndefendant is guilty. Abu Ali, 528 F.3d at 235 (citing Smith, 348 U.S. at 156); Kasai, 736\\n\\nF. App’x at 415. Only after a defendant’s admissions have been corroborated by\\n\\nsufficient independent evidence may the government “prove the offense through the\\n\\nstatement of the accused.” Abu Ali, 528 F.3d at 235; Kasai, 736 F. App’x at 415. “The\\n\\ngovernment must establish each element of an offense, but may do so ‘by independent\\n\\nevidence or corroborated admissions,’ and ‘one mode of corroboration is for the\\n\\nindependent evidence to bolster the confession itself and thereby prove the offense\\n\\nthrough the statements of the accused.’” Abu Ali, 528 F.3d at 235 (citing Smith, 348 U.S.\\n\\nat 156).\\n\\n C.\\n\\n Applying these legal principles and the appropriate standard of review to the case\\n\\nat hand, we find that the government has failed to meet its burden to prove that\\n\\nRodriguez-Soriano knowingly made a false statement to the firearms dealer as to the\\n\\nidentity of the actual buyer of the firearms. There is no corroboration demonstrating that\\n\\nthe transaction was a straw purchase, and accordingly no substantial independent\\n\\nevidence that, together with the confession itself, proves Rodriguez-Soriano’s guilt\\n\\nbeyond a reasonable doubt. Neither party refutes that Rodriguez-Soriano was eligible to\\n\\nacquire firearms at the time he purchased them. And the ATF forms and the testimony of\\n\\nthe representative of the licensed firearms dealer, at best, prove only that he made a\\n\\nfacially legal purchase of two firearms. It was the government’s burden to prove that\\n\\nRodriguez-Soriano knowingly committed a crime by falsely stating that he was buying\\n\\nthe guns for himself. The government contends that additional independent evidence\\n\\n 11\\n\\npresented at trial sufficiently corroborated his confession, and this corroborating\\n\\nevidence, together with the confession itself, was sufficient to sustain his conviction. We\\n\\ndisagree.\\n\\n In reaching this conclusion, we find the facts in Stephens, 482 F.3d 669,\\n\\nparticularly instructive. There, an officer on patrol heard four to five gunshots coming\\n\\nfrom a nearby street. He turned in the direction of the shots and within thirty seconds\\n\\nobserved a man, later identified as Stephens, crossing the street. Stephens ran when he\\n\\nsaw the officer, and was later apprehended inside a nearby house. The officer retraced\\n\\nthe path of pursuit and found a revolver containing five spent shell casings lying in the\\n\\ngrass near where he first saw Stephens. Id. at 671.\\n\\n Upon being taken into custody, Stephens was interviewed by two ATF agents. He\\n\\ntold them that approximately two to three months earlier, a local drug dealer known as\\n\\n“Red” fronted him a quantity of cocaine for which he was to pay $1,500. Stephens was\\n\\nunable to repay Red because his wife had consumed the cocaine. Stephens heard on the\\n\\nstreet that Red intended to kill him because he failed to pay, and later that evening, when\\n\\nhe drove past Red and his associates, someone in the group fired a shot at him. Stephens\\n\\nretrieved his gun and fired the shots the officer heard at Red’s vehicle, a white Mazda,\\n\\nwhen he saw it on the street. Two months after his initial statement to the agents,\\n\\nStephens repeated his statement in a proffer to the government. Id.\\n\\n But when Stephens took the stand in his own defense at trial, he testified that he\\n\\nhad lied to the ATF agents after his arrest and in his proffer. He stated that on the night\\n\\nin question, he was sitting on his grandmother’s porch when an individual approached\\n\\n 12\\n\\nand offered to sell him a handgun for $75. Stephens paid $60 for the firearm, and then\\n\\nwalked to a friend’s house where he fired the gun into the air. He explained that he lied\\n\\nabout his association with Red in hopes he would be released on bond, or released so he\\n\\ncould provide information about Red’s drug dealing activities. Stephens denied having\\n\\nany connection to Red, that he was involved in drug sales, or that he owed anyone for\\n\\ndrugs. Id.\\n\\n Stephens’ motion for a judgment of acquittal was denied, id. at 672, and a jury\\n\\nfound him guilty of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, and\\n\\nof using, carrying, and discharging a firearm in relation to a drug trafficking crime, in\\n\\nviolation of 18 U.S.C. § 924(c)(1)(A)(iii). Id. at 670. But on appeal, this Court reversed,\\n\\nfinding that the evidence was insufficient to corroborate his confession to the ATF agents\\n\\nand thereby establish his guilt of the offenses. This Court noted that further law\\n\\nenforcement investigation “might have served to fortif[y]” the truth of Stephens’\\n\\nconfession. But the ATF agent, who was familiar with the city’s drug trade and knew of\\n\\na drug dealer named Red who drove a white Mazda, could not establish any connection\\n\\nbetween Stephens and Red, and his corroboration of those details from Stephens’\\n\\nstatement did not establish the necessary link between Stephens and Red to prove the two\\n\\nwere engaged in a conspiracy to sell cocaine. Id. at 673.\\n\\n If Stephens sets the outer bounds of the corroboration rule, the evidence here is\\n\\nwell within it. Here, the government contends that four pieces of evidence corroborate\\n\\nRodriguez-Soriano’s confession that he made a straw purchase: (1) the guns he\\n\\npurchased were no longer in his possession; (2) he lied to the agents about buying the\\n 13\\n\\nfirearms in two separate transactions; (3) he made inconsistent and contradictory\\n\\nstatements about the alleged theft of the guns; and (4) he reaffirmed his confession in a\\n\\nsubsequent interview. The government would have us conclude that under the applicable\\n\\nstandard of review, despite the absence of testimony from the homicide detective and the\\n\\nother parties involved in the alleged straw purchase, and the government’s failure to\\n\\nintroduce the gun into evidence, it still produced substantial independent evidence that,\\n\\ntogether with the evidence as a whole, was sufficient for the jury to find Rodriguez-\\n\\nSoriano guilty beyond a reasonable doubt. But the government’s argument fails because\\n\\nall of the evidence the government claims corroborates Rodriguez-Soriano’s confession\\n\\narises from his own statements to law enforcement.\\n\\n At the time Rodriguez-Soriano told the agents he no longer had the guns, Agent\\n\\nBurkholder had already received information, independent of Rodriguez-Soriano’s\\n\\nstatement, that the gun had been used by a third party in a homicide. But given that\\n\\nAgent Burkholder’s testimony regarding the use of the gun to commit a murder was not\\n\\noffered at trial for the truth of the matter asserted, but rather was admitted solely to\\n\\nexplain what prompted the investigation of the gun purchases, the sole evidence at trial\\n\\nthat Rodriguez-Soriano was no longer in possession of the guns arose from Rodriguez-\\n\\nSoriano’s statement, and therefore was not an independent corroboration of the straw\\n\\npurchase.\\n\\n Given the limited purpose for which the jury could consider Agent Burkholder’s\\n\\ntestimony, the remaining evidence the government advances as corroborative is simply\\n\\ninadequate, as it does not prove that Rodriguez-Soriano knowingly made a false\\n\\n 14\\n\\nstatement. That Rodriguez-Soriano no longer possessed the firearms at the time of the\\n\\ninterview did not itself indicate that he knowingly misrepresented he was the actual\\n\\nbuyer. And while his later, inconsistent explanations as to why he purchased the firearms\\n\\nor how they were stolen may suggest that he lied to the ATF agents, they do not establish\\n\\nthat he knowingly made a false statement at the time of purchase, as required under\\n\\n§ 924(a)(1)(A).\\n\\n The government would also have us construe Rodriguez-Soriano’s statements\\n\\nmade in his subsequent interview as a separate confession, and determine that each\\n\\nconfession corroborates the other. But the government cannot rely on a second\\n\\nuncorroborated confession as independent evidence corroborating an initial one,\\n\\nparticularly where the second does nothing to “fortif[y] the truth of the confession” by\\n\\noffering further corroboration that a crime was committed. See Stephens, 482 F.3d at\\n\\n672-73. And where the only evidence of the corpus delecti is an uncorroborated\\n\\nconfession, the evidence is insufficient as a matter of law. See Yost, 157 F.2d at 150.\\n\\n The facts of this case and other cases like it where the “confessions or admissions\\n\\nconstitute[] the only evidence linking [a defendant] to criminal conduct,” demonstrate the\\n\\nneed for the uncorroborated confession rule – “to prevent confessions to crimes never\\n\\ncommitted.” Warszower, 312 U.S. at 347. See Stephens, 482 F.3d at 672 (government\\n\\npresented no evidence other than defendant’s statement to establish his connection to a\\n\\ndrug conspiracy). In Stephens, this Court noted that further investigation by law\\n\\nenforcement might have fortified the truth of the defendant’s confession. 482 F.3d at\\n\\n673. Here, it appears that the prosecutor knew the identities of potential corroborating\\n 15\\n\\nwitnesses, yet we can only speculate as to why evidence corroborating Rodriguez-\\n\\nSoriano’s alleged offense was not presented at his trial. But regardless of the reason, we\\n\\nconclude that without the necessary corroboration of the confession, the prosecution has\\n\\nfailed to present sufficient independent evidence that a crime was committed, and where,\\n\\nas here, the prosecutor’s failure to do so is “clear,” see Burgos, 94 F.3d at 862, the\\n\\nabsence of substantial independent evidence cannot sustain the jury’s verdict and requires\\n\\nreversal. Stephens, 482 F.3d at 673.\\n\\n\\n\\n IV.\\n For these reasons, we find that the evidence presented at trial was insufficient to\\n\\nsupport the jury’s verdict. Given that the evidence was insufficient to corroborate\\n\\nRodriguez-Soriano’s confession, and thus insufficient to establish his guilt of the offense\\n\\nbeyond a reasonable doubt, we decline to address Rodriguez-Soriano’s claim that the\\n\\ndistrict court erred in refusing to permit the expert proposed testimony regarding false\\n\\nconfessions. We reverse Rodriguez-Soriano’s conviction and remand with instructions to\\n\\nenter a judgment of acquittal.\\n\\n\\n\\n CONVICTION\\n REVERSED AND REMANDED\\n\\n\\n\\n\\n 16\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4419705/\", \"author_raw\": \"Conviction reversed and remanded by published opinion. Chief Judge Gregory wrote the\"}, {\"author\": \"RICHARDSON, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"RICHARDSON, Circuit Judge, dissenting:\\n\\n Historically, juries have given tremendous weight to defendants’ confessions when\\n\\ndetermining guilt, often considering them to be incontrovertible evidence. Juries today\\n\\ncontinue to do so. For this reason, under longstanding Supreme Court precedent, a\\n\\nprosecutor seeking to admit a defendant’s out-of-court confession must provide evidence\\n\\nshowing that the confession is trustworthy. But that evidence need not independently\\n\\nprove the “corpus delicti”—that is, the “body of the crime”—as American common law\\n\\nonce required. Nor must it corroborate every element of the crime at issue. Rather, the\\n\\nprosecutor need only offer independent evidence that tends to show that the confession is\\n\\ntrustworthy. My colleagues in the Majority rewrite this rule, reviving and expanding the\\n\\nold corpus delicti doctrine by demanding evidentiary proof, independent of his many\\n\\nadmissions, that Rodriguez-Soriano violated each element of the crime. I respectfully\\n\\ndissent.\\n\\n I.\\n\\n In the seventeenth century, the English courts established a common law rule\\n\\nrequiring the prosecutor in a homicide case to prove the corpus delicti through evidence\\n\\nother than a defendant’s out-of-court confession. 1 Known as the corpus delicti doctrine,\\n\\n\\n 1\\n Roman law similarly provided that a judgment could not rest just on a naked\\nextrajudicial confession, which was considered to be semiplena probatio (i.e., “half\\nproof”) unless “voluntarily made, in the presence of the injured party, or, if reiterated at\\ndifferent times in his absence, and persisted in.” 1 SIMON GREENLEAF & SIMON\\nGREENLEAF CROSWELL, A TREATISE ON THE LAW OF EVIDENCE § 217, at 278 (14th ed.\\n1883); see also Robert E. Ireton, Confessions and Corpus Delicti, 6 DET. L. REV. 92, 93–\\n94 (1936).\\n\\n\\n 17\\n\\nthe rule sought to ensure that a defendant would not be punished for allegedly killing\\n\\nsomeone who was actually alive but missing. 2 To avoid this result, prosecutors seeking\\n\\nto prove homicide needed corroboration, and the quintessential example has always been\\n\\nthe body of the victim. But requiring a body in every homicide case would have led to\\n\\nuntenable and unjust results. So the prosecution was not always required to provide a\\n\\ncorpse to prove the corpus delicti of a homicide. Captain Green’s Trial, 14 How. St. Tr.\\n\\n1199, 1246 (Scot. Adm. 1705); see also United States v. Gibert, 25 F. Cas. 1287, 1290\\n\\n(C.C.D. Mass. 1834) (Story, J.) (noting that categorically requiring a body “would\\n\\namount to a universal condonation of all murders committed on the high seas”).\\n\\nUltimately, English courts were cautious in adopting the corpus delicti doctrine: some\\n\\nrejected it altogether, while others applied it only in murder and bigamy prosecutions. 3\\n\\nWIGMORE, EVIDENCE § 2070, at 2778–79 (1904); Note, Proof of the Corpus Delicti\\n\\nAliunde the Defendant’s Confession, 103 U. PA. L. REV. 638, 640 (1955).\\n\\n Many American courts enthusiastically adopted the corpus delicti doctrine,\\n\\nexpanding it well beyond its historical roots. For instance, they applied it to nonviolent\\n\\ncrimes. See, e.g., Forte v. United States, 94 F.2d 236 (D.C. Cir. 1937) (knowing\\n\\ninterstate transportation of a stolen motor vehicle). And they expanded the concept of the\\n\\n 2\\n Some credit Lord Hale as the originator of the doctrine, as he wrote: “I would\\nnever convict any person of murder or manslaughter, unless the fact were proved to be\\ndone, or at least the body found dead.” 2 MATTHEW HALE, HISTORIA PLACITORUM\\nCORONÆ: THE HISTORY OF THE PLEAS OF THE CROWN 290 (S. Emlyn ed., 1736). Hale\\njustified his position on two stories where purported murder victims returned to town,\\nvery much alive, after others had been executed for their “murders.” Id. Both stories,\\nhowever, involved prosecutions based on circumstantial evidence rather than false\\nconfessions.\\n\\n 18\\n\\n“corpus delicti” to include not just the physical facts of the crime, but also criminal\\n\\nagency; in the example of a murder case, not only must the victim be dead, the evidence\\n\\nmust suggest foul play as opposed to a natural or accidental death. See id. at 243–44.\\n\\n In 1954, the Supreme Court rejected the expanding corpus delicti doctrine. Opper\\n\\nv. United States, 348 U.S. 84, 93 (1954); see also United States v. Abu Ali, 528 F.3d 210,\\n\\n235 (4th Cir. 2008) (“[T]he Supreme Court resolved this question for federal courts by\\n\\nrejecting the corpus delicti rule . . . .”). The Court instead adopted a more limited\\n\\nrequirement that the prosecution introduce independent evidence that “would tend to\\n\\nestablish the trustworthiness of the [defendant’s] statement.” Opper, 348 U.S. at 93.\\n\\nThis evidence “need not be sufficient, independent of the statements, to establish the\\n\\ncorpus delicti.” Id. Instead, it need only “support[] the essential facts admitted\\n\\nsufficiently to justify a jury inference of their truth.” Id. Of course, the prosecution must\\n\\nstill produce independent evidence to establish beyond a reasonable doubt any elements\\n\\nnot addressed by the confession. Id. at 94.\\n\\n The Court elaborated on the degree of corroboration required in Smith v. United\\n\\nStates, a companion case handed down the same day as Opper. 348 U.S. 147 (1954). It\\n\\nexplained that all “elements of the offense must be established by independent evidence\\n\\nor corroborated admissions, but one available mode of corroboration is for the\\n\\nindependent evidence to bolster the confession itself and thereby prove the offense\\n\\n‘through’ the statements of the accused.” Id. at 156. As the Supreme Court would later\\n\\nexplain, “extrinsic proof [is] sufficient which merely fortifies the truth of the confession,\\n\\n\\n\\n 19\\n\\nwithout independently establishing the crime charged.” Wong Sun v. United States, 371\\n\\nU.S. 471, 489 (1963).\\n\\n The facts of Opper and Smith show just how tenuous this corroborating evidence\\n\\ncan be. In Opper, the defendant was convicted of bribery for paying a government\\n\\nemployee to select his stock of goggles for purchase by the Air Force. The defendant\\n\\nadmitted to the FBI that he had handed the employee cash, but insisted it was merely a\\n\\nfriendly loan. And the prosecution’s independent evidence only proved that the\\n\\ndefendant cashed a check for himself (corresponding to an amount he had admitted he\\n\\nhad given to the employee), that there was contact between the defendant and the\\n\\nemployee, and that the initial rejection of the defendant’s goggles was overturned at the\\n\\nemployee’s urging. This independent evidence tended to support only circumstantially\\n\\nthe defendant’s single admission that he paid the money. The Supreme Court nonetheless\\n\\nheld that there was “substantial independent evidence to establish directly the truthfulness\\n\\nof [the] petitioner’s admission.” Id. at 93–94. And the jury was therefore justified in\\n\\nrelying on this extrajudicial admission.\\n\\n The connection in Smith was even more attenuated. There, the defendant was\\n\\naccused of criminal tax evasion during a five-year period. The government’s case\\n\\nsubstantially relied on one statement by the defendant describing his specific net worth at\\n\\nthe beginning of this period—which, if proven, would show that his reported income was\\n\\ntoo low to explain his high net worth at the end of this period. The Supreme Court held\\n\\nthat the government had sufficiently corroborated this lone admission in two independent\\n\\nways.\\n\\n 20\\n\\n First, the government had bolstered the admission through his prior tax filings,\\n\\nwhich showed only minimal income. 348 U.S. at 157. The Court determined that those\\n\\ntax filings corroborated another extrajudicial statement by the defendant about his limited\\n\\nwork history, which together adequately corroborated that the defendant had a low net\\n\\nworth at the beginning of the relevant period. And the general suggestion that he had a\\n\\nlow net worth was enough to corroborate the specific net worth statement to which the\\n\\ndefendant had admitted.\\n\\n Second, and independently, the Court in Smith held that the government\\n\\nadequately corroborated his opening net worth by presenting evidence that “tend[ed] to\\n\\nestablish the crime of tax evasion without resort to the net worth computations.” Id. at\\n\\n158. The government had presented evidence that, during the five-year period, the\\n\\ndefendant and his wife started a business that kept no financial records, opened many\\n\\nbank accounts, added a lot of money to those bank accounts, and made other substantial\\n\\nexpenditures. The Court noted that these acts “might not, of themselves, suffice to\\n\\nsupport a conviction of tax evasion without evidence of a starting point indicating a lack\\n\\nof funds from which these payments might have come.” Id. at 159. Though these facts\\n\\nwere only loosely related to the net-worth statement that the prosecution sought to\\n\\ncorroborate, the Court still held that this evidence was sufficient. Id.\\n\\n II.\\n\\n Here Rodriguez-Soriano was charged with making a false statement about being\\n\\nthe actual purchaser during a firearm purchase in violation of 18 U.S.C. § 924(a)(1)(A).\\n\\nThe elements of this crime require the defendant to (1) knowingly make a false statement\\n\\n 21\\n\\nor representation (2) to a federal firearms licensee (3) about the information that the law\\n\\nrequires such licensees to keep. Rodriguez-Soriano confessed to all of his conduct in\\n\\ncommitting this crime: he admitted that he had agreed to buy two guns for an\\n\\nacquaintance named Ron, that he bought Ruger and Hi-Point 9mm handguns in July 2015\\n\\nat Gander Mountain, that he filled out and signed ATF Form 4473 when buying the\\n\\nhandguns (stating that the guns were for himself), and that he gave the two guns to Ron\\n\\nright after making the purchase.\\n\\n Evidence independent of his confession confirmed the essential facts to which\\n\\nRodriguez-Soriano admitted. This independent evidence confirmed that he did in fact\\n\\npurchase two guns at the same time, that the guns he bought were Ruger and Hi-Point\\n\\n9mm handguns, that he did so in July 2015 at Gander Mountain, and that he filled out and\\n\\nsigned ATF Form 4473 when he bought the guns.\\n\\n Nothing more is required. The independent evidence need not confirm every\\n\\ndetail from the defendant’s admissions. Rather, “independent corroboration of one part\\n\\nof the statement may corroborate the entire statement.” United States v. Brown, 617 F.3d\\n\\n857, 863 (6th Cir. 2010) (citing Smith, 348 U.S. at 156).\\n\\n Indeed, we have continually acknowledged that corroborative evidence need not\\n\\nestablish every element of a criminal offense. United States v. Stephens, 482 F.3d 669,\\n\\n672 (4th Cir. 2007) (citing United States v. Waller, 326 F.2d 314, 315 (4th Cir. 1963)).\\n\\nAn element of the crime may be proven entirely based on the defendant’s confession so\\n\\nlong as the confession is otherwise corroborated. See United States v. Irving, 452 F.3d\\n\\n110, 118 (2d Cir. 2006) (noting that a defendant’s “confession, if proven reliable, may\\n\\n 22\\n\\nserve as the only evidence reaching the corpus delicti”); United States v. Fujii, 301 F.3d\\n\\n535, 541 (7th Cir. 2002) (acknowledging that “some elements of the offense may be\\n\\nproven entirely on the basis of” the corroborated confession); United States v. Gravitt,\\n\\n484 F.2d 375, 381 (5th Cir. 1973) (“If there is extrinsic evidence tending to corroborate\\n\\nthe confession, the confession as a whole is admissible; and some elements of the offense\\n\\nmay be proven entirely on the basis of a corroborated confession.”); United States v.\\n\\nWilson, 436 F.2d 122, 124 (3d Cir. 1971) (“[T]o corroborate a confession or admission, it\\n\\nis unnecessary for the prosecutor to introduce substantial independent evidence of each\\n\\nelement of the offense with which the defendant is charged.”). The independent evidence\\n\\nneed only reinforce the credibility of the defendant’s statement, not independently\\n\\nestablish each element of the offense.\\n\\n The Majority dismisses all of this, concluding that “[t]here is no corroboration\\n\\ndemonstrating that the transaction was a straw purchase . . . .” Majority Op. at 11. 3 In\\n\\ndoing so, the Majority requires corroboration of Rodriguez-Soriano’s mental state (i.e.,\\n\\nthat he intended to buy the guns for another person). This misconstrues the correct\\n\\nstandard, instead describing a new rule that requires formal proof of a crime’s every\\n\\nelement. But only the essential facts of the confession must be corroborated, not every\\n\\n 3\\n The Majority’s language is telling: it variously complains that the corroborative\\nevidence does not “demonstrat[e],” “prove,” and “establish.” Majority Op. at 11, 15. But\\nthe Supreme Court has held that the corroborative evidence need not itself “establish”\\nanything—it is enough if it “tends to establish” the trustworthiness of the confession by\\nbolstering its essential facts. Opper, 348 U.S. at 93 (emphasis added); see also Warring\\nv. United States, 222 F.2d 906, 911 (4th Cir. 1955) (noting that “corroboration is needed\\nonly to allay suspicion of the veracity of the admission”).\\n\\n\\n 23\\n\\nelement of the offense. It is thus of no consequence that he engaged in “a facially legal\\n\\npurchase.”\\n\\n And even if corroboration of Rodriguez-Soriano’s mental state is required, we in\\n\\nfact have independent corroborative facts that tend, though only weakly, to show that he\\n\\ndid not buy the guns for himself. First, consider the simple fact that a 23-year-old\\n\\nsimultaneously bought two inexpensive, interchangeable handguns for over $500. Next,\\n\\nRodriguez-Soriano did not produce the guns when the agents arrived to ask about them—\\n\\ntending to show that he no longer had them, and accordingly, that he never intended to\\n\\nkeep them in the first place. The Majority contends that the prosecution needed\\n\\nRodriguez-Soriano’s admission to prove this fact. Not so. It is an objective fact that\\n\\nagents visited Rodriguez-Soriano and that he did not produce the guns. His admission\\n\\nwas unnecessary to prove that point. Cf. Smith, 348 U.S. at 159 (finding a defendant’s\\n\\nlack of business records to be corroborative evidence of the crime of tax evasion).\\n\\nFinally, ATF Form 4473 indirectly corroborates his confession by tending to show the\\n\\nstory he first gave the agents—that a friend broke into his house and stole the guns—was\\n\\nfalse. That is because the form shows that he bought both guns together, something he\\n\\ninitially lied about but later admitted. Cf. id. at 157–59 (using a corroborated admission\\n\\nto corroborate another admission).\\n\\n Despite all this, the Majority suggests that United States v. Stephens compels us to\\n\\noverturn the jury’s guilty verdict. Stephens involved a man who confessed to buying\\n\\ndrugs and shooting at a certain drug dealer’s car after being arrested near where several\\n\\ngunshots were heard. 482 F.3d at 671. But at trial, the man testified that he had lied to\\n\\n 24\\n\\nlaw enforcement about shooting at the drug dealer, and instead that he had merely fired a\\n\\ngun into the air to test it. He was convicted both of conspiracy to distribute cocaine and\\n\\nof using a firearm in relation to a drug trafficking crime. This Court reversed his\\n\\nconvictions, reasoning that there was inadequate corroborative evidence linking him to\\n\\nthe drug trade (or linking him to the drug dealer specifically): there was only evidence\\n\\nconnecting him to the firearm. Id. at 673. We concluded that the evidence that the man\\n\\nfired a gun outside did not sufficiently support the essential facts of the drug crimes for\\n\\nwhich he was convicted. And as such, we found his confession to be uncorroborated.\\n\\nBut while the prosecution in Stephens provided practically no evidence to help establish\\n\\nthe trustworthiness of the man’s initial confession, and no evidence at all that he was\\n\\ninvolved in the drug trade, the prosecution here provided independent evidence that\\n\\ncorroborated all of Rodriguez-Soriano’s conduct in committing the crime: the only thing\\n\\nthe prosecution purportedly failed to corroborate was his mental state when he filled out\\n\\nATF Form 4473. This corroborating evidence was more than enough to help establish\\n\\nhis candor, and accordingly, his confessions properly supported his conviction.\\n\\n * * *\\n\\n A defendant may not be convicted based solely on an uncorroborated confession.\\n\\nBut the law does not require a prosecutor to convict a defendant before a jury may hear\\n\\nhis confession. Instead, the law takes a middle ground between these two extremes,\\n\\nmerely requiring evidence that tends to establish the trustworthiness of the confession.\\n\\nThis rule helps to ensure that defendants are not convicted based on false confessions,\\n\\nwhile also not hampering the search for truth with an unreasonable evidentiary burden.\\n\\n 25\\n\\nAs the evidence offered here adequately corroborated Rodriguez-Soriano’s confessions, I\\n\\nrespectfully dissent.\\n\\n\\n\\n\\n 26\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4419705/\", \"author_raw\": \"RICHARDSON, Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"GREGORY"},"judge2":{"kind":"string","value":"RICHARDSON"},"judge3":{"kind":"string","value":"DUNCAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":4,"string":"4"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":2,"string":"2"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4642452/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":1,"string":"1"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Christopher RODRIGUEZ-SORIANO, A/K/A Christopher Soriano, A/K/A Christopher Soriano-Rodriguez, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-07-24\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-4291\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff – Appellee,\n\n v.\n\nCHRISTOPHER RODRIGUEZ-SORIANO, a/k/a Christopher Soriano, a/k/a\nChristopher Soriano-Rodriguez,\n\n Defendant – Appellant.\n\n\nAppeal from the United States District Court for the Eastern District of Virginia, at\nAlexandria. Liam O’Grady, District Judge. (1:17–cr–00197–LO–1)\n\n\nArgued: January 30, 2019 Decided: July 24, 2019\n\n\nBefore GREGORY, Chief Judge, RICHARDSON, Circuit Judge, and DUNCAN, Senior\nCircuit Judge.\n\n\nConviction reversed and remanded by published opinion. Chief Judge Gregory wrote the\nopinion, in which Senior Judge Duncan joined. Judge Richardson wrote a dissenting\nopinion.\n\n\nARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\nAlexandria, Virginia, for Appellant. James L. Trump, OFFICE OF THE\nUNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:\nGeremy C. Kamens, Federal Public Defender, Shannon Quill, Assistant Federal Public\nDefender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for\nAppellant. G. Zach Terwilliger, United States Attorney, Christopher K. Grieco, Special\n\nAssistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,\nAlexandria, Virginia, for Appellee.\n\n\n\n\n 2\n\nGREGORY, Chief Judge:\n\n Christopher Rodriguez-Soriano was found guilty of knowingly making a false\n\nstatement to a licensed firearms dealer in the acquisition of a firearm, stating that he was\n\nthe actual purchaser of the firearms when he was acquiring them for another individual.\n\nHe appeals the district court’s exclusion of proposed expert testimony at trial, as well as\n\ndenial of his motion for judgment of acquittal. Rodriguez-Soriano challenges the district\n\ncourt’s determination that proposed expert testimony related to false confessions,\n\nexcluded pursuant to Federal Rule of Evidence 702, was not reliable or relevant, and that\n\nthe risk of prejudice outweighed its probative value, and thus it was also properly\n\nexcluded under Federal Rule of Evidence 403. We conclude that, for the reasons stated\n\nbelow, we need not determine whether the expert testimony was properly excluded\n\nbecause the evidence introduced at trial was insufficient to independently corroborate\n\nRodriguez-Soriano’s confession. We therefore reverse the district court’s judgment of\n\nconviction and remand for the entry of a judgment of acquittal.\n\n\n\n I.\n\n On July 25, 2015, Rodriguez-Soriano purchased two firearms, a Ruger P95 9mm\n\npistol and a Beemiller Hi-Point C9 9mm pistol, from a Northern Virginia location of\n\nGander Mountain Company, a licensed firearms dealer. At the time of purchase,\n\nRodriguez-Soriano completed Bureau of Alcohol, Tobacco and Firearms (“ATF”) Form\n\n4473, “Report of Multiple Sale or Other Disposition of Pistols and Revolvers,” which\n\nlisted him as the purchaser of both firearms. He marked the box indicating that he was\n\n 3\n\nthe actual buyer of the firearms listed on the form. 1 Gander Mountain completed another\n\nATF-required document, a “Multiple Sale Summary,” documenting that Rodriguez-\n\nSoriano purchased both firearms in a single transaction.\n\n In November 2016, a Washington, D.C. homicide detective sought the assistance\n\nof the ATF after receiving information that one of the firearms Rodriguez-Soriano\n\npurchased was used in a homicide. Based on this information, ATF Special Agent David\n\nBurkholder and ATF Task Force Officer Kevin McConnell interviewed Rodriguez-\n\nSoriano on two occasions about his gun purchases. 2\n\n Rodriguez-Soriano initially told the agents that the two firearms he purchased\n\nwere stolen sometime in late 2015 and described the circumstances surrounding their\n\ntheft. According to Rodriguez-Soriano, he didn’t know exactly when they were stolen,\n\nand didn’t notice they were missing until mid-November. At some point during that time\n\nperiod he found the closet where he kept the guns in disarray, but its condition did not\n\nalert him to the theft. He then revealed to the agents he suspected that a friend had\n\nbroken the lock on his basement door to enter and steal the guns, but he didn’t\n\n\n\n\n 1\n Form 4473 includes the statement, “You are not the actual buyer if you are\nacquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the\ndealer cannot transfer the firearm(s) to you.” J.A. 178. Rodriguez-Soriano also watched\na short video on straw purchases entitled, “Don’t Lie for the Other Guy.” J.A. 318.\n 2\n At trial, defense counsel objected to Burkholder’s testimony as to what the\ndetective revealed to him regarding the homicide. The court overruled the objection and\npermitted his testimony because it was not offered for the truth of the matter, but rather to\nexplain why the agents investigated Rodriguez-Soriano’s purchase of the guns. J.A. 192.\n\n 4\n\nimmediately notice the lock was broken and could not say which of his friends knew he\n\nhad firearms. He later identified one, who he referred to as “D.”\n\n When asked why he purchased two guns, Rodriguez-Soriano responded that the\n\nHi-Point pistol “kept jamming” at the shooting range, so he returned to purchase the other\n\nfirearm. The agents immediately knew this statement was false because the ATF forms\n\ndocumenting the purchase indicated that the two firearms had been purchased in a single\n\ntransaction. The agents then “pivoted,” expressing doubt as to the veracity of his story.\n\nJ.A. 420. The agents informed Rodriguez-Soriano that straw purchasers often say that\n\nguns they have purchased were stolen and informed him it was a crime punishable by up\n\nto five years in prison to lie to federal agents. They revealed that they knew he had\n\npurchased the guns for someone else because the person had told them so, the situation\n\nwas very serious because one of the guns had been used in a homicide, and they were\n\ngiving him the opportunity to “come clean.” J.A. 420-21. They characterized the\n\npurchase of the gun as “minimal” compared to what had been done with it, but warned\n\nhim about continuing to “go down the path” of lying about the guns being stolen. J.A.\n\n421.\n\n Rodriguez-Soriano then confessed to the agents that he purchased the two 9mm\n\nhandguns at the request of an acquaintance named “Ron.” He revealed that Ron\n\napproached him in late May 2015 about buying two handguns for him. Rodriguez-\n\nSoriano did not immediately accept Ron’s offer, but when their paths crossed again,\n\nRodriguez-Soriano told him, “I can do that favor for you.” Ron gave Rodriguez-Soriano\n\n$650 to buy two guns. After the purchase, Rodriguez-Soriano met Ron and his friend,\n\n 5\n\n“D,” in the parking lot of a convenience store where Rodriguez-Soriano entered their car,\n\nshowed them the guns, and left the guns on the back seat.\n\n After Rodriguez-Soriano confessed, the agents reviewed Form 4473 with him. He\n\nadmitted it was his name, information, and mark in the box indicating that he was the\n\nactual buyer of the firearms. At a follow-up interview conducted eighteen days later,\n\nRodriguez-Soriano confirmed the statements he made in his prior interview. Rodriguez-\n\nSoriano was indicted on one count of knowingly making a false statement to a licensed\n\nfirearms dealer in the acquisition of a firearm, stating that he was the actual purchaser of\n\nthe firearms when he was acquiring them for another individual, in violation of 18 U.S.C.\n\n§ 924(a)(1)(A).\n\n Agent Burkholder, an ATF records management employee, and Gander\n\nMountain’s former general manager, as the representative of the licensed firearms dealer,\n\ntestified for the government at trial. But the homicide detective and the men who,\n\naccording to Rodriguez-Soriano’s confession, gave him the cash for and took possession\n\nof the guns he purchased did not. The gun used in the homicide was not introduced into\n\nevidence. Rodriguez-Soriano did not present any evidence in response to the\n\ngovernment’s case. He instead moved for a judgment of acquittal under Federal Rule of\n\nCriminal Procedure 29, arguing that the evidence was insufficient to support his\n\nconviction because the only evidence of criminal activity was Rodriguez-Soriano’s own\n\nuncorroborated statement to the ATF agents. The district court denied the motion,\n\nfinding that “given the other evidence surrounding his confession,” further corroboration\n\nwas not “legally necessary” because the government produced sufficient evidence as to\n\n 6\n\neach of the elements of the offense. J.A. 233-34; 239. The jury found Rodriguez-\n\nSoriano guilty of the offense charged.\n\n This appeal followed.\n\n\n\n II.\n\n This Court reviews de novo the district court’s denial of the motion for acquittal\n\nunder Federal Rule of Criminal Procedure 29. United States v. Jaensch, 665 F.3d 83, 93\n\n(4th Cir. 2001); Fed. R. Crim. P. 29. In reviewing a challenge to the sufficiency of the\n\nevidence, an appellate court must ask whether “there is substantial evidence, taking the\n\nview most favorable to the Government, to support” the conviction. Glasser v. United\n\nStates, 315 U.S. 60, 80 (1942). “[S]ubstantial evidence is evidence that a reasonable\n\nfinder of fact could accept as adequate and sufficient to support a conclusion of a\n\ndefendant’s guilt beyond a reasonable doubt.” United States v. Burgos, 94 F.3d 849, 862\n\n(4th Cir. 1996) (en banc); see also United States v. Kasai, 736 F. App’x 414, 415 (4th\n\nCir. 2018) (citing United States v. Cowden, 882 F.3d 464, 474 (4th Cir. 2018).\n\n“[A]ppellate reversal on grounds of insufficient evidence . . . will be confined “to cases\n\nwhere the prosecution’s failure is clear.” Burgos, 94 F.3d at 862 (citing Burks v. United\n\nStates, 437 U.S. 1, 17 (1978); see also United States v. Palomino-Coronado, 805 F.3d\n\n127, 130 (4th Cir. 2015); United States v. Green, 599 F.3d 360, 367 (4th Cir.), cert.\n\ndenied, 562 U.S. 913 (2010). The government may rely on circumstantial evidence and\n\ninferences, but it still must prove each element of an offense beyond a reasonable doubt.\n\nSee Burgos, 94 F.3d at 858–59.\n\n 7\n\n III.\n\n Rodriguez-Soriano contends that the district court erred in denying his motion for\n\nacquittal because the evidence presented at trial was insufficient to sustain a conviction.\n\nWe agree. The government presented no evidence other than Rodriguez-Soriano’s\n\nuncorroborated confession that his statement to a licensed firearms dealer regarding the\n\nidentity of the actual buyer of the firearms was false.\n\n A.\n\n Section 924(a)(1) provides in pertinent part:\n\n [W]hoever knowingly makes any false statement or representation with\n respect to the information required by [Chapter 44 of Title 18 of the United\n States Code] to be kept in the records of a person licensed under this\n chapter or in applying for any license or exemption or relief from disability\n under the provisions of this chapter . . . shall be fined under this title,\n imprisoned not more than five years, or both.\n\n18 U.S.C. § 924(a)(1)(A).\n\n Section 924(a)(1)(A) prohibits individuals from knowingly making any false\n\nstatement or representation with respect to the information required to be kept in the\n\nrecords of a federally licensed firearms dealer. It applies to “straw purchases,” in which\n\nan ineligible buyer uses a “straw man” to purchase firearms. See United States v. Nelson,\n\n221 F.3d 1206, 1209-10 (11th Cir. 2000) (affirming § 924(a)(1)(A) conviction of\n\ndefendants who hired individuals to purchase firearms by falsely representing themselves\n\nto be the actual buyers when defendants supplied the money for the purchases and\n\nintended to possess the firearms). A false statement or representation on an ATF Form\n\n4473 as to the identity of the actual buyer of a firearm constitutes a violation of\n\n\n 8\n\n§ 924(a)(1)(A). Nelson, 221 F.3d at 1209–10; United States v. Abramski, 778 F. Supp.2d\n\n678, 681 (W.D. Va. 2011), aff’d, 706 F.3d 307 (4th Cir. 2013).\n\n To establish a violation of § 924(a)(1)(A), the government must prove: (1) the\n\ndealer was a federally licensed firearms dealer at the time the offense occurred; (2) the\n\ndefendant made a false statement or representation in a record that the licensed firearm\n\ndealer was required by federal law to maintain; and (3) the defendant made the false\n\nstatement with knowledge of its falsity. United States v. Abramski, 706 F.3d 307, 316–17\n\n(4th Cir. 2013), aff’d, 573 U.S. 169 (2014). Thus, to convict Rodriguez-Soriano under\n\nthis statute, it was the government’s burden to prove that he falsely stated to the licensed\n\nfirearms dealer that he was purchasing the firearms for himself with the knowledge that\n\nthe statement was false. But the government has failed to meet its burden. Rodriguez-\n\nSoriano’s confession, without additional corroborative evidence, was insufficient to find\n\nhim guilty beyond a reasonable doubt.\n\n B.\n\n “It is a settled principle of the administration of criminal justice in the federal\n\ncourts that a conviction must rest upon firmer ground than the uncorroborated admission\n\nor confession of the accused.” United States v. Abu Ali, 528 F.3d 210, 234 (4th Cir.\n\n2008) (quoting Wong Sun v. United States, 371 U.S. 471, 488-89 (1963)); see also United\n\nStates v. Stephens, 482 F.3d 669, 672 (4th Cir. 2007) (criminal defendant’s conviction\n\ncannot rest entirely on an uncorroborated extrajudicial confession). The requirement for\n\ncorroboration “is rooted in ‘a long history of judicial experience with confessions and in\n\nthe realization that sound law enforcement requires police investigations which extend\n 9\n\nbeyond the words of the accused.’” Wong Sun, 371 U.S. at 489 (quoting Smith v. United\n\nStates, 348 U.S. 147, 153 (1954)). This is so because “the doubt persists that the zeal of\n\nthe agencies of prosecution to protect the peace . . . or the aberration or weakness of the\n\naccused under the strain of suspicion may tinge or warp the facts of the confession.” Id.\n\nat 489 (citing Opper v. United States, 348 U.S. 84, 89-90 (1954)). Moreover, “there can\n\nbe no conviction of an accused in a criminal case upon an uncorroborated confession,”\n\nwhere the corroboration “wholly fails to include any substantial evidence of the corpus\n\ndelecti.” Yost v. United States, 157 F.2d 147, 150 (4th Cir. 1946). Thus, courts require\n\ncorroboration to “prevent confessions to crimes never committed and ‘convictions based\n\nupon untrue confessions alone.’” Abu Ali, 528 F.3d at 234 (quoting Warszower v. United\n\nStates, 312 U.S. 342, 347 (1941)). But “since this corroboration rule ‘infringe[s] on the\n\nprovince of the primary finder of facts, its application should be scrutinized lest the\n\nrestrictions it imposes surpass the dangers which gave rise to them.’” Id. (citing Smith,\n\n348 U.S. at 153).\n\n “Independent evidence adequately corroborates a confession if it ‘supports the\n\nessential facts admitted sufficiently to justify a jury inference of their truth;’ the facts\n\nadmitted ‘plus the other evidence besides the admission must, of course, be sufficient to\n\nfind guilt beyond a reasonable doubt.’” Abu Ali, 528 F.3d at 235 (citing Opper, 348 U.S.\n\nat 93); Stephens, 482 F.3d at 672. The corroborative evidence does not have to prove the\n\noffense beyond a reasonable doubt, or even by a preponderance. But there must be\n\nsubstantial independent evidence that the offense has been committed in the first\n\ninstance, and that the evidence as a whole proves beyond a reasonable doubt that the\n\n 10\n\ndefendant is guilty. Abu Ali, 528 F.3d at 235 (citing Smith, 348 U.S. at 156); Kasai, 736\n\nF. App’x at 415. Only after a defendant’s admissions have been corroborated by\n\nsufficient independent evidence may the government “prove the offense through the\n\nstatement of the accused.” Abu Ali, 528 F.3d at 235; Kasai, 736 F. App’x at 415. “The\n\ngovernment must establish each element of an offense, but may do so ‘by independent\n\nevidence or corroborated admissions,’ and ‘one mode of corroboration is for the\n\nindependent evidence to bolster the confession itself and thereby prove the offense\n\nthrough the statements of the accused.’” Abu Ali, 528 F.3d at 235 (citing Smith, 348 U.S.\n\nat 156).\n\n C.\n\n Applying these legal principles and the appropriate standard of review to the case\n\nat hand, we find that the government has failed to meet its burden to prove that\n\nRodriguez-Soriano knowingly made a false statement to the firearms dealer as to the\n\nidentity of the actual buyer of the firearms. There is no corroboration demonstrating that\n\nthe transaction was a straw purchase, and accordingly no substantial independent\n\nevidence that, together with the confession itself, proves Rodriguez-Soriano’s guilt\n\nbeyond a reasonable doubt. Neither party refutes that Rodriguez-Soriano was eligible to\n\nacquire firearms at the time he purchased them. And the ATF forms and the testimony of\n\nthe representative of the licensed firearms dealer, at best, prove only that he made a\n\nfacially legal purchase of two firearms. It was the government’s burden to prove that\n\nRodriguez-Soriano knowingly committed a crime by falsely stating that he was buying\n\nthe guns for himself. The government contends that additional independent evidence\n\n 11\n\npresented at trial sufficiently corroborated his confession, and this corroborating\n\nevidence, together with the confession itself, was sufficient to sustain his conviction. We\n\ndisagree.\n\n In reaching this conclusion, we find the facts in Stephens, 482 F.3d 669,\n\nparticularly instructive. There, an officer on patrol heard four to five gunshots coming\n\nfrom a nearby street. He turned in the direction of the shots and within thirty seconds\n\nobserved a man, later identified as Stephens, crossing the street. Stephens ran when he\n\nsaw the officer, and was later apprehended inside a nearby house. The officer retraced\n\nthe path of pursuit and found a revolver containing five spent shell casings lying in the\n\ngrass near where he first saw Stephens. Id. at 671.\n\n Upon being taken into custody, Stephens was interviewed by two ATF agents. He\n\ntold them that approximately two to three months earlier, a local drug dealer known as\n\n“Red” fronted him a quantity of cocaine for which he was to pay $1,500. Stephens was\n\nunable to repay Red because his wife had consumed the cocaine. Stephens heard on the\n\nstreet that Red intended to kill him because he failed to pay, and later that evening, when\n\nhe drove past Red and his associates, someone in the group fired a shot at him. Stephens\n\nretrieved his gun and fired the shots the officer heard at Red’s vehicle, a white Mazda,\n\nwhen he saw it on the street. Two months after his initial statement to the agents,\n\nStephens repeated his statement in a proffer to the government. Id.\n\n But when Stephens took the stand in his own defense at trial, he testified that he\n\nhad lied to the ATF agents after his arrest and in his proffer. He stated that on the night\n\nin question, he was sitting on his grandmother’s porch when an individual approached\n\n 12\n\nand offered to sell him a handgun for $75. Stephens paid $60 for the firearm, and then\n\nwalked to a friend’s house where he fired the gun into the air. He explained that he lied\n\nabout his association with Red in hopes he would be released on bond, or released so he\n\ncould provide information about Red’s drug dealing activities. Stephens denied having\n\nany connection to Red, that he was involved in drug sales, or that he owed anyone for\n\ndrugs. Id.\n\n Stephens’ motion for a judgment of acquittal was denied, id. at 672, and a jury\n\nfound him guilty of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, and\n\nof using, carrying, and discharging a firearm in relation to a drug trafficking crime, in\n\nviolation of 18 U.S.C. § 924(c)(1)(A)(iii). Id. at 670. But on appeal, this Court reversed,\n\nfinding that the evidence was insufficient to corroborate his confession to the ATF agents\n\nand thereby establish his guilt of the offenses. This Court noted that further law\n\nenforcement investigation “might have served to fortif[y]” the truth of Stephens’\n\nconfession. But the ATF agent, who was familiar with the city’s drug trade and knew of\n\na drug dealer named Red who drove a white Mazda, could not establish any connection\n\nbetween Stephens and Red, and his corroboration of those details from Stephens’\n\nstatement did not establish the necessary link between Stephens and Red to prove the two\n\nwere engaged in a conspiracy to sell cocaine. Id. at 673.\n\n If Stephens sets the outer bounds of the corroboration rule, the evidence here is\n\nwell within it. Here, the government contends that four pieces of evidence corroborate\n\nRodriguez-Soriano’s confession that he made a straw purchase: (1) the guns he\n\npurchased were no longer in his possession; (2) he lied to the agents about buying the\n 13\n\nfirearms in two separate transactions; (3) he made inconsistent and contradictory\n\nstatements about the alleged theft of the guns; and (4) he reaffirmed his confession in a\n\nsubsequent interview. The government would have us conclude that under the applicable\n\nstandard of review, despite the absence of testimony from the homicide detective and the\n\nother parties involved in the alleged straw purchase, and the government’s failure to\n\nintroduce the gun into evidence, it still produced substantial independent evidence that,\n\ntogether with the evidence as a whole, was sufficient for the jury to find Rodriguez-\n\nSoriano guilty beyond a reasonable doubt. But the government’s argument fails because\n\nall of the evidence the government claims corroborates Rodriguez-Soriano’s confession\n\narises from his own statements to law enforcement.\n\n At the time Rodriguez-Soriano told the agents he no longer had the guns, Agent\n\nBurkholder had already received information, independent of Rodriguez-Soriano’s\n\nstatement, that the gun had been used by a third party in a homicide. But given that\n\nAgent Burkholder’s testimony regarding the use of the gun to commit a murder was not\n\noffered at trial for the truth of the matter asserted, but rather was admitted solely to\n\nexplain what prompted the investigation of the gun purchases, the sole evidence at trial\n\nthat Rodriguez-Soriano was no longer in possession of the guns arose from Rodriguez-\n\nSoriano’s statement, and therefore was not an independent corroboration of the straw\n\npurchase.\n\n Given the limited purpose for which the jury could consider Agent Burkholder’s\n\ntestimony, the remaining evidence the government advances as corroborative is simply\n\ninadequate, as it does not prove that Rodriguez-Soriano knowingly made a false\n\n 14\n\nstatement. That Rodriguez-Soriano no longer possessed the firearms at the time of the\n\ninterview did not itself indicate that he knowingly misrepresented he was the actual\n\nbuyer. And while his later, inconsistent explanations as to why he purchased the firearms\n\nor how they were stolen may suggest that he lied to the ATF agents, they do not establish\n\nthat he knowingly made a false statement at the time of purchase, as required under\n\n§ 924(a)(1)(A).\n\n The government would also have us construe Rodriguez-Soriano’s statements\n\nmade in his subsequent interview as a separate confession, and determine that each\n\nconfession corroborates the other. But the government cannot rely on a second\n\nuncorroborated confession as independent evidence corroborating an initial one,\n\nparticularly where the second does nothing to “fortif[y] the truth of the confession” by\n\noffering further corroboration that a crime was committed. See Stephens, 482 F.3d at\n\n672-73. And where the only evidence of the corpus delecti is an uncorroborated\n\nconfession, the evidence is insufficient as a matter of law. See Yost, 157 F.2d at 150.\n\n The facts of this case and other cases like it where the “confessions or admissions\n\nconstitute[] the only evidence linking [a defendant] to criminal conduct,” demonstrate the\n\nneed for the uncorroborated confession rule – “to prevent confessions to crimes never\n\ncommitted.” Warszower, 312 U.S. at 347. See Stephens, 482 F.3d at 672 (government\n\npresented no evidence other than defendant’s statement to establish his connection to a\n\ndrug conspiracy). In Stephens, this Court noted that further investigation by law\n\nenforcement might have fortified the truth of the defendant’s confession. 482 F.3d at\n\n673. Here, it appears that the prosecutor knew the identities of potential corroborating\n 15\n\nwitnesses, yet we can only speculate as to why evidence corroborating Rodriguez-\n\nSoriano’s alleged offense was not presented at his trial. But regardless of the reason, we\n\nconclude that without the necessary corroboration of the confession, the prosecution has\n\nfailed to present sufficient independent evidence that a crime was committed, and where,\n\nas here, the prosecutor’s failure to do so is “clear,” see Burgos, 94 F.3d at 862, the\n\nabsence of substantial independent evidence cannot sustain the jury’s verdict and requires\n\nreversal. Stephens, 482 F.3d at 673.\n\n\n\n IV.\n For these reasons, we find that the evidence presented at trial was insufficient to\n\nsupport the jury’s verdict. Given that the evidence was insufficient to corroborate\n\nRodriguez-Soriano’s confession, and thus insufficient to establish his guilt of the offense\n\nbeyond a reasonable doubt, we decline to address Rodriguez-Soriano’s claim that the\n\ndistrict court erred in refusing to permit the expert proposed testimony regarding false\n\nconfessions. We reverse Rodriguez-Soriano’s conviction and remand with instructions to\n\nenter a judgment of acquittal.\n\n\n\n CONVICTION\n REVERSED AND REMANDED\n\n\n\n\n 16\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Christopher RODRIGUEZ-SORIANO, A/K/A Christopher Soriano, A/K/A Christopher Soriano-Rodriguez, Defendant - Appellant.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-07-24\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-4291\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff – Appellee,\\n\\n v.\\n\\nCHRISTOPHER RODRIGUEZ-SORIANO, a/k/a Christopher Soriano, a/k/a\\nChristopher Soriano-Rodriguez,\\n\\n Defendant – Appellant.\\n\\n\\nAppeal from the United States District Court for the Eastern District of Virginia, at\\nAlexandria. Liam O’Grady, District Judge. (1:17–cr–00197–LO–1)\\n\\n\\nArgued: January 30, 2019 Decided: July 24, 2019\\n\\n\\nBefore GREGORY, Chief Judge, RICHARDSON, Circuit Judge, and DUNCAN, Senior\\nCircuit Judge.\\n\\n\\nConviction reversed and remanded by published opinion. Chief Judge Gregory wrote the\\nopinion, in which Senior Judge Duncan joined. Judge Richardson wrote a dissenting\\nopinion.\\n\\n\\nARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,\\nAlexandria, Virginia, for Appellant. James L. Trump, OFFICE OF THE\\nUNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:\\nGeremy C. Kamens, Federal Public Defender, Shannon Quill, Assistant Federal Public\\nDefender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for\\nAppellant. G. Zach Terwilliger, United States Attorney, Christopher K. Grieco, Special\\n\\nAssistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,\\nAlexandria, Virginia, for Appellee.\\n\\n\\n\\n\\n 2\\n\\nGREGORY, Chief Judge:\\n\\n Christopher Rodriguez-Soriano was found guilty of knowingly making a false\\n\\nstatement to a licensed firearms dealer in the acquisition of a firearm, stating that he was\\n\\nthe actual purchaser of the firearms when he was acquiring them for another individual.\\n\\nHe appeals the district court’s exclusion of proposed expert testimony at trial, as well as\\n\\ndenial of his motion for judgment of acquittal. Rodriguez-Soriano challenges the district\\n\\ncourt’s determination that proposed expert testimony related to false confessions,\\n\\nexcluded pursuant to Federal Rule of Evidence 702, was not reliable or relevant, and that\\n\\nthe risk of prejudice outweighed its probative value, and thus it was also properly\\n\\nexcluded under Federal Rule of Evidence 403. We conclude that, for the reasons stated\\n\\nbelow, we need not determine whether the expert testimony was properly excluded\\n\\nbecause the evidence introduced at trial was insufficient to independently corroborate\\n\\nRodriguez-Soriano’s confession. We therefore reverse the district court’s judgment of\\n\\nconviction and remand for the entry of a judgment of acquittal.\\n\\n\\n\\n I.\\n\\n On July 25, 2015, Rodriguez-Soriano purchased two firearms, a Ruger P95 9mm\\n\\npistol and a Beemiller Hi-Point C9 9mm pistol, from a Northern Virginia location of\\n\\nGander Mountain Company, a licensed firearms dealer. At the time of purchase,\\n\\nRodriguez-Soriano completed Bureau of Alcohol, Tobacco and Firearms (“ATF”) Form\\n\\n4473, “Report of Multiple Sale or Other Disposition of Pistols and Revolvers,” which\\n\\nlisted him as the purchaser of both firearms. He marked the box indicating that he was\\n\\n 3\\n\\nthe actual buyer of the firearms listed on the form. 1 Gander Mountain completed another\\n\\nATF-required document, a “Multiple Sale Summary,” documenting that Rodriguez-\\n\\nSoriano purchased both firearms in a single transaction.\\n\\n In November 2016, a Washington, D.C. homicide detective sought the assistance\\n\\nof the ATF after receiving information that one of the firearms Rodriguez-Soriano\\n\\npurchased was used in a homicide. Based on this information, ATF Special Agent David\\n\\nBurkholder and ATF Task Force Officer Kevin McConnell interviewed Rodriguez-\\n\\nSoriano on two occasions about his gun purchases. 2\\n\\n Rodriguez-Soriano initially told the agents that the two firearms he purchased\\n\\nwere stolen sometime in late 2015 and described the circumstances surrounding their\\n\\ntheft. According to Rodriguez-Soriano, he didn’t know exactly when they were stolen,\\n\\nand didn’t notice they were missing until mid-November. At some point during that time\\n\\nperiod he found the closet where he kept the guns in disarray, but its condition did not\\n\\nalert him to the theft. He then revealed to the agents he suspected that a friend had\\n\\nbroken the lock on his basement door to enter and steal the guns, but he didn’t\\n\\n\\n\\n\\n 1\\n Form 4473 includes the statement, “You are not the actual buyer if you are\\nacquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the\\ndealer cannot transfer the firearm(s) to you.” J.A. 178. Rodriguez-Soriano also watched\\na short video on straw purchases entitled, “Don’t Lie for the Other Guy.” J.A. 318.\\n 2\\n At trial, defense counsel objected to Burkholder’s testimony as to what the\\ndetective revealed to him regarding the homicide. The court overruled the objection and\\npermitted his testimony because it was not offered for the truth of the matter, but rather to\\nexplain why the agents investigated Rodriguez-Soriano’s purchase of the guns. J.A. 192.\\n\\n 4\\n\\nimmediately notice the lock was broken and could not say which of his friends knew he\\n\\nhad firearms. He later identified one, who he referred to as “D.”\\n\\n When asked why he purchased two guns, Rodriguez-Soriano responded that the\\n\\nHi-Point pistol “kept jamming” at the shooting range, so he returned to purchase the other\\n\\nfirearm. The agents immediately knew this statement was false because the ATF forms\\n\\ndocumenting the purchase indicated that the two firearms had been purchased in a single\\n\\ntransaction. The agents then “pivoted,” expressing doubt as to the veracity of his story.\\n\\nJ.A. 420. The agents informed Rodriguez-Soriano that straw purchasers often say that\\n\\nguns they have purchased were stolen and informed him it was a crime punishable by up\\n\\nto five years in prison to lie to federal agents. They revealed that they knew he had\\n\\npurchased the guns for someone else because the person had told them so, the situation\\n\\nwas very serious because one of the guns had been used in a homicide, and they were\\n\\ngiving him the opportunity to “come clean.” J.A. 420-21. They characterized the\\n\\npurchase of the gun as “minimal” compared to what had been done with it, but warned\\n\\nhim about continuing to “go down the path” of lying about the guns being stolen. J.A.\\n\\n421.\\n\\n Rodriguez-Soriano then confessed to the agents that he purchased the two 9mm\\n\\nhandguns at the request of an acquaintance named “Ron.” He revealed that Ron\\n\\napproached him in late May 2015 about buying two handguns for him. Rodriguez-\\n\\nSoriano did not immediately accept Ron’s offer, but when their paths crossed again,\\n\\nRodriguez-Soriano told him, “I can do that favor for you.” Ron gave Rodriguez-Soriano\\n\\n$650 to buy two guns. After the purchase, Rodriguez-Soriano met Ron and his friend,\\n\\n 5\\n\\n“D,” in the parking lot of a convenience store where Rodriguez-Soriano entered their car,\\n\\nshowed them the guns, and left the guns on the back seat.\\n\\n After Rodriguez-Soriano confessed, the agents reviewed Form 4473 with him. He\\n\\nadmitted it was his name, information, and mark in the box indicating that he was the\\n\\nactual buyer of the firearms. At a follow-up interview conducted eighteen days later,\\n\\nRodriguez-Soriano confirmed the statements he made in his prior interview. Rodriguez-\\n\\nSoriano was indicted on one count of knowingly making a false statement to a licensed\\n\\nfirearms dealer in the acquisition of a firearm, stating that he was the actual purchaser of\\n\\nthe firearms when he was acquiring them for another individual, in violation of 18 U.S.C.\\n\\n§ 924(a)(1)(A).\\n\\n Agent Burkholder, an ATF records management employee, and Gander\\n\\nMountain’s former general manager, as the representative of the licensed firearms dealer,\\n\\ntestified for the government at trial. But the homicide detective and the men who,\\n\\naccording to Rodriguez-Soriano’s confession, gave him the cash for and took possession\\n\\nof the guns he purchased did not. The gun used in the homicide was not introduced into\\n\\nevidence. Rodriguez-Soriano did not present any evidence in response to the\\n\\ngovernment’s case. He instead moved for a judgment of acquittal under Federal Rule of\\n\\nCriminal Procedure 29, arguing that the evidence was insufficient to support his\\n\\nconviction because the only evidence of criminal activity was Rodriguez-Soriano’s own\\n\\nuncorroborated statement to the ATF agents. The district court denied the motion,\\n\\nfinding that “given the other evidence surrounding his confession,” further corroboration\\n\\nwas not “legally necessary” because the government produced sufficient evidence as to\\n\\n 6\\n\\neach of the elements of the offense. J.A. 233-34; 239. The jury found Rodriguez-\\n\\nSoriano guilty of the offense charged.\\n\\n This appeal followed.\\n\\n\\n\\n II.\\n\\n This Court reviews de novo the district court’s denial of the motion for acquittal\\n\\nunder Federal Rule of Criminal Procedure 29. United States v. Jaensch, 665 F.3d 83, 93\\n\\n(4th Cir. 2001); Fed. R. Crim. P. 29. In reviewing a challenge to the sufficiency of the\\n\\nevidence, an appellate court must ask whether “there is substantial evidence, taking the\\n\\nview most favorable to the Government, to support” the conviction. Glasser v. United\\n\\nStates, 315 U.S. 60, 80 (1942). “[S]ubstantial evidence is evidence that a reasonable\\n\\nfinder of fact could accept as adequate and sufficient to support a conclusion of a\\n\\ndefendant’s guilt beyond a reasonable doubt.” United States v. Burgos, 94 F.3d 849, 862\\n\\n(4th Cir. 1996) (en banc); see also United States v. Kasai, 736 F. App’x 414, 415 (4th\\n\\nCir. 2018) (citing United States v. Cowden, 882 F.3d 464, 474 (4th Cir. 2018).\\n\\n“[A]ppellate reversal on grounds of insufficient evidence . . . will be confined “to cases\\n\\nwhere the prosecution’s failure is clear.” Burgos, 94 F.3d at 862 (citing Burks v. United\\n\\nStates, 437 U.S. 1, 17 (1978); see also United States v. Palomino-Coronado, 805 F.3d\\n\\n127, 130 (4th Cir. 2015); United States v. Green, 599 F.3d 360, 367 (4th Cir.), cert.\\n\\ndenied, 562 U.S. 913 (2010). The government may rely on circumstantial evidence and\\n\\ninferences, but it still must prove each element of an offense beyond a reasonable doubt.\\n\\nSee Burgos, 94 F.3d at 858–59.\\n\\n 7\\n\\n III.\\n\\n Rodriguez-Soriano contends that the district court erred in denying his motion for\\n\\nacquittal because the evidence presented at trial was insufficient to sustain a conviction.\\n\\nWe agree. The government presented no evidence other than Rodriguez-Soriano’s\\n\\nuncorroborated confession that his statement to a licensed firearms dealer regarding the\\n\\nidentity of the actual buyer of the firearms was false.\\n\\n A.\\n\\n Section 924(a)(1) provides in pertinent part:\\n\\n [W]hoever knowingly makes any false statement or representation with\\n respect to the information required by [Chapter 44 of Title 18 of the United\\n States Code] to be kept in the records of a person licensed under this\\n chapter or in applying for any license or exemption or relief from disability\\n under the provisions of this chapter . . . shall be fined under this title,\\n imprisoned not more than five years, or both.\\n\\n18 U.S.C. § 924(a)(1)(A).\\n\\n Section 924(a)(1)(A) prohibits individuals from knowingly making any false\\n\\nstatement or representation with respect to the information required to be kept in the\\n\\nrecords of a federally licensed firearms dealer. It applies to “straw purchases,” in which\\n\\nan ineligible buyer uses a “straw man” to purchase firearms. See United States v. Nelson,\\n\\n221 F.3d 1206, 1209-10 (11th Cir. 2000) (affirming § 924(a)(1)(A) conviction of\\n\\ndefendants who hired individuals to purchase firearms by falsely representing themselves\\n\\nto be the actual buyers when defendants supplied the money for the purchases and\\n\\nintended to possess the firearms). A false statement or representation on an ATF Form\\n\\n4473 as to the identity of the actual buyer of a firearm constitutes a violation of\\n\\n\\n 8\\n\\n§ 924(a)(1)(A). Nelson, 221 F.3d at 1209–10; United States v. Abramski, 778 F. Supp.2d\\n\\n678, 681 (W.D. Va. 2011), aff’d, 706 F.3d 307 (4th Cir. 2013).\\n\\n To establish a violation of § 924(a)(1)(A), the government must prove: (1) the\\n\\ndealer was a federally licensed firearms dealer at the time the offense occurred; (2) the\\n\\ndefendant made a false statement or representation in a record that the licensed firearm\\n\\ndealer was required by federal law to maintain; and (3) the defendant made the false\\n\\nstatement with knowledge of its falsity. United States v. Abramski, 706 F.3d 307, 316–17\\n\\n(4th Cir. 2013), aff’d, 573 U.S. 169 (2014). Thus, to convict Rodriguez-Soriano under\\n\\nthis statute, it was the government’s burden to prove that he falsely stated to the licensed\\n\\nfirearms dealer that he was purchasing the firearms for himself with the knowledge that\\n\\nthe statement was false. But the government has failed to meet its burden. Rodriguez-\\n\\nSoriano’s confession, without additional corroborative evidence, was insufficient to find\\n\\nhim guilty beyond a reasonable doubt.\\n\\n B.\\n\\n “It is a settled principle of the administration of criminal justice in the federal\\n\\ncourts that a conviction must rest upon firmer ground than the uncorroborated admission\\n\\nor confession of the accused.” United States v. Abu Ali, 528 F.3d 210, 234 (4th Cir.\\n\\n2008) (quoting Wong Sun v. United States, 371 U.S. 471, 488-89 (1963)); see also United\\n\\nStates v. Stephens, 482 F.3d 669, 672 (4th Cir. 2007) (criminal defendant’s conviction\\n\\ncannot rest entirely on an uncorroborated extrajudicial confession). The requirement for\\n\\ncorroboration “is rooted in ‘a long history of judicial experience with confessions and in\\n\\nthe realization that sound law enforcement requires police investigations which extend\\n 9\\n\\nbeyond the words of the accused.’” Wong Sun, 371 U.S. at 489 (quoting Smith v. United\\n\\nStates, 348 U.S. 147, 153 (1954)). This is so because “the doubt persists that the zeal of\\n\\nthe agencies of prosecution to protect the peace . . . or the aberration or weakness of the\\n\\naccused under the strain of suspicion may tinge or warp the facts of the confession.” Id.\\n\\nat 489 (citing Opper v. United States, 348 U.S. 84, 89-90 (1954)). Moreover, “there can\\n\\nbe no conviction of an accused in a criminal case upon an uncorroborated confession,”\\n\\nwhere the corroboration “wholly fails to include any substantial evidence of the corpus\\n\\ndelecti.” Yost v. United States, 157 F.2d 147, 150 (4th Cir. 1946). Thus, courts require\\n\\ncorroboration to “prevent confessions to crimes never committed and ‘convictions based\\n\\nupon untrue confessions alone.’” Abu Ali, 528 F.3d at 234 (quoting Warszower v. United\\n\\nStates, 312 U.S. 342, 347 (1941)). But “since this corroboration rule ‘infringe[s] on the\\n\\nprovince of the primary finder of facts, its application should be scrutinized lest the\\n\\nrestrictions it imposes surpass the dangers which gave rise to them.’” Id. (citing Smith,\\n\\n348 U.S. at 153).\\n\\n “Independent evidence adequately corroborates a confession if it ‘supports the\\n\\nessential facts admitted sufficiently to justify a jury inference of their truth;’ the facts\\n\\nadmitted ‘plus the other evidence besides the admission must, of course, be sufficient to\\n\\nfind guilt beyond a reasonable doubt.’” Abu Ali, 528 F.3d at 235 (citing Opper, 348 U.S.\\n\\nat 93); Stephens, 482 F.3d at 672. The corroborative evidence does not have to prove the\\n\\noffense beyond a reasonable doubt, or even by a preponderance. But there must be\\n\\nsubstantial independent evidence that the offense has been committed in the first\\n\\ninstance, and that the evidence as a whole proves beyond a reasonable doubt that the\\n\\n 10\\n\\ndefendant is guilty. Abu Ali, 528 F.3d at 235 (citing Smith, 348 U.S. at 156); Kasai, 736\\n\\nF. App’x at 415. Only after a defendant’s admissions have been corroborated by\\n\\nsufficient independent evidence may the government “prove the offense through the\\n\\nstatement of the accused.” Abu Ali, 528 F.3d at 235; Kasai, 736 F. App’x at 415. “The\\n\\ngovernment must establish each element of an offense, but may do so ‘by independent\\n\\nevidence or corroborated admissions,’ and ‘one mode of corroboration is for the\\n\\nindependent evidence to bolster the confession itself and thereby prove the offense\\n\\nthrough the statements of the accused.’” Abu Ali, 528 F.3d at 235 (citing Smith, 348 U.S.\\n\\nat 156).\\n\\n C.\\n\\n Applying these legal principles and the appropriate standard of review to the case\\n\\nat hand, we find that the government has failed to meet its burden to prove that\\n\\nRodriguez-Soriano knowingly made a false statement to the firearms dealer as to the\\n\\nidentity of the actual buyer of the firearms. There is no corroboration demonstrating that\\n\\nthe transaction was a straw purchase, and accordingly no substantial independent\\n\\nevidence that, together with the confession itself, proves Rodriguez-Soriano’s guilt\\n\\nbeyond a reasonable doubt. Neither party refutes that Rodriguez-Soriano was eligible to\\n\\nacquire firearms at the time he purchased them. And the ATF forms and the testimony of\\n\\nthe representative of the licensed firearms dealer, at best, prove only that he made a\\n\\nfacially legal purchase of two firearms. It was the government’s burden to prove that\\n\\nRodriguez-Soriano knowingly committed a crime by falsely stating that he was buying\\n\\nthe guns for himself. The government contends that additional independent evidence\\n\\n 11\\n\\npresented at trial sufficiently corroborated his confession, and this corroborating\\n\\nevidence, together with the confession itself, was sufficient to sustain his conviction. We\\n\\ndisagree.\\n\\n In reaching this conclusion, we find the facts in Stephens, 482 F.3d 669,\\n\\nparticularly instructive. There, an officer on patrol heard four to five gunshots coming\\n\\nfrom a nearby street. He turned in the direction of the shots and within thirty seconds\\n\\nobserved a man, later identified as Stephens, crossing the street. Stephens ran when he\\n\\nsaw the officer, and was later apprehended inside a nearby house. The officer retraced\\n\\nthe path of pursuit and found a revolver containing five spent shell casings lying in the\\n\\ngrass near where he first saw Stephens. Id. at 671.\\n\\n Upon being taken into custody, Stephens was interviewed by two ATF agents. He\\n\\ntold them that approximately two to three months earlier, a local drug dealer known as\\n\\n“Red” fronted him a quantity of cocaine for which he was to pay $1,500. Stephens was\\n\\nunable to repay Red because his wife had consumed the cocaine. Stephens heard on the\\n\\nstreet that Red intended to kill him because he failed to pay, and later that evening, when\\n\\nhe drove past Red and his associates, someone in the group fired a shot at him. Stephens\\n\\nretrieved his gun and fired the shots the officer heard at Red’s vehicle, a white Mazda,\\n\\nwhen he saw it on the street. Two months after his initial statement to the agents,\\n\\nStephens repeated his statement in a proffer to the government. Id.\\n\\n But when Stephens took the stand in his own defense at trial, he testified that he\\n\\nhad lied to the ATF agents after his arrest and in his proffer. He stated that on the night\\n\\nin question, he was sitting on his grandmother’s porch when an individual approached\\n\\n 12\\n\\nand offered to sell him a handgun for $75. Stephens paid $60 for the firearm, and then\\n\\nwalked to a friend’s house where he fired the gun into the air. He explained that he lied\\n\\nabout his association with Red in hopes he would be released on bond, or released so he\\n\\ncould provide information about Red’s drug dealing activities. Stephens denied having\\n\\nany connection to Red, that he was involved in drug sales, or that he owed anyone for\\n\\ndrugs. Id.\\n\\n Stephens’ motion for a judgment of acquittal was denied, id. at 672, and a jury\\n\\nfound him guilty of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, and\\n\\nof using, carrying, and discharging a firearm in relation to a drug trafficking crime, in\\n\\nviolation of 18 U.S.C. § 924(c)(1)(A)(iii). Id. at 670. But on appeal, this Court reversed,\\n\\nfinding that the evidence was insufficient to corroborate his confession to the ATF agents\\n\\nand thereby establish his guilt of the offenses. This Court noted that further law\\n\\nenforcement investigation “might have served to fortif[y]” the truth of Stephens’\\n\\nconfession. But the ATF agent, who was familiar with the city’s drug trade and knew of\\n\\na drug dealer named Red who drove a white Mazda, could not establish any connection\\n\\nbetween Stephens and Red, and his corroboration of those details from Stephens’\\n\\nstatement did not establish the necessary link between Stephens and Red to prove the two\\n\\nwere engaged in a conspiracy to sell cocaine. Id. at 673.\\n\\n If Stephens sets the outer bounds of the corroboration rule, the evidence here is\\n\\nwell within it. Here, the government contends that four pieces of evidence corroborate\\n\\nRodriguez-Soriano’s confession that he made a straw purchase: (1) the guns he\\n\\npurchased were no longer in his possession; (2) he lied to the agents about buying the\\n 13\\n\\nfirearms in two separate transactions; (3) he made inconsistent and contradictory\\n\\nstatements about the alleged theft of the guns; and (4) he reaffirmed his confession in a\\n\\nsubsequent interview. The government would have us conclude that under the applicable\\n\\nstandard of review, despite the absence of testimony from the homicide detective and the\\n\\nother parties involved in the alleged straw purchase, and the government’s failure to\\n\\nintroduce the gun into evidence, it still produced substantial independent evidence that,\\n\\ntogether with the evidence as a whole, was sufficient for the jury to find Rodriguez-\\n\\nSoriano guilty beyond a reasonable doubt. But the government’s argument fails because\\n\\nall of the evidence the government claims corroborates Rodriguez-Soriano’s confession\\n\\narises from his own statements to law enforcement.\\n\\n At the time Rodriguez-Soriano told the agents he no longer had the guns, Agent\\n\\nBurkholder had already received information, independent of Rodriguez-Soriano’s\\n\\nstatement, that the gun had been used by a third party in a homicide. But given that\\n\\nAgent Burkholder’s testimony regarding the use of the gun to commit a murder was not\\n\\noffered at trial for the truth of the matter asserted, but rather was admitted solely to\\n\\nexplain what prompted the investigation of the gun purchases, the sole evidence at trial\\n\\nthat Rodriguez-Soriano was no longer in possession of the guns arose from Rodriguez-\\n\\nSoriano’s statement, and therefore was not an independent corroboration of the straw\\n\\npurchase.\\n\\n Given the limited purpose for which the jury could consider Agent Burkholder’s\\n\\ntestimony, the remaining evidence the government advances as corroborative is simply\\n\\ninadequate, as it does not prove that Rodriguez-Soriano knowingly made a false\\n\\n 14\\n\\nstatement. That Rodriguez-Soriano no longer possessed the firearms at the time of the\\n\\ninterview did not itself indicate that he knowingly misrepresented he was the actual\\n\\nbuyer. And while his later, inconsistent explanations as to why he purchased the firearms\\n\\nor how they were stolen may suggest that he lied to the ATF agents, they do not establish\\n\\nthat he knowingly made a false statement at the time of purchase, as required under\\n\\n§ 924(a)(1)(A).\\n\\n The government would also have us construe Rodriguez-Soriano’s statements\\n\\nmade in his subsequent interview as a separate confession, and determine that each\\n\\nconfession corroborates the other. But the government cannot rely on a second\\n\\nuncorroborated confession as independent evidence corroborating an initial one,\\n\\nparticularly where the second does nothing to “fortif[y] the truth of the confession” by\\n\\noffering further corroboration that a crime was committed. See Stephens, 482 F.3d at\\n\\n672-73. And where the only evidence of the corpus delecti is an uncorroborated\\n\\nconfession, the evidence is insufficient as a matter of law. See Yost, 157 F.2d at 150.\\n\\n The facts of this case and other cases like it where the “confessions or admissions\\n\\nconstitute[] the only evidence linking [a defendant] to criminal conduct,” demonstrate the\\n\\nneed for the uncorroborated confession rule – “to prevent confessions to crimes never\\n\\ncommitted.” Warszower, 312 U.S. at 347. See Stephens, 482 F.3d at 672 (government\\n\\npresented no evidence other than defendant’s statement to establish his connection to a\\n\\ndrug conspiracy). In Stephens, this Court noted that further investigation by law\\n\\nenforcement might have fortified the truth of the defendant’s confession. 482 F.3d at\\n\\n673. Here, it appears that the prosecutor knew the identities of potential corroborating\\n 15\\n\\nwitnesses, yet we can only speculate as to why evidence corroborating Rodriguez-\\n\\nSoriano’s alleged offense was not presented at his trial. But regardless of the reason, we\\n\\nconclude that without the necessary corroboration of the confession, the prosecution has\\n\\nfailed to present sufficient independent evidence that a crime was committed, and where,\\n\\nas here, the prosecutor’s failure to do so is “clear,” see Burgos, 94 F.3d at 862, the\\n\\nabsence of substantial independent evidence cannot sustain the jury’s verdict and requires\\n\\nreversal. Stephens, 482 F.3d at 673.\\n\\n\\n\\n IV.\\n For these reasons, we find that the evidence presented at trial was insufficient to\\n\\nsupport the jury’s verdict. Given that the evidence was insufficient to corroborate\\n\\nRodriguez-Soriano’s confession, and thus insufficient to establish his guilt of the offense\\n\\nbeyond a reasonable doubt, we decline to address Rodriguez-Soriano’s claim that the\\n\\ndistrict court erred in refusing to permit the expert proposed testimony regarding false\\n\\nconfessions. We reverse Rodriguez-Soriano’s conviction and remand with instructions to\\n\\nenter a judgment of acquittal.\\n\\n\\n\\n CONVICTION\\n REVERSED AND REMANDED\\n\\n\\n\\n\\n 16\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2955,"cells":{"id":{"kind":"number","value":4642454,"string":"4,642,454"},"name":{"kind":"string","value":"Rema DAWSON-MURDOCK, Plaintiff - Appellant, v. NATIONAL COUNSELING GROUP, INC.; National Counseling Group, Inc. Plan, Defendants - Appellees."},"name_abbreviation":{"kind":"string","value":"Rema Dawson-Murdock v. National Counseling Group, Inc"},"decision_date":{"kind":"string","value":"2019-07-24"},"docket_number":{"kind":"string","value":"18-1989"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"King, Diaz, Quattlebaum\", \"parties\": \"\", \"opinions\": [{\"author\": \"KING, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1989\\n\\n\\nREMA DAWSON-MURDOCK,\\n\\n Plaintiff – Appellant,\\n\\n v.\\n\\nNATIONAL COUNSELING GROUP, INC.; NATIONAL COUNSELING\\nGROUP, INC. PLAN,\\n\\n Defendants – Appellees.\\n\\n\\nAppeal from the United States District Court for the Eastern District of Virginia, at\\nRichmond. John A. Gibney, Jr., District Judge. (3:18-cv-00058-JAG)\\n\\n\\nArgued: May 8, 2019 Decided: July 24, 2019\\n\\n\\nBefore KING, DIAZ, and QUATTLEBAUM, Circuit Judges.\\n\\n\\nVacated and remanded by published opinion. Judge King wrote the opinion, in which\\nJudge Diaz and Judge Quattlebaum joined.\\n\\n\\nARGUED: Elizabeth Hopkins, KANTOR & KANTOR LLP, Northridge, California, for\\nAppellant. Jeremy David Capps, HARMAN CLAYTOR CORRIGAN & WELLMAN,\\nP.C., Glen Allen, Virginia, for Appellees. ON BRIEF: Michelle L. Roberts, KANTOR\\n& KANTOR LLP, Northridge, California, for Appellant. Laura Lee Miller, HARMAN\\nCLAYTOR CORRIGAN & WELLMAN, P.C., Glen Allen, Virginia, for Appellees.\\n\\fKING, Circuit Judge:\\n\\n Plaintiff Rema Dawson-Murdock (“Rema”) appeals from the dismissal of her civil\\n\\naction in the Eastern District of Virginia. Rema sued National Counseling Group, Inc.\\n\\n(“NCG”), alleging two claims under the Employee Retirement Income Security Act of\\n\\n1974 (“ERISA”) (codified primarily in Title 29 of the United States Code). See Dawson-\\n\\nMurdock v. Nat’l Counseling Grp., Inc., No. 3:18-cv-00058 (E.D. Va. Jan. 26, 2018), ECF\\n\\nNo. 1 (the “Complaint”). 1 More specifically, the Complaint alleges that NCG contravened\\n\\nERISA by breaching its fiduciary duties in the administration of a group life insurance plan\\n\\nin which Rema’s late husband had enrolled and for which NCG is the “named fiduciary.”\\n\\nThe district court dismissed Rema’s ERISA claims pursuant to Federal Rule of Civil\\n\\nProcedure 12(b)(6), concluding that NCG’s relevant actions were not taken in a fiduciary\\n\\ncapacity. See Dawson-Murdock v. Nat’l Counseling Grp., Inc., No. 3:18-cv-00058 (E.D.\\n\\nVa. Aug. 7, 2018), ECF No. 12 (the “Opinion”). Because the Complaint sufficiently\\n\\nalleges NCG’s fiduciary status in relation to those claims, we vacate and remand.\\n\\n\\n\\n\\n 1\\n The Complaint also names a second defendant, the National Counseling Group,\\nInc. Plan, but it contains no allegations against that defendant. See 29 U.S.C.\\n§ 1132(d)(1) (authorizing suit against employee benefit plan). The district court described\\nthe National Counseling Group, Inc. Plan as a nominal defendant that does not exist apart\\nfrom NCG. Rema does not contest that description, and she focuses her arguments only\\non her claims against NCG.\\n\\n 2\\n\\f I.\\n\\n A.\\n\\n Because this appeal stems from a Rule 12(b)(6) dismissal, we accept the facts\\n\\nalleged in the Complaint as true and recite them in the light most favorable to Rema. See\\n\\nFeminist Majority Found. v. Hurley, 911 F.3d 674, 680 (4th Cir. 2019). As part of the\\n\\nbenefits package that it offers to employees, NCG provides its workers the opportunity to\\n\\nenroll in a group life insurance plan (the “Plan”). The insurer for the Plan is Unum Life\\n\\nInsurance Company of America (“Unum”). The documents that constitute the Plan are the\\n\\nSummary of Benefits and the Summary Plan Description (the “SPD”). 2\\n\\n The Summary of Benefits explains that an NCG employee who desires to enroll in\\n\\nthe Plan must pay a premium to NCG, which in turn sends the premium payment to Unum.\\n\\nIn addition to transmitting premiums, NCG is obliged to “regular[ly]” provide Unum with\\n\\ninformation about employees “who are eligible to become insured; whose amounts of\\n\\ncoverage change; and[] whose coverage ends.” See J.A. 28. 3\\n\\n\\n\\n\\n 2\\n A summary plan description (or SPD) has been defined as an “outline of an\\nemployee benefit plan, containing such information as the identity of the plan\\nadministrator, the requirements for eligibility and participation in the plan, circumstances\\nthat may result in disqualification or denial of benefits, and the identity of any insurers\\nresponsible for financing or administering the plan.” See Black’s Law Dictionary (10th\\ned. 2014). In this appeal, we consider the SPD and the Summary of Benefits — which are\\nattached to the Complaint — because those documents are integral to the ERISA claims\\nand neither party questions their authenticity. See Rockville Cars, LLC v. City of Rockville,\\n891 F.3d 141, 145 (4th Cir. 2018).\\n 3\\n Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by\\nthe parties in this appeal.\\n\\n 3\\n\\f The SPD specifies that, for the purposes of ERISA, NCG “is the [p]lan\\n\\n[a]dministrator and named fiduciary of the Plan,” and that benefits under the Plan are\\n\\n“administered” by Unum. See J.A. 65 (emphasis added). The SPD also explains that\\n\\n“ERISA imposes duties upon the people who are responsible for the operation of the . . .\\n\\n[P]lan,” and that “[t]he people who operate [the] Plan, called ‘fiduciaries’ of the Plan, have\\n\\na duty to do so prudently and in the interest of . . . Plan participants and beneficiaries.” Id.\\n\\nat 71. And the SPD instructs Plan participants and beneficiaries to contact NCG if they\\n\\nhave questions about the Plan.\\n\\n B.\\n\\n While working full-time for NCG, Rema’s late husband, Wayne Murdock\\n\\n(“Wayne”), elected $150,000 in life insurance coverage through the Plan. Wayne\\n\\nidentified Rema as his primary beneficiary for any benefits resulting from the coverage.\\n\\nTo secure that coverage, Wayne paid premiums to NCG, which forwarded those payments\\n\\nto Unum.\\n\\n On March 21, 2016, Wayne stopped working full-time for NCG and began working\\n\\npart-time for it. Although enrollment in the Plan is limited to full-time NCG employees,\\n\\nNCG either never informed or misinformed Wayne about whether he remained eligible to\\n\\nparticipate in the Plan. Additionally, although Wayne could have converted or ported his\\n\\nlife insurance coverage after transitioning to part-time status, NCG never notified him of\\n\\n\\n\\n\\n 4\\n\\fthose options. 4 The parties have not disputed that Wayne continued to pay premiums to\\n\\nNCG after March 21, 2016, despite his apparent ineligibility.\\n\\n On August 30, 2016, Wayne died. Rema, as Wayne’s widow and beneficiary,\\n\\nthereafter submitted a life insurance benefits claim for $150,000 to Unum pursuant to\\n\\nWayne’s participation in the Plan. On October 24, 2016, before Rema heard anything from\\n\\nUnum regarding her claim, Christopher Baham — NCG’s Vice President of Human\\n\\nResources — emailed Rema to notify her that Unum had denied it. Baham assured Rema,\\n\\nhowever, that NCG would directly pay her the claim amount and work with Unum to\\n\\nrecoup the payment. Baham also advised Rema that she would “not have to deal with\\n\\nUnum insurance company going forward.” See Complaint ¶ 16. Three days later, on\\n\\nOctober 27, 2016, she received a letter from Unum stating that it had denied her benefits\\n\\nclaim because Wayne “was not eligible for coverage due to his part-time status and [he]\\n\\nfailed to convert or port his coverage.” Id. ¶ 17.\\n\\n During the next four months, Rema and Vice President Baham communicated\\n\\nregularly regarding her life insurance benefits claim. Those communications included the\\n\\nfollowing:\\n\\n • On November 7, 2016, Rema emailed a copy of Unum’s denial letter\\n to Baham and asked him for advice regarding her next steps;\\n\\n • The following day, Baham responded via email and told Rema that\\n she did not need to do anything else, such as appeal the claim denial,\\n and that NCG was “working through the details,” see Complaint\\n\\n 4\\n Under the Plan, to convert coverage means to change from a group insurance\\npolicy to an individual insurance policy. On the other hand, to port coverage means to\\nmaintain coverage under the group insurance policy.\\n\\n 5\\n\\f ¶¶ 20, 39;\\n\\n • On November 15, 2016, Baham emailed Rema and said that NCG was\\n still working on her claim;\\n\\n • About two weeks later, Baham again emailed Rema, stating that NCG\\n was “working through a separate insurance company to pay out\\n Wayne’s benefits,” and that Unum would “not be involved at all.” Id.\\n ¶ 22. He again reassured her that “the claim” would be paid, id.;\\n\\n • On December 8, 2016, Baham told Rema that he was “making\\n progress toward resolution of the payment,” id. ¶ 23;\\n\\n • Later that month, Baham wrote to Rema that “NCG was still moving\\n forward,” id. ¶ 24;\\n\\n • On January 19, 2017, Baham emailed Rema to advise her that he had\\n “escalated [her claim] to another level so [he] hope[d] to soon have\\n [a] resolution on [NCG’s] side,” id. ¶ 25;\\n\\n • During the first two weeks of February 2017, Baham told Rema that\\n he was still working on the claim, that it appeared a resolution was\\n “close,” and that there had been “some slow progress” on the claim,\\n id. ¶¶ 27, 28; and\\n\\n • Finally, on February 21, 2017, Baham emailed Rema and asked to\\n speak with her by telephone. During the ensuing phone call, Baham\\n informed her that NCG would not pay her any money on the claim.\\n\\n Based on the representations made to her by Vice President Baham from October\\n\\n2016 through February 2017, Rema did not appeal Unum’s denial of her benefits claim.\\n\\nBy the time Baham informed Rema that NCG would not pay her claim, the ninety-day\\n\\nwindow for her to file an appeal with Unum had closed. 5\\n\\n\\n\\n 5\\n According to the SPD, a participant or beneficiary must appeal a denial of a claim\\nwithin ninety days of receiving Unum’s denial letter. Because Rema received her denial\\nletter on October 27, 2016, she had until January 25, 2017, to lodge an appeal with Unum.\\n\\n 6\\n\\f C.\\n\\n In January 2018, Rema filed her Complaint against NCG in the Eastern District of\\n\\nVirginia. Pertinent to this appeal, the Complaint alleges two causes of action under a\\n\\nprovision of ERISA that authorizes a participant or beneficiary of an employee benefit plan\\n\\nsubject to ERISA to pursue a civil action to obtain “appropriate equitable relief” for\\n\\nviolations of certain ERISA provisions “or the terms of the plan.” See 29 U.S.C.\\n\\n§ 1132(a)(3). 6 In the first ERISA claim, the Complaint alleges that NCG breached the\\n\\nfiduciary duty that it owed to Wayne, as a Plan participant, because it either failed to inform\\n\\nhim or misinformed him about his continued eligibility under the Plan and neglected to\\n\\nnotify him that he had the option to convert or port his life insurance coverage. In the\\n\\nsecond ERISA claim, the Complaint alleges that NCG breached the fiduciary duty that it\\n\\nowed to Rema, as a Plan beneficiary, when Vice President Baham advised her that she need\\n\\nnot appeal Unum’s denial of her benefits claim. 7\\n\\n On March 30, 2018, NCG moved the district court for dismissal of the Complaint\\n\\npursuant to Federal Rule of Civil Procedure 12(b)(6). In support of its dismissal motion,\\n\\nNCG argued that neither it nor Vice President Baham was acting as a fiduciary when they\\n\\ntook the actions underlying Rema’s ERISA claims. That is, NCG maintained that it and\\n\\n\\n 6\\n The parties in these proceedings do not dispute that the Plan is subject to the\\nprovisions of ERISA. See 29 U.S.C. § 1003(a) (defining employee benefit plan governed\\nby ERISA).\\n 7\\n The Complaint also alleged two state law claims, which the district court dismissed\\nas preempted by ERISA. Rema does not contest on appeal the dismissal of those two\\nclaims.\\n\\n 7\\n\\fBaham were acting only in an administrative capacity for the Plan, which did not satisfy\\n\\nERISA’s definition of a “fiduciary,” as codified in 29 U.S.C. § 1002(21)(A). Thus,\\n\\naccording to NCG, they could not have breached any fiduciary duties owed to Wayne or\\n\\nRema.\\n\\n On August 7, 2018, the district court granted NCG’s motion to dismiss and\\n\\ndismissed Rema’s claims. In its accompanying Opinion, the court ruled that the Complaint\\n\\nfailed to sufficiently allege that NCG satisfies ERISA’s definition of a fiduciary. The\\n\\nOpinion explained that, in order to qualify as a fiduciary under ERISA, an employer must\\n\\nhave some “discretionary control over” the employee benefit plan. See Opinion 5. And\\n\\nthe Opinion concluded that the Complaint did not adequately allege that NCG (and its high-\\n\\nranking employee, Vice President Baham) exercised “discretionary control regarding\\n\\nbenefits decisions” under the Plan. Id. at 6. Instead, the Opinion emphasized that Unum\\n\\nmade the benefits decisions for the Plan. The Opinion also described NCG’s and Baham’s\\n\\nalleged actions as merely “administrative” and thus not of a fiduciary nature. Id. at 5.\\n\\nRema noted a timely appeal from the dismissal rulings, and we possess jurisdiction\\n\\npursuant to 28 U.S.C. § 1291. 8\\n\\n\\n\\n\\n 8\\n Although neither the dismissal order nor the Opinion specified whether the\\nComplaint was dismissed with prejudice, nothing in the record rebuts the presumption that\\nit was so rendered. See McLean v. United States, 566 F.3d 391, 396 (4th Cir. 2009)\\n(“Courts have held that, unless otherwise specified, a dismissal for failure to state a claim\\nunder Rule 12(b)(6) is presumed to be both a judgment on the merits and to be rendered\\nwith prejudice.”).\\n\\n 8\\n\\f II.\\n\\n We review de novo a district court’s dismissal of a complaint pursuant to Federal\\n\\nRule of Civil Procedure 12(b)(6). See Feminist Majority Found. v. Hurley, 911 F.3d 674,\\n\\n685 (4th Cir. 2019). In conducting such a review, we accept the complaint’s “factual\\n\\nallegations as true and draw all reasonable inferences in favor of the plaintiff[].” Id. “A\\n\\ndistrict court can properly grant a Rule 12(b)(6) dismissal only if the complaint fails to\\n\\ncontain sufficient factual matter, accepted as true, to state a claim to relief that is plausible\\n\\non its face.” Id. (internal quotation marks omitted).\\n\\n\\n\\n III.\\n\\n On appeal, Rema contests the district court’s dismissal of her two ERISA claims.\\n\\nShe contends that NCG’s alleged conduct necessarily constitutes fiduciary activity because\\n\\nNCG is both the plan administrator and the named fiduciary. Even if those roles are\\n\\ninsufficient to establish that NCG’s conduct in relation to the Plan is fiduciary in nature,\\n\\nRema maintains that NCG and Vice President Baham functioned as fiduciaries in taking\\n\\nthe actions alleged in the Complaint, and that the Opinion erred in ruling otherwise. 9\\n\\nSpecifically, she maintains that NCG acted in a fiduciary capacity by: (1) failing to inform\\n\\n\\n\\n 9\\n Except when describing Baham’s individual actions, our discussion of the ERISA\\nclaims hereinafter refers to NCG and Vice President Baham collectively as “NCG.” The\\nparties do not dispute that we can consider Baham’s conduct against NCG in assessing the\\nERISA claims. See Deschamps v. Bridgestone Ams., Inc. Salaried Emps. Ret. Plan, 840\\nF.3d 267, 278-79 (6th Cir. 2016) (applying agency principles to employee in assessing\\nbreach of fiduciary duty claim against employer).\\n\\n 9\\n\\for misinforming Wayne about his continued eligibility under the Plan and neglecting to\\n\\nnotify Wayne that he had the option to convert or port his life insurance coverage; and\\n\\n(2) advising Rema not to appeal Unum’s denial of her benefits claim. Before assessing the\\n\\nalleged fiduciary misconduct, we will identify and discuss some pertinent legal principles\\n\\nregarding ERISA fiduciaries.\\n\\n A.\\n\\n ERISA specifies several duties, “derived from the common law of trusts,” that are\\n\\nimposed on a fiduciary for an employee benefit plan. See Tibble v. Edison Int’l, 135 S. Ct.\\n\\n1823, 1828 (2015) (internal quotation marks omitted); see also 29 U.S.C. § 1104(a)\\n\\n(defining “standard of care” for ERISA fiduciary); Pegram v. Herdrich, 530 U.S. 211, 224\\n\\n(2000) (“The[] responsibilities imposed by ERISA have the familiar ring of their source in\\n\\nthe common law of trusts.”). To allege a breach of any such fiduciary duty, a plan\\n\\nparticipant or beneficiary must first establish “that the party charged with the breach” is, in\\n\\nfact, a fiduciary. See Coleman v. Nationwide Life Ins. Co., 969 F.2d 54, 60 (4th Cir. 1992).\\n\\n ERISA contemplates two general types of fiduciaries. See, e.g., Mertens v. Hewitt\\n\\nAssocs., 508 U.S. 248, 251 (1993); Custer v. Sweeney, 89 F.3d 1156, 1161 (4th Cir. 1996).\\n\\nThe first type is a “named fiduciary,” which — as the term suggests — is “a fiduciary who\\n\\nis named” in the plan documents. See 29 U.S.C. § 1102(a)(2). 10 The Act requires every\\n\\n\\n 10\\n A “named fiduciary” also includes “a fiduciary . . . who, pursuant to a procedure\\nspecified in the plan, is identified as a fiduciary (A) by a person who is an employer or\\nemployee organization with respect to the plan or (B) by such an employer and such an\\nemployee organization acting jointly.” See 29 U.S.C. § 1102(a)(2). ERISA permits a\\nnamed fiduciary “to designate persons other than named fiduciaries to carry out fiduciary\\n(Continued)\\n 10\\n\\fcovered employee benefit plan to “provide for one or more named fiduciaries who jointly\\n\\nor severally shall have authority to control and manage the operation and administration of\\n\\nthe plan.” Id. § 1102(a)(1). That obligation “ensures that responsibility for managing and\\n\\noperating the plan — and liability for mismanagement — are focused with a degree of\\n\\ncertainty.” See Tatum v. RJR Pension Inv. Comm., 761 F.3d 346, 371 (4th Cir. 2014)\\n\\n(alterations and internal quotation marks omitted).\\n\\n The second type of fiduciary contemplated by ERISA has been called a “functional\\n\\nfiduciary.” See Tatum, 761 F.3d at 357 n.6. Section 1002(21)(A) of Title 29 defines such\\n\\na fiduciary and provides that\\n\\n a person is a fiduciary with respect to a plan to the extent (i) he exercises any\\n discretionary authority or discretionary control respecting management of\\n such plan or exercises any authority or control respecting management or\\n disposition of its assets, (ii) he renders investment advice for a fee or other\\n compensation, direct or indirect, with respect to any moneys or other\\n property of such plan, or has any authority or responsibility to do so, or (iii)\\n he has any discretionary authority or discretionary responsibility in the\\n administration of such plan.\\n\\nSee 29 U.S.C. § 1002(21)(A). In summarizing the two general types of ERISA fiduciaries,\\n\\nwe have explained that “the concept of a fiduciary under ERISA . . . includes not only those\\n\\nnamed as fiduciaries in the plan instrument, . . . but [also] any individual who de facto\\n\\nperforms specified discretionary functions with respect to the management, assets, or\\n\\n\\n\\n\\nresponsibilities . . . under the plan.” See id. § 1105(c)(1)(B). Here, the Plan does not\\ndesignate any person or entity other than NCG to carry out fiduciary responsibilities with\\nrespect to plan administration. That is, NCG is the only named fiduciary for plan\\nadministration.\\n\\n 11\\n\\fadministration of a plan.” See Custer, 89 F.3d at 1161 (alterations and internal quotation\\n\\nmarks omitted).\\n\\n In assessing whether a person or entity qualifies as a fiduciary under ERISA, we\\n\\nhave consistently utilized an interpretive bulletin published by the Department of Labor in\\n\\n1975. See 29 C.F.R. § 2509.75-8; Custer, 89 F.3d at 1162; Coleman, 969 F.2d at 61-62.11\\n\\nThe bulletin emphasizes that “[s]ome offices or positions of an employee benefit plan by\\n\\ntheir very nature require persons who hold them to perform one or more [of the] functions”\\n\\ndescribed in ERISA’s definition of a “fiduciary,” provided in section 1002(21)(A). See 29\\n\\nC.F.R. § 2509.75-8 (D-3). For example, “a plan administrator . . . must, [by] the very\\n\\nnature of his position, have discretionary authority or discretionary responsibility in the\\n\\nadministration of the plan.” Id. (internal quotation marks omitted). Consequently,\\n\\n“[p]ersons who hold such positions will . . . be fiduciaries.” Id. On the other hand, the\\n\\n1975 Department of Labor bulletin suggests that “a person who performs purely ministerial\\n\\nfunctions . . . within a framework of policies, interpretations, rules, practices and\\n\\nprocedures made by other persons,” such as applying “rules determining eligibility for\\n\\nparticipation or benefits,” “advising participants of their rights and options under the plan,”\\n\\nand collecting “contributions . . . as provided in the plan,” is not acting in a fiduciary\\n\\ncapacity. See id. at (D-2). In sum, the 1975 bulletin explains that a plan administrator is a\\n\\nfunctional fiduciary with respect to plan administration, but a person or entity that is not a\\n\\n\\n 11\\n ERISA authorizes the Secretary of Labor to “prescribe such regulations as he\\nfinds necessary or appropriate to carry out the provisions of [the Act].” See 29 U.S.C.\\n§ 1135.\\n\\n 12\\n\\fplan administrator and performs only ministerial functions in relation to a plan is not a\\n\\nfunctional fiduciary.\\n\\n B.\\n\\n 1.\\n\\n We begin our analysis of this appeal with Rema’s position that NCG’s joint roles as\\n\\nthe plan administrator and the named fiduciary definitively answer the fiduciary capacity\\n\\ninquiry. Our precedents on the topic of fiduciary capacity under ERISA have addressed\\n\\nprimarily the nature of a functional fiduciary — perhaps because plan administrators and\\n\\nnamed fiduciaries do not normally disclaim their fiduciary roles and responsibilities in the\\n\\nfederal courts. See, e.g., Gordon v. CIGNA Corp., 890 F.3d 463, 474-76 (4th Cir. 2018);\\n\\nCuster, 89 F.3d at 1162-63; Coleman, 969 F.2d at 61-62. But we are now confronted with\\n\\nprecisely such a situation. That is, despite being identified as both the plan administrator\\n\\nand the named fiduciary for the Plan, NCG maintains in these proceedings that it is not a\\n\\nfiduciary for the purposes of Rema’s ERISA claims.\\n\\n Calling NCG’s assertion into substantial doubt, the Supreme Court has itself\\n\\nrecognized that, as logic would suggest, a named fiduciary is “an ERISA fiduciary.” See\\n\\nMertens, 508 U.S. at 251 (internal quotation marks omitted). And we have expressed a\\n\\nsimilar, common-sensical understanding. See Tatum, 761 F.3d at 371 (“[T]he Committees\\n\\nare the only named fiduciaries in the governing Plan document. As such, these entities are\\n\\nproper defendants in a suit alleging breach of fiduciary duty with respect to the Plan.”);\\n\\nCuster, 89 F.3d at 1161 (“[T]he concept of a fiduciary under ERISA . . . includes . . . those\\n\\nnamed as fiduciaries in the plan instrument.”). We have likewise recognized that “a plan\\n\\n 13\\n\\fadministrator is a fiduciary with respect to her own policy.” See Canada Life Assurance\\n\\nCo. v. Estate of Lebowitz, 185 F.3d 231, 237 (4th Cir. 1999). In addition, other courts of\\n\\nappeals have ruled that a plaintiff establishes a defendant’s fiduciary capacity by alleging\\n\\nthat the defendant is the named fiduciary for an ERISA plan. See, e.g., Jordan v. Fed.\\n\\nExpress Corp., 116 F.3d 1005, 1014 & n.16 (3d Cir. 1997) (emphasizing that named\\n\\nfiduciary in plan instrument is fiduciary); Maez v. Mountain States Tel. & Tel., Inc., 54\\n\\nF.3d 1488, 1498 (10th Cir. 1995) (concluding that complaint sufficiently demonstrated\\n\\ndefendants’ fiduciary capacities by alleging that defendants were named fiduciaries).\\n\\n To the extent that our decisions have said that “being a fiduciary under ERISA is\\n\\nnot an all-or-nothing situation,” our Court has never done so in the context of assessing\\n\\nwhether a plan administrator and a named fiduciary is, in fact, a fiduciary. See Gordon,\\n\\n890 F.3d at 474 (assessing status of functional fiduciary). That is, our recognition of such\\n\\na principle — that ERISA fiduciary status can be a fluid concept — has come in assessing\\n\\nthe nature of a functional fiduciary, as defined by section 1002(21)(A) of Title 29. See id.;\\n\\nColeman, 969 F.2d at 61-62. And that principle makes sense in light of ERISA’s definition\\n\\nof a functional fiduciary. See Coleman, 969 F.2d at 61 (“[T]he inclusion of the phrase ‘to\\n\\nthe extent’ in § 1002(21)(A) means that a party is a fiduciary only as to the activities which\\n\\nbring the person within the definition.”).\\n\\n Our precedents should not, however, be unduly expanded to suggest that an entity\\n\\nthat serves as both the plan administrator and the named fiduciary for an ERISA-covered\\n\\nplan is not an ERISA fiduciary. Doing so would ignore ERISA’s undisputable recognition\\n\\n\\n\\n 14\\n\\fof named fiduciaries. 12 And such a ruling would create conflicts with controlling Supreme\\n\\nCourt precedent, see Mertens, 508 U.S. at 251; our relevant decisions, see Tatum, 761 F.3d\\n\\nat 371; Custer, 89 F.3d at 1161; and the decisions of our sister circuits, see, e.g., Jordan,\\n\\n116 F.3d at 1014 & n.16. In addition, the adoption of a rule that requires a plan participant\\n\\nor beneficiary to allege, in every case, that the plan administrator and named fiduciary is\\n\\nalso a functional fiduciary would undermine our obligation to liberally construe fiduciary\\n\\nstatus under ERISA. See Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115,\\n\\n123 (4th Cir. 1991) (emphasizing that ERISA is a “remedial statute” that “should be\\n\\nliberally construed in favor of protecting the participants in employee benefits plans”); see\\n\\nalso Johnson v. Couturier, 572 F.3d 1067, 1076 (9th Cir. 2009) (explaining that courts\\n\\n“construe ERISA fiduciary status liberally, consistent with ERISA’s policies and\\n\\nobjectives” (internal quotation marks omitted)). Put succinctly, a participant or beneficiary\\n\\nis generally not required to allege that the plan administrator and named fiduciary also\\n\\nsatisfies the functional fiduciary test in order to state a plausible fiduciary breach claim\\n\\nagainst it under ERISA. 13\\n\\n\\n 12\\n ERISA employs the terms “named fiduciary” and “named fiduciaries” in five\\nseparate sections. See 29 U.S.C. §§ 1002(18), 1102, 1103(a), 1105(c), 1133(2).\\n 13\\n We are not suggesting that a plan administrator and named fiduciary (serving in\\nthose dual roles) will be subject to suit for breach of fiduciary duty as to all plan-related\\nactions. For example, liability might be limited by the exercise of authority or control over\\nonly certain plan-related activities. See 29 C.F.R. § 2509.75-8 (FR-13) (explaining that\\nnamed fiduciary will “not be liable for acts and omissions of other named fiduciaries in\\ncarrying out fiduciary responsibilities which have been allocated to them,” with certain\\nexceptions). Similarly, there is no liability for breach of fiduciary duty if the challenged\\nconduct of the plan administrator and named fiduciary is not fiduciary in nature, as there\\n(Continued)\\n 15\\n\\f In concluding that the Complaint fails to sufficiently allege NCG’s fiduciary status,\\n\\nthe Opinion failed to consider and assess the relevant decisions on plan administrators and\\n\\nnamed fiduciaries and their application to these ERISA claims. Indeed, it did not recognize\\n\\nthe significance of NCG’s status as the joint plan administrator and named fiduciary, and\\n\\nit erroneously focused on our precedents addressing functional fiduciaries. Although those\\n\\nerrors alone support a vacatur and a remand, the Opinion also erred in making its functional\\n\\nfiduciary analysis.\\n\\n 2.\\n\\n Aside from NCG’s plausibly alleged fiduciary status resulting from its joint roles as\\n\\nthe plan administrator and the named fiduciary, we are satisfied that the Complaint\\n\\nsufficiently alleges that NCG is a fiduciary with respect to the particular conduct giving\\n\\nrise to Rema’s ERISA claims. That is, the Complaint shows that NCG acted as a functional\\n\\nfiduciary, within the meaning of section 1002(21)(A) of Title 29, with respect to each of\\n\\nthe ERISA claims. We will address separately the facts that support those two claims.\\n\\n a.\\n\\n In her first ERISA claim, Rema alleges that NCG failed to inform or misinformed\\n\\nWayne about his continued eligibility under the Plan. She further alleges that NCG\\n\\n\\n\\n\\ncan be no breach of a nonexistent fiduciary duty. See Pegram, 530 U.S. at 226 (explaining\\nthat “the threshold question” in assessing a breach of fiduciary duty claim is whether the\\nperson charged with the breach was performing a fiduciary responsibility “when taking the\\naction subject to the complaint”); Livick v. Gillette Co., 524 F.3d 24, 29 (1st Cir. 2008)\\n(recognizing that “[a] fiduciary named in an ERISA plan can undertake non-fiduciary\\nduties”).\\n\\n 16\\n\\fneglected to notify Wayne that he had the option to convert or port his life insurance\\n\\ncoverage. Based on the relevant precedents and the Department of Labor’s 1975 bulletin,\\n\\nwe are satisfied that this claim adequately pleads NCG’s status as a functional fiduciary.\\n\\n In Griggs v. E.I. DuPont de Nemours & Co., 237 F.3d 371, 379-84 (4th Cir. 2001),\\n\\nwe approved a fiduciary breach claim where a plan administrator had failed to correct the\\n\\nplan participant’s material misunderstanding of the relevant plan, and where that\\n\\nmisunderstanding had caused an economic loss to the participant. We explained that the\\n\\nplan administrator was required to speak up “‘when [it] kn[ew] that [its] silence might be\\n\\nharmful.’” Id. at 380 (quoting Bixler v. Cent. Pa. Teamsters Health & Welfare Fund, 12\\n\\nF.3d 1292, 1300 (3d Cir. 1993)). To support that proposition, we relied on the decision of\\n\\nanother court of appeals that recognized a breach of fiduciary duty claim where “‘an\\n\\nineligible person contributes to a fund’” and the plan fiduciary fails “‘to inform him of his\\n\\nineligibility within a reasonable time.’” See id. at 381 (quoting Eddy v. Colonial Life Ins.\\n\\nCo. of Am., 919 F.2d 747, 751 (D.C. Cir. 1990)).\\n\\n In our 2018 Gordon decision, we were again confronted with a breach of fiduciary\\n\\nduty claim predicated on the defendant’s silence. There, an employee had paid\\n\\nsupplemental life insurance premiums to his employer for coverage under a group life\\n\\ninsurance plan, and the employer submitted the premium payments to the insurer for the\\n\\nplan. See Gordon, 890 F.3d at 469. When the employee died, his beneficiary filed a claim\\n\\nfor supplemental life insurance benefits with the insurer. Id. at 468. Despite its acceptance\\n\\nof the employee’s premiums, the insurer denied the beneficiary’s claim because the\\n\\nemployee had failed to submit certain paperwork demonstrating his eligibility for\\n\\n 17\\n\\fsupplemental coverage. Id. The plaintiff sued the insurer under ERISA, alleging a claim\\n\\nfor breach of fiduciary duty based on the insurer’s failure “to notify [the employee] that he\\n\\nneeded to submit additional evidence of insurability — while simultaneously collecting\\n\\npremiums for unapproved coverage.” Id. at 469.\\n\\n On appeal from a summary judgment award to the insurer, we observed that the plan\\n\\ndocuments designated the insurer as the claim administrator and the employer as the plan\\n\\nadministrator. See Gordon, 890 F.3d at 474. Although the insurer was responsible for\\n\\nadjudicating benefits claims under the plan, we ruled that it was not a fiduciary with respect\\n\\nto the failure to notify the employee about the paperwork requirement. Id. Instead, we\\n\\nruled that the fiduciary for a claim related to that failure was the employer, which the plan\\n\\ndocuments tasked with “day-to-day program administration,” such as collecting premiums,\\n\\nverifying eligibility, and submitting applications for supplemental coverage. Id. (internal\\n\\nquotation marks omitted).\\n\\n Our Griggs and Gordon precedents undermine the Opinion’s ruling that the first\\n\\nERISA claim fails to allege NCG’s fiduciary capacity. That is, when a plan administrator\\n\\nis responsible for verifying employee eligibility for participation in an employee benefit\\n\\nplan, that administrator acts in a fiduciary capacity with regard to that obligation. See\\n\\nGordon, 890 F.3d at 474. Additionally, a plan administrator acts in a fiduciary capacity\\n\\nwhen it conveys (or fails to convey) material information to a plan participant concerning\\n\\nthe retention of eligibility for a benefit plan when that administrator is aware that the\\n\\nparticipant wishes to maintain his participation therein. See Griggs, 237 F.3d at 381-82;\\n\\nEddy, 919 F.2d at 751. Viewed in the light most favorable to Rema, the Complaint\\n\\n 18\\n\\fplausibly alleges that, in these circumstances, NCG performed such fiduciary activities as\\n\\nthe plan administrator.\\n\\n If there were any doubt about whether the allegations in support of the first ERISA\\n\\nclaim establish NCG’s status as a functional fiduciary pursuant to section 1002(21)(A), it\\n\\nis entirely assuaged by NCG’s role as the plan administrator. As the Department of Labor\\n\\nhas explained, a plan administrator by “the very nature of [its] position, ha[s] discretionary\\n\\nauthority or discretionary responsibility in the administration of the plan within the\\n\\nmeaning of section [1002(21)(A)],” and is therefore a functional fiduciary. See 29 C.F.R.\\n\\n§ 2509.75-8 (D-3); Estate of Lebowitz, 185 F.3d at 237 (“By the very nature of the position,\\n\\na plan administrator is a fiduciary with respect to her own policy.”); U.S. Steel Mining Co.\\n\\nv. Dist. 17, United Mine Workers of Am., 897 F.2d 149, 152 (4th Cir. 1990) (“As the plan\\n\\nadministrator, the fund is clearly a fiduciary.”). 14\\n\\n b.\\n\\n Turning to Rema’s second ERISA claim, she alleges therein that NCG breached the\\n\\nfiduciary duty that it owed to her as a beneficiary when Vice President Baham advised her\\n\\n\\n 14\\n In dismissing Rema’s first ERISA claim, the Opinion relied primarily on an\\nunpublished decision ruling that an employer was not acting as a fiduciary when it accepted\\nan employee’s life insurance premiums “without advising him that he was not eligible for\\ngroup life insurance” under the employer’s group life insurance plan. See Opinion 4-5\\n(citing Moon v. BWX Tech., Inc., 577 F. App’x 224, 231 (4th Cir. 2014)). Our non-\\nprecedential decision in Moon, however, failed to mention Griggs, which was decided\\nthirteen years earlier. See Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir.\\n2006) (explaining that unpublished decisions “have no precedential value” and “are entitled\\nonly to the weight they generate by the persuasiveness of their reasoning” (internal\\nquotation marks omitted)). And, unlike this case, the employer in Moon was neither a plan\\nadministrator nor a named fiduciary.\\n\\n 19\\n\\fnot to appeal Unum’s denial of her benefits claim. Pertinent to this claim, the Supreme\\n\\nCourt and our Court have both recognized that conveying information about plan benefits\\n\\nto a beneficiary in order to assist plan-related decisions can constitute fiduciary activity.\\n\\nSee Varity Corp. v. Howe, 516 U.S. 489, 502 (1996) (explaining that “[c]onveying\\n\\ninformation about the likely future of plan benefits, thereby permitting beneficiaries to\\n\\nmake an informed choice about continued participation” is a fiduciary activity); Griggs,\\n\\n237 F.3d at 379-80 (accepting that plan administrator acted in fiduciary capacity by\\n\\ncommunicating with participant about pension benefits).\\n\\n In these circumstances, we are satisfied that the Complaint plausibly alleges that\\n\\nVice President Baham engaged in a fiduciary activity when he instructed Rema that she\\n\\nneed not appeal Unum’s decision denying her benefits claim. In so instructing Rema,\\n\\nBaham was not merely “advising [a] participant[] of [her] rights and options under the\\n\\n[P]lan.” See 29 C.F.R. § 2509.75-8 (D-2). Instead, in responding to Rema’s request for\\n\\nassistance, Baham offered tailored advice concerning her decision on whether to pursue an\\n\\nappeal. See J.A. 71 (stating that Plan beneficiary should contact NCG if she has questions\\n\\nabout the Plan). Such conduct by an employee imbued with a plan administrator’s\\n\\nauthority constitutes discretionary activity in the “administration” of the plan, and it is thus\\n\\na fiduciary activity under ERISA. See 29 U.S.C. § 1002(21)(A)(iii) (providing that a\\n\\nperson is a functional fiduciary when “he has any discretionary authority or discretionary\\n\\nresponsibility in the administration of [a] plan”); In re DeRogatis, 904 F.3d 174, 192 (2d\\n\\n\\n\\n\\n 20\\n\\fCir. 2018) (explaining that individualized consultation regarding plan benefits constitutes\\n\\nfiduciary activity). 15\\n\\n\\n\\n IV.\\n\\n Pursuant to the foregoing, we vacate the district court’s dismissal of the ERISA\\n\\nclaims and remand for such other and further proceedings as may be appropriate.\\n\\n VACATED AND REMANDED\\n\\n\\n\\n\\n 15\\n The Opinion relied on another unpublished decision in dismissing the second\\nERISA claim. See Opinion 4-5 (citing Estate of Weeks v. Advance Stores Co., 99 F. App’x\\n470 (4th Cir. 2004)). That decision is both non-precedential and distinguishable. Weeks\\nruled that an administrative employee was not an ERISA fiduciary when she “simply\\nrepeated information that was given to her by upper-management or that had already been\\ninputted into the company’s computer database.” See Estate of Weeks, 99 F. App’x at 476.\\nIn contrast, Vice President Baham offered tailored advice, over a sustained period,\\nregarding Rema’s right to prosecute an appeal, and the Complaint does not reveal that he\\nwas merely relaying or repeating information.\\n\\n 21\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4419707/\", \"author_raw\": \"KING, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"KING"},"judge2":{"kind":"string","value":"DIAZ"},"judge3":{"kind":"string","value":"QUATTLEBAUM"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4642454/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Rema DAWSON-MURDOCK, Plaintiff - Appellant, v. NATIONAL COUNSELING GROUP, INC.; National Counseling Group, Inc. Plan, Defendants - Appellees.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-07-24\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1989\n\n\nREMA DAWSON-MURDOCK,\n\n Plaintiff – Appellant,\n\n v.\n\nNATIONAL COUNSELING GROUP, INC.; NATIONAL COUNSELING\nGROUP, INC. PLAN,\n\n Defendants – Appellees.\n\n\nAppeal from the United States District Court for the Eastern District of Virginia, at\nRichmond. John A. Gibney, Jr., District Judge. (3:18-cv-00058-JAG)\n\n\nArgued: May 8, 2019 Decided: July 24, 2019\n\n\nBefore KING, DIAZ, and QUATTLEBAUM, Circuit Judges.\n\n\nVacated and remanded by published opinion. Judge King wrote the opinion, in which\nJudge Diaz and Judge Quattlebaum joined.\n\n\nARGUED: Elizabeth Hopkins, KANTOR & KANTOR LLP, Northridge, California, for\nAppellant. Jeremy David Capps, HARMAN CLAYTOR CORRIGAN & WELLMAN,\nP.C., Glen Allen, Virginia, for Appellees. ON BRIEF: Michelle L. Roberts, KANTOR\n& KANTOR LLP, Northridge, California, for Appellant. Laura Lee Miller, HARMAN\nCLAYTOR CORRIGAN & WELLMAN, P.C., Glen Allen, Virginia, for Appellees.\n\fKING, Circuit Judge:\n\n Plaintiff Rema Dawson-Murdock (“Rema”) appeals from the dismissal of her civil\n\naction in the Eastern District of Virginia. Rema sued National Counseling Group, Inc.\n\n(“NCG”), alleging two claims under the Employee Retirement Income Security Act of\n\n1974 (“ERISA”) (codified primarily in Title 29 of the United States Code). See Dawson-\n\nMurdock v. Nat’l Counseling Grp., Inc., No. 3:18-cv-00058 (E.D. Va. Jan. 26, 2018), ECF\n\nNo. 1 (the “Complaint”). 1 More specifically, the Complaint alleges that NCG contravened\n\nERISA by breaching its fiduciary duties in the administration of a group life insurance plan\n\nin which Rema’s late husband had enrolled and for which NCG is the “named fiduciary.”\n\nThe district court dismissed Rema’s ERISA claims pursuant to Federal Rule of Civil\n\nProcedure 12(b)(6), concluding that NCG’s relevant actions were not taken in a fiduciary\n\ncapacity. See Dawson-Murdock v. Nat’l Counseling Grp., Inc., No. 3:18-cv-00058 (E.D.\n\nVa. Aug. 7, 2018), ECF No. 12 (the “Opinion”). Because the Complaint sufficiently\n\nalleges NCG’s fiduciary status in relation to those claims, we vacate and remand.\n\n\n\n\n 1\n The Complaint also names a second defendant, the National Counseling Group,\nInc. Plan, but it contains no allegations against that defendant. See 29 U.S.C.\n§ 1132(d)(1) (authorizing suit against employee benefit plan). The district court described\nthe National Counseling Group, Inc. Plan as a nominal defendant that does not exist apart\nfrom NCG. Rema does not contest that description, and she focuses her arguments only\non her claims against NCG.\n\n 2\n\f I.\n\n A.\n\n Because this appeal stems from a Rule 12(b)(6) dismissal, we accept the facts\n\nalleged in the Complaint as true and recite them in the light most favorable to Rema. See\n\nFeminist Majority Found. v. Hurley, 911 F.3d 674, 680 (4th Cir. 2019). As part of the\n\nbenefits package that it offers to employees, NCG provides its workers the opportunity to\n\nenroll in a group life insurance plan (the “Plan”). The insurer for the Plan is Unum Life\n\nInsurance Company of America (“Unum”). The documents that constitute the Plan are the\n\nSummary of Benefits and the Summary Plan Description (the “SPD”). 2\n\n The Summary of Benefits explains that an NCG employee who desires to enroll in\n\nthe Plan must pay a premium to NCG, which in turn sends the premium payment to Unum.\n\nIn addition to transmitting premiums, NCG is obliged to “regular[ly]” provide Unum with\n\ninformation about employees “who are eligible to become insured; whose amounts of\n\ncoverage change; and[] whose coverage ends.” See J.A. 28. 3\n\n\n\n\n 2\n A summary plan description (or SPD) has been defined as an “outline of an\nemployee benefit plan, containing such information as the identity of the plan\nadministrator, the requirements for eligibility and participation in the plan, circumstances\nthat may result in disqualification or denial of benefits, and the identity of any insurers\nresponsible for financing or administering the plan.” See Black’s Law Dictionary (10th\ned. 2014). In this appeal, we consider the SPD and the Summary of Benefits — which are\nattached to the Complaint — because those documents are integral to the ERISA claims\nand neither party questions their authenticity. See Rockville Cars, LLC v. City of Rockville,\n891 F.3d 141, 145 (4th Cir. 2018).\n 3\n Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by\nthe parties in this appeal.\n\n 3\n\f The SPD specifies that, for the purposes of ERISA, NCG “is the [p]lan\n\n[a]dministrator and named fiduciary of the Plan,” and that benefits under the Plan are\n\n“administered” by Unum. See J.A. 65 (emphasis added). The SPD also explains that\n\n“ERISA imposes duties upon the people who are responsible for the operation of the . . .\n\n[P]lan,” and that “[t]he people who operate [the] Plan, called ‘fiduciaries’ of the Plan, have\n\na duty to do so prudently and in the interest of . . . Plan participants and beneficiaries.” Id.\n\nat 71. And the SPD instructs Plan participants and beneficiaries to contact NCG if they\n\nhave questions about the Plan.\n\n B.\n\n While working full-time for NCG, Rema’s late husband, Wayne Murdock\n\n(“Wayne”), elected $150,000 in life insurance coverage through the Plan. Wayne\n\nidentified Rema as his primary beneficiary for any benefits resulting from the coverage.\n\nTo secure that coverage, Wayne paid premiums to NCG, which forwarded those payments\n\nto Unum.\n\n On March 21, 2016, Wayne stopped working full-time for NCG and began working\n\npart-time for it. Although enrollment in the Plan is limited to full-time NCG employees,\n\nNCG either never informed or misinformed Wayne about whether he remained eligible to\n\nparticipate in the Plan. Additionally, although Wayne could have converted or ported his\n\nlife insurance coverage after transitioning to part-time status, NCG never notified him of\n\n\n\n\n 4\n\fthose options. 4 The parties have not disputed that Wayne continued to pay premiums to\n\nNCG after March 21, 2016, despite his apparent ineligibility.\n\n On August 30, 2016, Wayne died. Rema, as Wayne’s widow and beneficiary,\n\nthereafter submitted a life insurance benefits claim for $150,000 to Unum pursuant to\n\nWayne’s participation in the Plan. On October 24, 2016, before Rema heard anything from\n\nUnum regarding her claim, Christopher Baham — NCG’s Vice President of Human\n\nResources — emailed Rema to notify her that Unum had denied it. Baham assured Rema,\n\nhowever, that NCG would directly pay her the claim amount and work with Unum to\n\nrecoup the payment. Baham also advised Rema that she would “not have to deal with\n\nUnum insurance company going forward.” See Complaint ¶ 16. Three days later, on\n\nOctober 27, 2016, she received a letter from Unum stating that it had denied her benefits\n\nclaim because Wayne “was not eligible for coverage due to his part-time status and [he]\n\nfailed to convert or port his coverage.” Id. ¶ 17.\n\n During the next four months, Rema and Vice President Baham communicated\n\nregularly regarding her life insurance benefits claim. Those communications included the\n\nfollowing:\n\n • On November 7, 2016, Rema emailed a copy of Unum’s denial letter\n to Baham and asked him for advice regarding her next steps;\n\n • The following day, Baham responded via email and told Rema that\n she did not need to do anything else, such as appeal the claim denial,\n and that NCG was “working through the details,” see Complaint\n\n 4\n Under the Plan, to convert coverage means to change from a group insurance\npolicy to an individual insurance policy. On the other hand, to port coverage means to\nmaintain coverage under the group insurance policy.\n\n 5\n\f ¶¶ 20, 39;\n\n • On November 15, 2016, Baham emailed Rema and said that NCG was\n still working on her claim;\n\n • About two weeks later, Baham again emailed Rema, stating that NCG\n was “working through a separate insurance company to pay out\n Wayne’s benefits,” and that Unum would “not be involved at all.” Id.\n ¶ 22. He again reassured her that “the claim” would be paid, id.;\n\n • On December 8, 2016, Baham told Rema that he was “making\n progress toward resolution of the payment,” id. ¶ 23;\n\n • Later that month, Baham wrote to Rema that “NCG was still moving\n forward,” id. ¶ 24;\n\n • On January 19, 2017, Baham emailed Rema to advise her that he had\n “escalated [her claim] to another level so [he] hope[d] to soon have\n [a] resolution on [NCG’s] side,” id. ¶ 25;\n\n • During the first two weeks of February 2017, Baham told Rema that\n he was still working on the claim, that it appeared a resolution was\n “close,” and that there had been “some slow progress” on the claim,\n id. ¶¶ 27, 28; and\n\n • Finally, on February 21, 2017, Baham emailed Rema and asked to\n speak with her by telephone. During the ensuing phone call, Baham\n informed her that NCG would not pay her any money on the claim.\n\n Based on the representations made to her by Vice President Baham from October\n\n2016 through February 2017, Rema did not appeal Unum’s denial of her benefits claim.\n\nBy the time Baham informed Rema that NCG would not pay her claim, the ninety-day\n\nwindow for her to file an appeal with Unum had closed. 5\n\n\n\n 5\n According to the SPD, a participant or beneficiary must appeal a denial of a claim\nwithin ninety days of receiving Unum’s denial letter. Because Rema received her denial\nletter on October 27, 2016, she had until January 25, 2017, to lodge an appeal with Unum.\n\n 6\n\f C.\n\n In January 2018, Rema filed her Complaint against NCG in the Eastern District of\n\nVirginia. Pertinent to this appeal, the Complaint alleges two causes of action under a\n\nprovision of ERISA that authorizes a participant or beneficiary of an employee benefit plan\n\nsubject to ERISA to pursue a civil action to obtain “appropriate equitable relief” for\n\nviolations of certain ERISA provisions “or the terms of the plan.” See 29 U.S.C.\n\n§ 1132(a)(3). 6 In the first ERISA claim, the Complaint alleges that NCG breached the\n\nfiduciary duty that it owed to Wayne, as a Plan participant, because it either failed to inform\n\nhim or misinformed him about his continued eligibility under the Plan and neglected to\n\nnotify him that he had the option to convert or port his life insurance coverage. In the\n\nsecond ERISA claim, the Complaint alleges that NCG breached the fiduciary duty that it\n\nowed to Rema, as a Plan beneficiary, when Vice President Baham advised her that she need\n\nnot appeal Unum’s denial of her benefits claim. 7\n\n On March 30, 2018, NCG moved the district court for dismissal of the Complaint\n\npursuant to Federal Rule of Civil Procedure 12(b)(6). In support of its dismissal motion,\n\nNCG argued that neither it nor Vice President Baham was acting as a fiduciary when they\n\ntook the actions underlying Rema’s ERISA claims. That is, NCG maintained that it and\n\n\n 6\n The parties in these proceedings do not dispute that the Plan is subject to the\nprovisions of ERISA. See 29 U.S.C. § 1003(a) (defining employee benefit plan governed\nby ERISA).\n 7\n The Complaint also alleged two state law claims, which the district court dismissed\nas preempted by ERISA. Rema does not contest on appeal the dismissal of those two\nclaims.\n\n 7\n\fBaham were acting only in an administrative capacity for the Plan, which did not satisfy\n\nERISA’s definition of a “fiduciary,” as codified in 29 U.S.C. § 1002(21)(A). Thus,\n\naccording to NCG, they could not have breached any fiduciary duties owed to Wayne or\n\nRema.\n\n On August 7, 2018, the district court granted NCG’s motion to dismiss and\n\ndismissed Rema’s claims. In its accompanying Opinion, the court ruled that the Complaint\n\nfailed to sufficiently allege that NCG satisfies ERISA’s definition of a fiduciary. The\n\nOpinion explained that, in order to qualify as a fiduciary under ERISA, an employer must\n\nhave some “discretionary control over” the employee benefit plan. See Opinion 5. And\n\nthe Opinion concluded that the Complaint did not adequately allege that NCG (and its high-\n\nranking employee, Vice President Baham) exercised “discretionary control regarding\n\nbenefits decisions” under the Plan. Id. at 6. Instead, the Opinion emphasized that Unum\n\nmade the benefits decisions for the Plan. The Opinion also described NCG’s and Baham’s\n\nalleged actions as merely “administrative” and thus not of a fiduciary nature. Id. at 5.\n\nRema noted a timely appeal from the dismissal rulings, and we possess jurisdiction\n\npursuant to 28 U.S.C. § 1291. 8\n\n\n\n\n 8\n Although neither the dismissal order nor the Opinion specified whether the\nComplaint was dismissed with prejudice, nothing in the record rebuts the presumption that\nit was so rendered. See McLean v. United States, 566 F.3d 391, 396 (4th Cir. 2009)\n(“Courts have held that, unless otherwise specified, a dismissal for failure to state a claim\nunder Rule 12(b)(6) is presumed to be both a judgment on the merits and to be rendered\nwith prejudice.”).\n\n 8\n\f II.\n\n We review de novo a district court’s dismissal of a complaint pursuant to Federal\n\nRule of Civil Procedure 12(b)(6). See Feminist Majority Found. v. Hurley, 911 F.3d 674,\n\n685 (4th Cir. 2019). In conducting such a review, we accept the complaint’s “factual\n\nallegations as true and draw all reasonable inferences in favor of the plaintiff[].” Id. “A\n\ndistrict court can properly grant a Rule 12(b)(6) dismissal only if the complaint fails to\n\ncontain sufficient factual matter, accepted as true, to state a claim to relief that is plausible\n\non its face.” Id. (internal quotation marks omitted).\n\n\n\n III.\n\n On appeal, Rema contests the district court’s dismissal of her two ERISA claims.\n\nShe contends that NCG’s alleged conduct necessarily constitutes fiduciary activity because\n\nNCG is both the plan administrator and the named fiduciary. Even if those roles are\n\ninsufficient to establish that NCG’s conduct in relation to the Plan is fiduciary in nature,\n\nRema maintains that NCG and Vice President Baham functioned as fiduciaries in taking\n\nthe actions alleged in the Complaint, and that the Opinion erred in ruling otherwise. 9\n\nSpecifically, she maintains that NCG acted in a fiduciary capacity by: (1) failing to inform\n\n\n\n 9\n Except when describing Baham’s individual actions, our discussion of the ERISA\nclaims hereinafter refers to NCG and Vice President Baham collectively as “NCG.” The\nparties do not dispute that we can consider Baham’s conduct against NCG in assessing the\nERISA claims. See Deschamps v. Bridgestone Ams., Inc. Salaried Emps. Ret. Plan, 840\nF.3d 267, 278-79 (6th Cir. 2016) (applying agency principles to employee in assessing\nbreach of fiduciary duty claim against employer).\n\n 9\n\for misinforming Wayne about his continued eligibility under the Plan and neglecting to\n\nnotify Wayne that he had the option to convert or port his life insurance coverage; and\n\n(2) advising Rema not to appeal Unum’s denial of her benefits claim. Before assessing the\n\nalleged fiduciary misconduct, we will identify and discuss some pertinent legal principles\n\nregarding ERISA fiduciaries.\n\n A.\n\n ERISA specifies several duties, “derived from the common law of trusts,” that are\n\nimposed on a fiduciary for an employee benefit plan. See Tibble v. Edison Int’l, 135 S. Ct.\n\n1823, 1828 (2015) (internal quotation marks omitted); see also 29 U.S.C. § 1104(a)\n\n(defining “standard of care” for ERISA fiduciary); Pegram v. Herdrich, 530 U.S. 211, 224\n\n(2000) (“The[] responsibilities imposed by ERISA have the familiar ring of their source in\n\nthe common law of trusts.”). To allege a breach of any such fiduciary duty, a plan\n\nparticipant or beneficiary must first establish “that the party charged with the breach” is, in\n\nfact, a fiduciary. See Coleman v. Nationwide Life Ins. Co., 969 F.2d 54, 60 (4th Cir. 1992).\n\n ERISA contemplates two general types of fiduciaries. See, e.g., Mertens v. Hewitt\n\nAssocs., 508 U.S. 248, 251 (1993); Custer v. Sweeney, 89 F.3d 1156, 1161 (4th Cir. 1996).\n\nThe first type is a “named fiduciary,” which — as the term suggests — is “a fiduciary who\n\nis named” in the plan documents. See 29 U.S.C. § 1102(a)(2). 10 The Act requires every\n\n\n 10\n A “named fiduciary” also includes “a fiduciary . . . who, pursuant to a procedure\nspecified in the plan, is identified as a fiduciary (A) by a person who is an employer or\nemployee organization with respect to the plan or (B) by such an employer and such an\nemployee organization acting jointly.” See 29 U.S.C. § 1102(a)(2). ERISA permits a\nnamed fiduciary “to designate persons other than named fiduciaries to carry out fiduciary\n(Continued)\n 10\n\fcovered employee benefit plan to “provide for one or more named fiduciaries who jointly\n\nor severally shall have authority to control and manage the operation and administration of\n\nthe plan.” Id. § 1102(a)(1). That obligation “ensures that responsibility for managing and\n\noperating the plan — and liability for mismanagement — are focused with a degree of\n\ncertainty.” See Tatum v. RJR Pension Inv. Comm., 761 F.3d 346, 371 (4th Cir. 2014)\n\n(alterations and internal quotation marks omitted).\n\n The second type of fiduciary contemplated by ERISA has been called a “functional\n\nfiduciary.” See Tatum, 761 F.3d at 357 n.6. Section 1002(21)(A) of Title 29 defines such\n\na fiduciary and provides that\n\n a person is a fiduciary with respect to a plan to the extent (i) he exercises any\n discretionary authority or discretionary control respecting management of\n such plan or exercises any authority or control respecting management or\n disposition of its assets, (ii) he renders investment advice for a fee or other\n compensation, direct or indirect, with respect to any moneys or other\n property of such plan, or has any authority or responsibility to do so, or (iii)\n he has any discretionary authority or discretionary responsibility in the\n administration of such plan.\n\nSee 29 U.S.C. § 1002(21)(A). In summarizing the two general types of ERISA fiduciaries,\n\nwe have explained that “the concept of a fiduciary under ERISA . . . includes not only those\n\nnamed as fiduciaries in the plan instrument, . . . but [also] any individual who de facto\n\nperforms specified discretionary functions with respect to the management, assets, or\n\n\n\n\nresponsibilities . . . under the plan.” See id. § 1105(c)(1)(B). Here, the Plan does not\ndesignate any person or entity other than NCG to carry out fiduciary responsibilities with\nrespect to plan administration. That is, NCG is the only named fiduciary for plan\nadministration.\n\n 11\n\fadministration of a plan.” See Custer, 89 F.3d at 1161 (alterations and internal quotation\n\nmarks omitted).\n\n In assessing whether a person or entity qualifies as a fiduciary under ERISA, we\n\nhave consistently utilized an interpretive bulletin published by the Department of Labor in\n\n1975. See 29 C.F.R. § 2509.75-8; Custer, 89 F.3d at 1162; Coleman, 969 F.2d at 61-62.11\n\nThe bulletin emphasizes that “[s]ome offices or positions of an employee benefit plan by\n\ntheir very nature require persons who hold them to perform one or more [of the] functions”\n\ndescribed in ERISA’s definition of a “fiduciary,” provided in section 1002(21)(A). See 29\n\nC.F.R. § 2509.75-8 (D-3). For example, “a plan administrator . . . must, [by] the very\n\nnature of his position, have discretionary authority or discretionary responsibility in the\n\nadministration of the plan.” Id. (internal quotation marks omitted). Consequently,\n\n“[p]ersons who hold such positions will . . . be fiduciaries.” Id. On the other hand, the\n\n1975 Department of Labor bulletin suggests that “a person who performs purely ministerial\n\nfunctions . . . within a framework of policies, interpretations, rules, practices and\n\nprocedures made by other persons,” such as applying “rules determining eligibility for\n\nparticipation or benefits,” “advising participants of their rights and options under the plan,”\n\nand collecting “contributions . . . as provided in the plan,” is not acting in a fiduciary\n\ncapacity. See id. at (D-2). In sum, the 1975 bulletin explains that a plan administrator is a\n\nfunctional fiduciary with respect to plan administration, but a person or entity that is not a\n\n\n 11\n ERISA authorizes the Secretary of Labor to “prescribe such regulations as he\nfinds necessary or appropriate to carry out the provisions of [the Act].” See 29 U.S.C.\n§ 1135.\n\n 12\n\fplan administrator and performs only ministerial functions in relation to a plan is not a\n\nfunctional fiduciary.\n\n B.\n\n 1.\n\n We begin our analysis of this appeal with Rema’s position that NCG’s joint roles as\n\nthe plan administrator and the named fiduciary definitively answer the fiduciary capacity\n\ninquiry. Our precedents on the topic of fiduciary capacity under ERISA have addressed\n\nprimarily the nature of a functional fiduciary — perhaps because plan administrators and\n\nnamed fiduciaries do not normally disclaim their fiduciary roles and responsibilities in the\n\nfederal courts. See, e.g., Gordon v. CIGNA Corp., 890 F.3d 463, 474-76 (4th Cir. 2018);\n\nCuster, 89 F.3d at 1162-63; Coleman, 969 F.2d at 61-62. But we are now confronted with\n\nprecisely such a situation. That is, despite being identified as both the plan administrator\n\nand the named fiduciary for the Plan, NCG maintains in these proceedings that it is not a\n\nfiduciary for the purposes of Rema’s ERISA claims.\n\n Calling NCG’s assertion into substantial doubt, the Supreme Court has itself\n\nrecognized that, as logic would suggest, a named fiduciary is “an ERISA fiduciary.” See\n\nMertens, 508 U.S. at 251 (internal quotation marks omitted). And we have expressed a\n\nsimilar, common-sensical understanding. See Tatum, 761 F.3d at 371 (“[T]he Committees\n\nare the only named fiduciaries in the governing Plan document. As such, these entities are\n\nproper defendants in a suit alleging breach of fiduciary duty with respect to the Plan.”);\n\nCuster, 89 F.3d at 1161 (“[T]he concept of a fiduciary under ERISA . . . includes . . . those\n\nnamed as fiduciaries in the plan instrument.”). We have likewise recognized that “a plan\n\n 13\n\fadministrator is a fiduciary with respect to her own policy.” See Canada Life Assurance\n\nCo. v. Estate of Lebowitz, 185 F.3d 231, 237 (4th Cir. 1999). In addition, other courts of\n\nappeals have ruled that a plaintiff establishes a defendant’s fiduciary capacity by alleging\n\nthat the defendant is the named fiduciary for an ERISA plan. See, e.g., Jordan v. Fed.\n\nExpress Corp., 116 F.3d 1005, 1014 & n.16 (3d Cir. 1997) (emphasizing that named\n\nfiduciary in plan instrument is fiduciary); Maez v. Mountain States Tel. & Tel., Inc., 54\n\nF.3d 1488, 1498 (10th Cir. 1995) (concluding that complaint sufficiently demonstrated\n\ndefendants’ fiduciary capacities by alleging that defendants were named fiduciaries).\n\n To the extent that our decisions have said that “being a fiduciary under ERISA is\n\nnot an all-or-nothing situation,” our Court has never done so in the context of assessing\n\nwhether a plan administrator and a named fiduciary is, in fact, a fiduciary. See Gordon,\n\n890 F.3d at 474 (assessing status of functional fiduciary). That is, our recognition of such\n\na principle — that ERISA fiduciary status can be a fluid concept — has come in assessing\n\nthe nature of a functional fiduciary, as defined by section 1002(21)(A) of Title 29. See id.;\n\nColeman, 969 F.2d at 61-62. And that principle makes sense in light of ERISA’s definition\n\nof a functional fiduciary. See Coleman, 969 F.2d at 61 (“[T]he inclusion of the phrase ‘to\n\nthe extent’ in § 1002(21)(A) means that a party is a fiduciary only as to the activities which\n\nbring the person within the definition.”).\n\n Our precedents should not, however, be unduly expanded to suggest that an entity\n\nthat serves as both the plan administrator and the named fiduciary for an ERISA-covered\n\nplan is not an ERISA fiduciary. Doing so would ignore ERISA’s undisputable recognition\n\n\n\n 14\n\fof named fiduciaries. 12 And such a ruling would create conflicts with controlling Supreme\n\nCourt precedent, see Mertens, 508 U.S. at 251; our relevant decisions, see Tatum, 761 F.3d\n\nat 371; Custer, 89 F.3d at 1161; and the decisions of our sister circuits, see, e.g., Jordan,\n\n116 F.3d at 1014 & n.16. In addition, the adoption of a rule that requires a plan participant\n\nor beneficiary to allege, in every case, that the plan administrator and named fiduciary is\n\nalso a functional fiduciary would undermine our obligation to liberally construe fiduciary\n\nstatus under ERISA. See Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115,\n\n123 (4th Cir. 1991) (emphasizing that ERISA is a “remedial statute” that “should be\n\nliberally construed in favor of protecting the participants in employee benefits plans”); see\n\nalso Johnson v. Couturier, 572 F.3d 1067, 1076 (9th Cir. 2009) (explaining that courts\n\n“construe ERISA fiduciary status liberally, consistent with ERISA’s policies and\n\nobjectives” (internal quotation marks omitted)). Put succinctly, a participant or beneficiary\n\nis generally not required to allege that the plan administrator and named fiduciary also\n\nsatisfies the functional fiduciary test in order to state a plausible fiduciary breach claim\n\nagainst it under ERISA. 13\n\n\n 12\n ERISA employs the terms “named fiduciary” and “named fiduciaries” in five\nseparate sections. See 29 U.S.C. §§ 1002(18), 1102, 1103(a), 1105(c), 1133(2).\n 13\n We are not suggesting that a plan administrator and named fiduciary (serving in\nthose dual roles) will be subject to suit for breach of fiduciary duty as to all plan-related\nactions. For example, liability might be limited by the exercise of authority or control over\nonly certain plan-related activities. See 29 C.F.R. § 2509.75-8 (FR-13) (explaining that\nnamed fiduciary will “not be liable for acts and omissions of other named fiduciaries in\ncarrying out fiduciary responsibilities which have been allocated to them,” with certain\nexceptions). Similarly, there is no liability for breach of fiduciary duty if the challenged\nconduct of the plan administrator and named fiduciary is not fiduciary in nature, as there\n(Continued)\n 15\n\f In concluding that the Complaint fails to sufficiently allege NCG’s fiduciary status,\n\nthe Opinion failed to consider and assess the relevant decisions on plan administrators and\n\nnamed fiduciaries and their application to these ERISA claims. Indeed, it did not recognize\n\nthe significance of NCG’s status as the joint plan administrator and named fiduciary, and\n\nit erroneously focused on our precedents addressing functional fiduciaries. Although those\n\nerrors alone support a vacatur and a remand, the Opinion also erred in making its functional\n\nfiduciary analysis.\n\n 2.\n\n Aside from NCG’s plausibly alleged fiduciary status resulting from its joint roles as\n\nthe plan administrator and the named fiduciary, we are satisfied that the Complaint\n\nsufficiently alleges that NCG is a fiduciary with respect to the particular conduct giving\n\nrise to Rema’s ERISA claims. That is, the Complaint shows that NCG acted as a functional\n\nfiduciary, within the meaning of section 1002(21)(A) of Title 29, with respect to each of\n\nthe ERISA claims. We will address separately the facts that support those two claims.\n\n a.\n\n In her first ERISA claim, Rema alleges that NCG failed to inform or misinformed\n\nWayne about his continued eligibility under the Plan. She further alleges that NCG\n\n\n\n\ncan be no breach of a nonexistent fiduciary duty. See Pegram, 530 U.S. at 226 (explaining\nthat “the threshold question” in assessing a breach of fiduciary duty claim is whether the\nperson charged with the breach was performing a fiduciary responsibility “when taking the\naction subject to the complaint”); Livick v. Gillette Co., 524 F.3d 24, 29 (1st Cir. 2008)\n(recognizing that “[a] fiduciary named in an ERISA plan can undertake non-fiduciary\nduties”).\n\n 16\n\fneglected to notify Wayne that he had the option to convert or port his life insurance\n\ncoverage. Based on the relevant precedents and the Department of Labor’s 1975 bulletin,\n\nwe are satisfied that this claim adequately pleads NCG’s status as a functional fiduciary.\n\n In Griggs v. E.I. DuPont de Nemours & Co., 237 F.3d 371, 379-84 (4th Cir. 2001),\n\nwe approved a fiduciary breach claim where a plan administrator had failed to correct the\n\nplan participant’s material misunderstanding of the relevant plan, and where that\n\nmisunderstanding had caused an economic loss to the participant. We explained that the\n\nplan administrator was required to speak up “‘when [it] kn[ew] that [its] silence might be\n\nharmful.’” Id. at 380 (quoting Bixler v. Cent. Pa. Teamsters Health & Welfare Fund, 12\n\nF.3d 1292, 1300 (3d Cir. 1993)). To support that proposition, we relied on the decision of\n\nanother court of appeals that recognized a breach of fiduciary duty claim where “‘an\n\nineligible person contributes to a fund’” and the plan fiduciary fails “‘to inform him of his\n\nineligibility within a reasonable time.’” See id. at 381 (quoting Eddy v. Colonial Life Ins.\n\nCo. of Am., 919 F.2d 747, 751 (D.C. Cir. 1990)).\n\n In our 2018 Gordon decision, we were again confronted with a breach of fiduciary\n\nduty claim predicated on the defendant’s silence. There, an employee had paid\n\nsupplemental life insurance premiums to his employer for coverage under a group life\n\ninsurance plan, and the employer submitted the premium payments to the insurer for the\n\nplan. See Gordon, 890 F.3d at 469. When the employee died, his beneficiary filed a claim\n\nfor supplemental life insurance benefits with the insurer. Id. at 468. Despite its acceptance\n\nof the employee’s premiums, the insurer denied the beneficiary’s claim because the\n\nemployee had failed to submit certain paperwork demonstrating his eligibility for\n\n 17\n\fsupplemental coverage. Id. The plaintiff sued the insurer under ERISA, alleging a claim\n\nfor breach of fiduciary duty based on the insurer’s failure “to notify [the employee] that he\n\nneeded to submit additional evidence of insurability — while simultaneously collecting\n\npremiums for unapproved coverage.” Id. at 469.\n\n On appeal from a summary judgment award to the insurer, we observed that the plan\n\ndocuments designated the insurer as the claim administrator and the employer as the plan\n\nadministrator. See Gordon, 890 F.3d at 474. Although the insurer was responsible for\n\nadjudicating benefits claims under the plan, we ruled that it was not a fiduciary with respect\n\nto the failure to notify the employee about the paperwork requirement. Id. Instead, we\n\nruled that the fiduciary for a claim related to that failure was the employer, which the plan\n\ndocuments tasked with “day-to-day program administration,” such as collecting premiums,\n\nverifying eligibility, and submitting applications for supplemental coverage. Id. (internal\n\nquotation marks omitted).\n\n Our Griggs and Gordon precedents undermine the Opinion’s ruling that the first\n\nERISA claim fails to allege NCG’s fiduciary capacity. That is, when a plan administrator\n\nis responsible for verifying employee eligibility for participation in an employee benefit\n\nplan, that administrator acts in a fiduciary capacity with regard to that obligation. See\n\nGordon, 890 F.3d at 474. Additionally, a plan administrator acts in a fiduciary capacity\n\nwhen it conveys (or fails to convey) material information to a plan participant concerning\n\nthe retention of eligibility for a benefit plan when that administrator is aware that the\n\nparticipant wishes to maintain his participation therein. See Griggs, 237 F.3d at 381-82;\n\nEddy, 919 F.2d at 751. Viewed in the light most favorable to Rema, the Complaint\n\n 18\n\fplausibly alleges that, in these circumstances, NCG performed such fiduciary activities as\n\nthe plan administrator.\n\n If there were any doubt about whether the allegations in support of the first ERISA\n\nclaim establish NCG’s status as a functional fiduciary pursuant to section 1002(21)(A), it\n\nis entirely assuaged by NCG’s role as the plan administrator. As the Department of Labor\n\nhas explained, a plan administrator by “the very nature of [its] position, ha[s] discretionary\n\nauthority or discretionary responsibility in the administration of the plan within the\n\nmeaning of section [1002(21)(A)],” and is therefore a functional fiduciary. See 29 C.F.R.\n\n§ 2509.75-8 (D-3); Estate of Lebowitz, 185 F.3d at 237 (“By the very nature of the position,\n\na plan administrator is a fiduciary with respect to her own policy.”); U.S. Steel Mining Co.\n\nv. Dist. 17, United Mine Workers of Am., 897 F.2d 149, 152 (4th Cir. 1990) (“As the plan\n\nadministrator, the fund is clearly a fiduciary.”). 14\n\n b.\n\n Turning to Rema’s second ERISA claim, she alleges therein that NCG breached the\n\nfiduciary duty that it owed to her as a beneficiary when Vice President Baham advised her\n\n\n 14\n In dismissing Rema’s first ERISA claim, the Opinion relied primarily on an\nunpublished decision ruling that an employer was not acting as a fiduciary when it accepted\nan employee’s life insurance premiums “without advising him that he was not eligible for\ngroup life insurance” under the employer’s group life insurance plan. See Opinion 4-5\n(citing Moon v. BWX Tech., Inc., 577 F. App’x 224, 231 (4th Cir. 2014)). Our non-\nprecedential decision in Moon, however, failed to mention Griggs, which was decided\nthirteen years earlier. See Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir.\n2006) (explaining that unpublished decisions “have no precedential value” and “are entitled\nonly to the weight they generate by the persuasiveness of their reasoning” (internal\nquotation marks omitted)). And, unlike this case, the employer in Moon was neither a plan\nadministrator nor a named fiduciary.\n\n 19\n\fnot to appeal Unum’s denial of her benefits claim. Pertinent to this claim, the Supreme\n\nCourt and our Court have both recognized that conveying information about plan benefits\n\nto a beneficiary in order to assist plan-related decisions can constitute fiduciary activity.\n\nSee Varity Corp. v. Howe, 516 U.S. 489, 502 (1996) (explaining that “[c]onveying\n\ninformation about the likely future of plan benefits, thereby permitting beneficiaries to\n\nmake an informed choice about continued participation” is a fiduciary activity); Griggs,\n\n237 F.3d at 379-80 (accepting that plan administrator acted in fiduciary capacity by\n\ncommunicating with participant about pension benefits).\n\n In these circumstances, we are satisfied that the Complaint plausibly alleges that\n\nVice President Baham engaged in a fiduciary activity when he instructed Rema that she\n\nneed not appeal Unum’s decision denying her benefits claim. In so instructing Rema,\n\nBaham was not merely “advising [a] participant[] of [her] rights and options under the\n\n[P]lan.” See 29 C.F.R. § 2509.75-8 (D-2). Instead, in responding to Rema’s request for\n\nassistance, Baham offered tailored advice concerning her decision on whether to pursue an\n\nappeal. See J.A. 71 (stating that Plan beneficiary should contact NCG if she has questions\n\nabout the Plan). Such conduct by an employee imbued with a plan administrator’s\n\nauthority constitutes discretionary activity in the “administration” of the plan, and it is thus\n\na fiduciary activity under ERISA. See 29 U.S.C. § 1002(21)(A)(iii) (providing that a\n\nperson is a functional fiduciary when “he has any discretionary authority or discretionary\n\nresponsibility in the administration of [a] plan”); In re DeRogatis, 904 F.3d 174, 192 (2d\n\n\n\n\n 20\n\fCir. 2018) (explaining that individualized consultation regarding plan benefits constitutes\n\nfiduciary activity). 15\n\n\n\n IV.\n\n Pursuant to the foregoing, we vacate the district court’s dismissal of the ERISA\n\nclaims and remand for such other and further proceedings as may be appropriate.\n\n VACATED AND REMANDED\n\n\n\n\n 15\n The Opinion relied on another unpublished decision in dismissing the second\nERISA claim. See Opinion 4-5 (citing Estate of Weeks v. Advance Stores Co., 99 F. App’x\n470 (4th Cir. 2004)). That decision is both non-precedential and distinguishable. Weeks\nruled that an administrative employee was not an ERISA fiduciary when she “simply\nrepeated information that was given to her by upper-management or that had already been\ninputted into the company’s computer database.” See Estate of Weeks, 99 F. App’x at 476.\nIn contrast, Vice President Baham offered tailored advice, over a sustained period,\nregarding Rema’s right to prosecute an appeal, and the Complaint does not reveal that he\nwas merely relaying or repeating information.\n\n 21\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Rema DAWSON-MURDOCK, Plaintiff - Appellant, v. NATIONAL COUNSELING GROUP, INC.; National Counseling Group, Inc. Plan, Defendants - Appellees.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-07-24\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1989\\n\\n\\nREMA DAWSON-MURDOCK,\\n\\n Plaintiff – Appellant,\\n\\n v.\\n\\nNATIONAL COUNSELING GROUP, INC.; NATIONAL COUNSELING\\nGROUP, INC. PLAN,\\n\\n Defendants – Appellees.\\n\\n\\nAppeal from the United States District Court for the Eastern District of Virginia, at\\nRichmond. John A. Gibney, Jr., District Judge. (3:18-cv-00058-JAG)\\n\\n\\nArgued: May 8, 2019 Decided: July 24, 2019\\n\\n\\nBefore KING, DIAZ, and QUATTLEBAUM, Circuit Judges.\\n\\n\\nVacated and remanded by published opinion. Judge King wrote the opinion, in which\\nJudge Diaz and Judge Quattlebaum joined.\\n\\n\\nARGUED: Elizabeth Hopkins, KANTOR & KANTOR LLP, Northridge, California, for\\nAppellant. Jeremy David Capps, HARMAN CLAYTOR CORRIGAN & WELLMAN,\\nP.C., Glen Allen, Virginia, for Appellees. ON BRIEF: Michelle L. Roberts, KANTOR\\n& KANTOR LLP, Northridge, California, for Appellant. Laura Lee Miller, HARMAN\\nCLAYTOR CORRIGAN & WELLMAN, P.C., Glen Allen, Virginia, for Appellees.\\n\\fKING, Circuit Judge:\\n\\n Plaintiff Rema Dawson-Murdock (“Rema”) appeals from the dismissal of her civil\\n\\naction in the Eastern District of Virginia. Rema sued National Counseling Group, Inc.\\n\\n(“NCG”), alleging two claims under the Employee Retirement Income Security Act of\\n\\n1974 (“ERISA”) (codified primarily in Title 29 of the United States Code). See Dawson-\\n\\nMurdock v. Nat’l Counseling Grp., Inc., No. 3:18-cv-00058 (E.D. Va. Jan. 26, 2018), ECF\\n\\nNo. 1 (the “Complaint”). 1 More specifically, the Complaint alleges that NCG contravened\\n\\nERISA by breaching its fiduciary duties in the administration of a group life insurance plan\\n\\nin which Rema’s late husband had enrolled and for which NCG is the “named fiduciary.”\\n\\nThe district court dismissed Rema’s ERISA claims pursuant to Federal Rule of Civil\\n\\nProcedure 12(b)(6), concluding that NCG’s relevant actions were not taken in a fiduciary\\n\\ncapacity. See Dawson-Murdock v. Nat’l Counseling Grp., Inc., No. 3:18-cv-00058 (E.D.\\n\\nVa. Aug. 7, 2018), ECF No. 12 (the “Opinion”). Because the Complaint sufficiently\\n\\nalleges NCG’s fiduciary status in relation to those claims, we vacate and remand.\\n\\n\\n\\n\\n 1\\n The Complaint also names a second defendant, the National Counseling Group,\\nInc. Plan, but it contains no allegations against that defendant. See 29 U.S.C.\\n§ 1132(d)(1) (authorizing suit against employee benefit plan). The district court described\\nthe National Counseling Group, Inc. Plan as a nominal defendant that does not exist apart\\nfrom NCG. Rema does not contest that description, and she focuses her arguments only\\non her claims against NCG.\\n\\n 2\\n\\f I.\\n\\n A.\\n\\n Because this appeal stems from a Rule 12(b)(6) dismissal, we accept the facts\\n\\nalleged in the Complaint as true and recite them in the light most favorable to Rema. See\\n\\nFeminist Majority Found. v. Hurley, 911 F.3d 674, 680 (4th Cir. 2019). As part of the\\n\\nbenefits package that it offers to employees, NCG provides its workers the opportunity to\\n\\nenroll in a group life insurance plan (the “Plan”). The insurer for the Plan is Unum Life\\n\\nInsurance Company of America (“Unum”). The documents that constitute the Plan are the\\n\\nSummary of Benefits and the Summary Plan Description (the “SPD”). 2\\n\\n The Summary of Benefits explains that an NCG employee who desires to enroll in\\n\\nthe Plan must pay a premium to NCG, which in turn sends the premium payment to Unum.\\n\\nIn addition to transmitting premiums, NCG is obliged to “regular[ly]” provide Unum with\\n\\ninformation about employees “who are eligible to become insured; whose amounts of\\n\\ncoverage change; and[] whose coverage ends.” See J.A. 28. 3\\n\\n\\n\\n\\n 2\\n A summary plan description (or SPD) has been defined as an “outline of an\\nemployee benefit plan, containing such information as the identity of the plan\\nadministrator, the requirements for eligibility and participation in the plan, circumstances\\nthat may result in disqualification or denial of benefits, and the identity of any insurers\\nresponsible for financing or administering the plan.” See Black’s Law Dictionary (10th\\ned. 2014). In this appeal, we consider the SPD and the Summary of Benefits — which are\\nattached to the Complaint — because those documents are integral to the ERISA claims\\nand neither party questions their authenticity. See Rockville Cars, LLC v. City of Rockville,\\n891 F.3d 141, 145 (4th Cir. 2018).\\n 3\\n Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by\\nthe parties in this appeal.\\n\\n 3\\n\\f The SPD specifies that, for the purposes of ERISA, NCG “is the [p]lan\\n\\n[a]dministrator and named fiduciary of the Plan,” and that benefits under the Plan are\\n\\n“administered” by Unum. See J.A. 65 (emphasis added). The SPD also explains that\\n\\n“ERISA imposes duties upon the people who are responsible for the operation of the . . .\\n\\n[P]lan,” and that “[t]he people who operate [the] Plan, called ‘fiduciaries’ of the Plan, have\\n\\na duty to do so prudently and in the interest of . . . Plan participants and beneficiaries.” Id.\\n\\nat 71. And the SPD instructs Plan participants and beneficiaries to contact NCG if they\\n\\nhave questions about the Plan.\\n\\n B.\\n\\n While working full-time for NCG, Rema’s late husband, Wayne Murdock\\n\\n(“Wayne”), elected $150,000 in life insurance coverage through the Plan. Wayne\\n\\nidentified Rema as his primary beneficiary for any benefits resulting from the coverage.\\n\\nTo secure that coverage, Wayne paid premiums to NCG, which forwarded those payments\\n\\nto Unum.\\n\\n On March 21, 2016, Wayne stopped working full-time for NCG and began working\\n\\npart-time for it. Although enrollment in the Plan is limited to full-time NCG employees,\\n\\nNCG either never informed or misinformed Wayne about whether he remained eligible to\\n\\nparticipate in the Plan. Additionally, although Wayne could have converted or ported his\\n\\nlife insurance coverage after transitioning to part-time status, NCG never notified him of\\n\\n\\n\\n\\n 4\\n\\fthose options. 4 The parties have not disputed that Wayne continued to pay premiums to\\n\\nNCG after March 21, 2016, despite his apparent ineligibility.\\n\\n On August 30, 2016, Wayne died. Rema, as Wayne’s widow and beneficiary,\\n\\nthereafter submitted a life insurance benefits claim for $150,000 to Unum pursuant to\\n\\nWayne’s participation in the Plan. On October 24, 2016, before Rema heard anything from\\n\\nUnum regarding her claim, Christopher Baham — NCG’s Vice President of Human\\n\\nResources — emailed Rema to notify her that Unum had denied it. Baham assured Rema,\\n\\nhowever, that NCG would directly pay her the claim amount and work with Unum to\\n\\nrecoup the payment. Baham also advised Rema that she would “not have to deal with\\n\\nUnum insurance company going forward.” See Complaint ¶ 16. Three days later, on\\n\\nOctober 27, 2016, she received a letter from Unum stating that it had denied her benefits\\n\\nclaim because Wayne “was not eligible for coverage due to his part-time status and [he]\\n\\nfailed to convert or port his coverage.” Id. ¶ 17.\\n\\n During the next four months, Rema and Vice President Baham communicated\\n\\nregularly regarding her life insurance benefits claim. Those communications included the\\n\\nfollowing:\\n\\n • On November 7, 2016, Rema emailed a copy of Unum’s denial letter\\n to Baham and asked him for advice regarding her next steps;\\n\\n • The following day, Baham responded via email and told Rema that\\n she did not need to do anything else, such as appeal the claim denial,\\n and that NCG was “working through the details,” see Complaint\\n\\n 4\\n Under the Plan, to convert coverage means to change from a group insurance\\npolicy to an individual insurance policy. On the other hand, to port coverage means to\\nmaintain coverage under the group insurance policy.\\n\\n 5\\n\\f ¶¶ 20, 39;\\n\\n • On November 15, 2016, Baham emailed Rema and said that NCG was\\n still working on her claim;\\n\\n • About two weeks later, Baham again emailed Rema, stating that NCG\\n was “working through a separate insurance company to pay out\\n Wayne’s benefits,” and that Unum would “not be involved at all.” Id.\\n ¶ 22. He again reassured her that “the claim” would be paid, id.;\\n\\n • On December 8, 2016, Baham told Rema that he was “making\\n progress toward resolution of the payment,” id. ¶ 23;\\n\\n • Later that month, Baham wrote to Rema that “NCG was still moving\\n forward,” id. ¶ 24;\\n\\n • On January 19, 2017, Baham emailed Rema to advise her that he had\\n “escalated [her claim] to another level so [he] hope[d] to soon have\\n [a] resolution on [NCG’s] side,” id. ¶ 25;\\n\\n • During the first two weeks of February 2017, Baham told Rema that\\n he was still working on the claim, that it appeared a resolution was\\n “close,” and that there had been “some slow progress” on the claim,\\n id. ¶¶ 27, 28; and\\n\\n • Finally, on February 21, 2017, Baham emailed Rema and asked to\\n speak with her by telephone. During the ensuing phone call, Baham\\n informed her that NCG would not pay her any money on the claim.\\n\\n Based on the representations made to her by Vice President Baham from October\\n\\n2016 through February 2017, Rema did not appeal Unum’s denial of her benefits claim.\\n\\nBy the time Baham informed Rema that NCG would not pay her claim, the ninety-day\\n\\nwindow for her to file an appeal with Unum had closed. 5\\n\\n\\n\\n 5\\n According to the SPD, a participant or beneficiary must appeal a denial of a claim\\nwithin ninety days of receiving Unum’s denial letter. Because Rema received her denial\\nletter on October 27, 2016, she had until January 25, 2017, to lodge an appeal with Unum.\\n\\n 6\\n\\f C.\\n\\n In January 2018, Rema filed her Complaint against NCG in the Eastern District of\\n\\nVirginia. Pertinent to this appeal, the Complaint alleges two causes of action under a\\n\\nprovision of ERISA that authorizes a participant or beneficiary of an employee benefit plan\\n\\nsubject to ERISA to pursue a civil action to obtain “appropriate equitable relief” for\\n\\nviolations of certain ERISA provisions “or the terms of the plan.” See 29 U.S.C.\\n\\n§ 1132(a)(3). 6 In the first ERISA claim, the Complaint alleges that NCG breached the\\n\\nfiduciary duty that it owed to Wayne, as a Plan participant, because it either failed to inform\\n\\nhim or misinformed him about his continued eligibility under the Plan and neglected to\\n\\nnotify him that he had the option to convert or port his life insurance coverage. In the\\n\\nsecond ERISA claim, the Complaint alleges that NCG breached the fiduciary duty that it\\n\\nowed to Rema, as a Plan beneficiary, when Vice President Baham advised her that she need\\n\\nnot appeal Unum’s denial of her benefits claim. 7\\n\\n On March 30, 2018, NCG moved the district court for dismissal of the Complaint\\n\\npursuant to Federal Rule of Civil Procedure 12(b)(6). In support of its dismissal motion,\\n\\nNCG argued that neither it nor Vice President Baham was acting as a fiduciary when they\\n\\ntook the actions underlying Rema’s ERISA claims. That is, NCG maintained that it and\\n\\n\\n 6\\n The parties in these proceedings do not dispute that the Plan is subject to the\\nprovisions of ERISA. See 29 U.S.C. § 1003(a) (defining employee benefit plan governed\\nby ERISA).\\n 7\\n The Complaint also alleged two state law claims, which the district court dismissed\\nas preempted by ERISA. Rema does not contest on appeal the dismissal of those two\\nclaims.\\n\\n 7\\n\\fBaham were acting only in an administrative capacity for the Plan, which did not satisfy\\n\\nERISA’s definition of a “fiduciary,” as codified in 29 U.S.C. § 1002(21)(A). Thus,\\n\\naccording to NCG, they could not have breached any fiduciary duties owed to Wayne or\\n\\nRema.\\n\\n On August 7, 2018, the district court granted NCG’s motion to dismiss and\\n\\ndismissed Rema’s claims. In its accompanying Opinion, the court ruled that the Complaint\\n\\nfailed to sufficiently allege that NCG satisfies ERISA’s definition of a fiduciary. The\\n\\nOpinion explained that, in order to qualify as a fiduciary under ERISA, an employer must\\n\\nhave some “discretionary control over” the employee benefit plan. See Opinion 5. And\\n\\nthe Opinion concluded that the Complaint did not adequately allege that NCG (and its high-\\n\\nranking employee, Vice President Baham) exercised “discretionary control regarding\\n\\nbenefits decisions” under the Plan. Id. at 6. Instead, the Opinion emphasized that Unum\\n\\nmade the benefits decisions for the Plan. The Opinion also described NCG’s and Baham’s\\n\\nalleged actions as merely “administrative” and thus not of a fiduciary nature. Id. at 5.\\n\\nRema noted a timely appeal from the dismissal rulings, and we possess jurisdiction\\n\\npursuant to 28 U.S.C. § 1291. 8\\n\\n\\n\\n\\n 8\\n Although neither the dismissal order nor the Opinion specified whether the\\nComplaint was dismissed with prejudice, nothing in the record rebuts the presumption that\\nit was so rendered. See McLean v. United States, 566 F.3d 391, 396 (4th Cir. 2009)\\n(“Courts have held that, unless otherwise specified, a dismissal for failure to state a claim\\nunder Rule 12(b)(6) is presumed to be both a judgment on the merits and to be rendered\\nwith prejudice.”).\\n\\n 8\\n\\f II.\\n\\n We review de novo a district court’s dismissal of a complaint pursuant to Federal\\n\\nRule of Civil Procedure 12(b)(6). See Feminist Majority Found. v. Hurley, 911 F.3d 674,\\n\\n685 (4th Cir. 2019). In conducting such a review, we accept the complaint’s “factual\\n\\nallegations as true and draw all reasonable inferences in favor of the plaintiff[].” Id. “A\\n\\ndistrict court can properly grant a Rule 12(b)(6) dismissal only if the complaint fails to\\n\\ncontain sufficient factual matter, accepted as true, to state a claim to relief that is plausible\\n\\non its face.” Id. (internal quotation marks omitted).\\n\\n\\n\\n III.\\n\\n On appeal, Rema contests the district court’s dismissal of her two ERISA claims.\\n\\nShe contends that NCG’s alleged conduct necessarily constitutes fiduciary activity because\\n\\nNCG is both the plan administrator and the named fiduciary. Even if those roles are\\n\\ninsufficient to establish that NCG’s conduct in relation to the Plan is fiduciary in nature,\\n\\nRema maintains that NCG and Vice President Baham functioned as fiduciaries in taking\\n\\nthe actions alleged in the Complaint, and that the Opinion erred in ruling otherwise. 9\\n\\nSpecifically, she maintains that NCG acted in a fiduciary capacity by: (1) failing to inform\\n\\n\\n\\n 9\\n Except when describing Baham’s individual actions, our discussion of the ERISA\\nclaims hereinafter refers to NCG and Vice President Baham collectively as “NCG.” The\\nparties do not dispute that we can consider Baham’s conduct against NCG in assessing the\\nERISA claims. See Deschamps v. Bridgestone Ams., Inc. Salaried Emps. Ret. Plan, 840\\nF.3d 267, 278-79 (6th Cir. 2016) (applying agency principles to employee in assessing\\nbreach of fiduciary duty claim against employer).\\n\\n 9\\n\\for misinforming Wayne about his continued eligibility under the Plan and neglecting to\\n\\nnotify Wayne that he had the option to convert or port his life insurance coverage; and\\n\\n(2) advising Rema not to appeal Unum’s denial of her benefits claim. Before assessing the\\n\\nalleged fiduciary misconduct, we will identify and discuss some pertinent legal principles\\n\\nregarding ERISA fiduciaries.\\n\\n A.\\n\\n ERISA specifies several duties, “derived from the common law of trusts,” that are\\n\\nimposed on a fiduciary for an employee benefit plan. See Tibble v. Edison Int’l, 135 S. Ct.\\n\\n1823, 1828 (2015) (internal quotation marks omitted); see also 29 U.S.C. § 1104(a)\\n\\n(defining “standard of care” for ERISA fiduciary); Pegram v. Herdrich, 530 U.S. 211, 224\\n\\n(2000) (“The[] responsibilities imposed by ERISA have the familiar ring of their source in\\n\\nthe common law of trusts.”). To allege a breach of any such fiduciary duty, a plan\\n\\nparticipant or beneficiary must first establish “that the party charged with the breach” is, in\\n\\nfact, a fiduciary. See Coleman v. Nationwide Life Ins. Co., 969 F.2d 54, 60 (4th Cir. 1992).\\n\\n ERISA contemplates two general types of fiduciaries. See, e.g., Mertens v. Hewitt\\n\\nAssocs., 508 U.S. 248, 251 (1993); Custer v. Sweeney, 89 F.3d 1156, 1161 (4th Cir. 1996).\\n\\nThe first type is a “named fiduciary,” which — as the term suggests — is “a fiduciary who\\n\\nis named” in the plan documents. See 29 U.S.C. § 1102(a)(2). 10 The Act requires every\\n\\n\\n 10\\n A “named fiduciary” also includes “a fiduciary . . . who, pursuant to a procedure\\nspecified in the plan, is identified as a fiduciary (A) by a person who is an employer or\\nemployee organization with respect to the plan or (B) by such an employer and such an\\nemployee organization acting jointly.” See 29 U.S.C. § 1102(a)(2). ERISA permits a\\nnamed fiduciary “to designate persons other than named fiduciaries to carry out fiduciary\\n(Continued)\\n 10\\n\\fcovered employee benefit plan to “provide for one or more named fiduciaries who jointly\\n\\nor severally shall have authority to control and manage the operation and administration of\\n\\nthe plan.” Id. § 1102(a)(1). That obligation “ensures that responsibility for managing and\\n\\noperating the plan — and liability for mismanagement — are focused with a degree of\\n\\ncertainty.” See Tatum v. RJR Pension Inv. Comm., 761 F.3d 346, 371 (4th Cir. 2014)\\n\\n(alterations and internal quotation marks omitted).\\n\\n The second type of fiduciary contemplated by ERISA has been called a “functional\\n\\nfiduciary.” See Tatum, 761 F.3d at 357 n.6. Section 1002(21)(A) of Title 29 defines such\\n\\na fiduciary and provides that\\n\\n a person is a fiduciary with respect to a plan to the extent (i) he exercises any\\n discretionary authority or discretionary control respecting management of\\n such plan or exercises any authority or control respecting management or\\n disposition of its assets, (ii) he renders investment advice for a fee or other\\n compensation, direct or indirect, with respect to any moneys or other\\n property of such plan, or has any authority or responsibility to do so, or (iii)\\n he has any discretionary authority or discretionary responsibility in the\\n administration of such plan.\\n\\nSee 29 U.S.C. § 1002(21)(A). In summarizing the two general types of ERISA fiduciaries,\\n\\nwe have explained that “the concept of a fiduciary under ERISA . . . includes not only those\\n\\nnamed as fiduciaries in the plan instrument, . . . but [also] any individual who de facto\\n\\nperforms specified discretionary functions with respect to the management, assets, or\\n\\n\\n\\n\\nresponsibilities . . . under the plan.” See id. § 1105(c)(1)(B). Here, the Plan does not\\ndesignate any person or entity other than NCG to carry out fiduciary responsibilities with\\nrespect to plan administration. That is, NCG is the only named fiduciary for plan\\nadministration.\\n\\n 11\\n\\fadministration of a plan.” See Custer, 89 F.3d at 1161 (alterations and internal quotation\\n\\nmarks omitted).\\n\\n In assessing whether a person or entity qualifies as a fiduciary under ERISA, we\\n\\nhave consistently utilized an interpretive bulletin published by the Department of Labor in\\n\\n1975. See 29 C.F.R. § 2509.75-8; Custer, 89 F.3d at 1162; Coleman, 969 F.2d at 61-62.11\\n\\nThe bulletin emphasizes that “[s]ome offices or positions of an employee benefit plan by\\n\\ntheir very nature require persons who hold them to perform one or more [of the] functions”\\n\\ndescribed in ERISA’s definition of a “fiduciary,” provided in section 1002(21)(A). See 29\\n\\nC.F.R. § 2509.75-8 (D-3). For example, “a plan administrator . . . must, [by] the very\\n\\nnature of his position, have discretionary authority or discretionary responsibility in the\\n\\nadministration of the plan.” Id. (internal quotation marks omitted). Consequently,\\n\\n“[p]ersons who hold such positions will . . . be fiduciaries.” Id. On the other hand, the\\n\\n1975 Department of Labor bulletin suggests that “a person who performs purely ministerial\\n\\nfunctions . . . within a framework of policies, interpretations, rules, practices and\\n\\nprocedures made by other persons,” such as applying “rules determining eligibility for\\n\\nparticipation or benefits,” “advising participants of their rights and options under the plan,”\\n\\nand collecting “contributions . . . as provided in the plan,” is not acting in a fiduciary\\n\\ncapacity. See id. at (D-2). In sum, the 1975 bulletin explains that a plan administrator is a\\n\\nfunctional fiduciary with respect to plan administration, but a person or entity that is not a\\n\\n\\n 11\\n ERISA authorizes the Secretary of Labor to “prescribe such regulations as he\\nfinds necessary or appropriate to carry out the provisions of [the Act].” See 29 U.S.C.\\n§ 1135.\\n\\n 12\\n\\fplan administrator and performs only ministerial functions in relation to a plan is not a\\n\\nfunctional fiduciary.\\n\\n B.\\n\\n 1.\\n\\n We begin our analysis of this appeal with Rema’s position that NCG’s joint roles as\\n\\nthe plan administrator and the named fiduciary definitively answer the fiduciary capacity\\n\\ninquiry. Our precedents on the topic of fiduciary capacity under ERISA have addressed\\n\\nprimarily the nature of a functional fiduciary — perhaps because plan administrators and\\n\\nnamed fiduciaries do not normally disclaim their fiduciary roles and responsibilities in the\\n\\nfederal courts. See, e.g., Gordon v. CIGNA Corp., 890 F.3d 463, 474-76 (4th Cir. 2018);\\n\\nCuster, 89 F.3d at 1162-63; Coleman, 969 F.2d at 61-62. But we are now confronted with\\n\\nprecisely such a situation. That is, despite being identified as both the plan administrator\\n\\nand the named fiduciary for the Plan, NCG maintains in these proceedings that it is not a\\n\\nfiduciary for the purposes of Rema’s ERISA claims.\\n\\n Calling NCG’s assertion into substantial doubt, the Supreme Court has itself\\n\\nrecognized that, as logic would suggest, a named fiduciary is “an ERISA fiduciary.” See\\n\\nMertens, 508 U.S. at 251 (internal quotation marks omitted). And we have expressed a\\n\\nsimilar, common-sensical understanding. See Tatum, 761 F.3d at 371 (“[T]he Committees\\n\\nare the only named fiduciaries in the governing Plan document. As such, these entities are\\n\\nproper defendants in a suit alleging breach of fiduciary duty with respect to the Plan.”);\\n\\nCuster, 89 F.3d at 1161 (“[T]he concept of a fiduciary under ERISA . . . includes . . . those\\n\\nnamed as fiduciaries in the plan instrument.”). We have likewise recognized that “a plan\\n\\n 13\\n\\fadministrator is a fiduciary with respect to her own policy.” See Canada Life Assurance\\n\\nCo. v. Estate of Lebowitz, 185 F.3d 231, 237 (4th Cir. 1999). In addition, other courts of\\n\\nappeals have ruled that a plaintiff establishes a defendant’s fiduciary capacity by alleging\\n\\nthat the defendant is the named fiduciary for an ERISA plan. See, e.g., Jordan v. Fed.\\n\\nExpress Corp., 116 F.3d 1005, 1014 & n.16 (3d Cir. 1997) (emphasizing that named\\n\\nfiduciary in plan instrument is fiduciary); Maez v. Mountain States Tel. & Tel., Inc., 54\\n\\nF.3d 1488, 1498 (10th Cir. 1995) (concluding that complaint sufficiently demonstrated\\n\\ndefendants’ fiduciary capacities by alleging that defendants were named fiduciaries).\\n\\n To the extent that our decisions have said that “being a fiduciary under ERISA is\\n\\nnot an all-or-nothing situation,” our Court has never done so in the context of assessing\\n\\nwhether a plan administrator and a named fiduciary is, in fact, a fiduciary. See Gordon,\\n\\n890 F.3d at 474 (assessing status of functional fiduciary). That is, our recognition of such\\n\\na principle — that ERISA fiduciary status can be a fluid concept — has come in assessing\\n\\nthe nature of a functional fiduciary, as defined by section 1002(21)(A) of Title 29. See id.;\\n\\nColeman, 969 F.2d at 61-62. And that principle makes sense in light of ERISA’s definition\\n\\nof a functional fiduciary. See Coleman, 969 F.2d at 61 (“[T]he inclusion of the phrase ‘to\\n\\nthe extent’ in § 1002(21)(A) means that a party is a fiduciary only as to the activities which\\n\\nbring the person within the definition.”).\\n\\n Our precedents should not, however, be unduly expanded to suggest that an entity\\n\\nthat serves as both the plan administrator and the named fiduciary for an ERISA-covered\\n\\nplan is not an ERISA fiduciary. Doing so would ignore ERISA’s undisputable recognition\\n\\n\\n\\n 14\\n\\fof named fiduciaries. 12 And such a ruling would create conflicts with controlling Supreme\\n\\nCourt precedent, see Mertens, 508 U.S. at 251; our relevant decisions, see Tatum, 761 F.3d\\n\\nat 371; Custer, 89 F.3d at 1161; and the decisions of our sister circuits, see, e.g., Jordan,\\n\\n116 F.3d at 1014 & n.16. In addition, the adoption of a rule that requires a plan participant\\n\\nor beneficiary to allege, in every case, that the plan administrator and named fiduciary is\\n\\nalso a functional fiduciary would undermine our obligation to liberally construe fiduciary\\n\\nstatus under ERISA. See Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115,\\n\\n123 (4th Cir. 1991) (emphasizing that ERISA is a “remedial statute” that “should be\\n\\nliberally construed in favor of protecting the participants in employee benefits plans”); see\\n\\nalso Johnson v. Couturier, 572 F.3d 1067, 1076 (9th Cir. 2009) (explaining that courts\\n\\n“construe ERISA fiduciary status liberally, consistent with ERISA’s policies and\\n\\nobjectives” (internal quotation marks omitted)). Put succinctly, a participant or beneficiary\\n\\nis generally not required to allege that the plan administrator and named fiduciary also\\n\\nsatisfies the functional fiduciary test in order to state a plausible fiduciary breach claim\\n\\nagainst it under ERISA. 13\\n\\n\\n 12\\n ERISA employs the terms “named fiduciary” and “named fiduciaries” in five\\nseparate sections. See 29 U.S.C. §§ 1002(18), 1102, 1103(a), 1105(c), 1133(2).\\n 13\\n We are not suggesting that a plan administrator and named fiduciary (serving in\\nthose dual roles) will be subject to suit for breach of fiduciary duty as to all plan-related\\nactions. For example, liability might be limited by the exercise of authority or control over\\nonly certain plan-related activities. See 29 C.F.R. § 2509.75-8 (FR-13) (explaining that\\nnamed fiduciary will “not be liable for acts and omissions of other named fiduciaries in\\ncarrying out fiduciary responsibilities which have been allocated to them,” with certain\\nexceptions). Similarly, there is no liability for breach of fiduciary duty if the challenged\\nconduct of the plan administrator and named fiduciary is not fiduciary in nature, as there\\n(Continued)\\n 15\\n\\f In concluding that the Complaint fails to sufficiently allege NCG’s fiduciary status,\\n\\nthe Opinion failed to consider and assess the relevant decisions on plan administrators and\\n\\nnamed fiduciaries and their application to these ERISA claims. Indeed, it did not recognize\\n\\nthe significance of NCG’s status as the joint plan administrator and named fiduciary, and\\n\\nit erroneously focused on our precedents addressing functional fiduciaries. Although those\\n\\nerrors alone support a vacatur and a remand, the Opinion also erred in making its functional\\n\\nfiduciary analysis.\\n\\n 2.\\n\\n Aside from NCG’s plausibly alleged fiduciary status resulting from its joint roles as\\n\\nthe plan administrator and the named fiduciary, we are satisfied that the Complaint\\n\\nsufficiently alleges that NCG is a fiduciary with respect to the particular conduct giving\\n\\nrise to Rema’s ERISA claims. That is, the Complaint shows that NCG acted as a functional\\n\\nfiduciary, within the meaning of section 1002(21)(A) of Title 29, with respect to each of\\n\\nthe ERISA claims. We will address separately the facts that support those two claims.\\n\\n a.\\n\\n In her first ERISA claim, Rema alleges that NCG failed to inform or misinformed\\n\\nWayne about his continued eligibility under the Plan. She further alleges that NCG\\n\\n\\n\\n\\ncan be no breach of a nonexistent fiduciary duty. See Pegram, 530 U.S. at 226 (explaining\\nthat “the threshold question” in assessing a breach of fiduciary duty claim is whether the\\nperson charged with the breach was performing a fiduciary responsibility “when taking the\\naction subject to the complaint”); Livick v. Gillette Co., 524 F.3d 24, 29 (1st Cir. 2008)\\n(recognizing that “[a] fiduciary named in an ERISA plan can undertake non-fiduciary\\nduties”).\\n\\n 16\\n\\fneglected to notify Wayne that he had the option to convert or port his life insurance\\n\\ncoverage. Based on the relevant precedents and the Department of Labor’s 1975 bulletin,\\n\\nwe are satisfied that this claim adequately pleads NCG’s status as a functional fiduciary.\\n\\n In Griggs v. E.I. DuPont de Nemours & Co., 237 F.3d 371, 379-84 (4th Cir. 2001),\\n\\nwe approved a fiduciary breach claim where a plan administrator had failed to correct the\\n\\nplan participant’s material misunderstanding of the relevant plan, and where that\\n\\nmisunderstanding had caused an economic loss to the participant. We explained that the\\n\\nplan administrator was required to speak up “‘when [it] kn[ew] that [its] silence might be\\n\\nharmful.’” Id. at 380 (quoting Bixler v. Cent. Pa. Teamsters Health & Welfare Fund, 12\\n\\nF.3d 1292, 1300 (3d Cir. 1993)). To support that proposition, we relied on the decision of\\n\\nanother court of appeals that recognized a breach of fiduciary duty claim where “‘an\\n\\nineligible person contributes to a fund’” and the plan fiduciary fails “‘to inform him of his\\n\\nineligibility within a reasonable time.’” See id. at 381 (quoting Eddy v. Colonial Life Ins.\\n\\nCo. of Am., 919 F.2d 747, 751 (D.C. Cir. 1990)).\\n\\n In our 2018 Gordon decision, we were again confronted with a breach of fiduciary\\n\\nduty claim predicated on the defendant’s silence. There, an employee had paid\\n\\nsupplemental life insurance premiums to his employer for coverage under a group life\\n\\ninsurance plan, and the employer submitted the premium payments to the insurer for the\\n\\nplan. See Gordon, 890 F.3d at 469. When the employee died, his beneficiary filed a claim\\n\\nfor supplemental life insurance benefits with the insurer. Id. at 468. Despite its acceptance\\n\\nof the employee’s premiums, the insurer denied the beneficiary’s claim because the\\n\\nemployee had failed to submit certain paperwork demonstrating his eligibility for\\n\\n 17\\n\\fsupplemental coverage. Id. The plaintiff sued the insurer under ERISA, alleging a claim\\n\\nfor breach of fiduciary duty based on the insurer’s failure “to notify [the employee] that he\\n\\nneeded to submit additional evidence of insurability — while simultaneously collecting\\n\\npremiums for unapproved coverage.” Id. at 469.\\n\\n On appeal from a summary judgment award to the insurer, we observed that the plan\\n\\ndocuments designated the insurer as the claim administrator and the employer as the plan\\n\\nadministrator. See Gordon, 890 F.3d at 474. Although the insurer was responsible for\\n\\nadjudicating benefits claims under the plan, we ruled that it was not a fiduciary with respect\\n\\nto the failure to notify the employee about the paperwork requirement. Id. Instead, we\\n\\nruled that the fiduciary for a claim related to that failure was the employer, which the plan\\n\\ndocuments tasked with “day-to-day program administration,” such as collecting premiums,\\n\\nverifying eligibility, and submitting applications for supplemental coverage. Id. (internal\\n\\nquotation marks omitted).\\n\\n Our Griggs and Gordon precedents undermine the Opinion’s ruling that the first\\n\\nERISA claim fails to allege NCG’s fiduciary capacity. That is, when a plan administrator\\n\\nis responsible for verifying employee eligibility for participation in an employee benefit\\n\\nplan, that administrator acts in a fiduciary capacity with regard to that obligation. See\\n\\nGordon, 890 F.3d at 474. Additionally, a plan administrator acts in a fiduciary capacity\\n\\nwhen it conveys (or fails to convey) material information to a plan participant concerning\\n\\nthe retention of eligibility for a benefit plan when that administrator is aware that the\\n\\nparticipant wishes to maintain his participation therein. See Griggs, 237 F.3d at 381-82;\\n\\nEddy, 919 F.2d at 751. Viewed in the light most favorable to Rema, the Complaint\\n\\n 18\\n\\fplausibly alleges that, in these circumstances, NCG performed such fiduciary activities as\\n\\nthe plan administrator.\\n\\n If there were any doubt about whether the allegations in support of the first ERISA\\n\\nclaim establish NCG’s status as a functional fiduciary pursuant to section 1002(21)(A), it\\n\\nis entirely assuaged by NCG’s role as the plan administrator. As the Department of Labor\\n\\nhas explained, a plan administrator by “the very nature of [its] position, ha[s] discretionary\\n\\nauthority or discretionary responsibility in the administration of the plan within the\\n\\nmeaning of section [1002(21)(A)],” and is therefore a functional fiduciary. See 29 C.F.R.\\n\\n§ 2509.75-8 (D-3); Estate of Lebowitz, 185 F.3d at 237 (“By the very nature of the position,\\n\\na plan administrator is a fiduciary with respect to her own policy.”); U.S. Steel Mining Co.\\n\\nv. Dist. 17, United Mine Workers of Am., 897 F.2d 149, 152 (4th Cir. 1990) (“As the plan\\n\\nadministrator, the fund is clearly a fiduciary.”). 14\\n\\n b.\\n\\n Turning to Rema’s second ERISA claim, she alleges therein that NCG breached the\\n\\nfiduciary duty that it owed to her as a beneficiary when Vice President Baham advised her\\n\\n\\n 14\\n In dismissing Rema’s first ERISA claim, the Opinion relied primarily on an\\nunpublished decision ruling that an employer was not acting as a fiduciary when it accepted\\nan employee’s life insurance premiums “without advising him that he was not eligible for\\ngroup life insurance” under the employer’s group life insurance plan. See Opinion 4-5\\n(citing Moon v. BWX Tech., Inc., 577 F. App’x 224, 231 (4th Cir. 2014)). Our non-\\nprecedential decision in Moon, however, failed to mention Griggs, which was decided\\nthirteen years earlier. See Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir.\\n2006) (explaining that unpublished decisions “have no precedential value” and “are entitled\\nonly to the weight they generate by the persuasiveness of their reasoning” (internal\\nquotation marks omitted)). And, unlike this case, the employer in Moon was neither a plan\\nadministrator nor a named fiduciary.\\n\\n 19\\n\\fnot to appeal Unum’s denial of her benefits claim. Pertinent to this claim, the Supreme\\n\\nCourt and our Court have both recognized that conveying information about plan benefits\\n\\nto a beneficiary in order to assist plan-related decisions can constitute fiduciary activity.\\n\\nSee Varity Corp. v. Howe, 516 U.S. 489, 502 (1996) (explaining that “[c]onveying\\n\\ninformation about the likely future of plan benefits, thereby permitting beneficiaries to\\n\\nmake an informed choice about continued participation” is a fiduciary activity); Griggs,\\n\\n237 F.3d at 379-80 (accepting that plan administrator acted in fiduciary capacity by\\n\\ncommunicating with participant about pension benefits).\\n\\n In these circumstances, we are satisfied that the Complaint plausibly alleges that\\n\\nVice President Baham engaged in a fiduciary activity when he instructed Rema that she\\n\\nneed not appeal Unum’s decision denying her benefits claim. In so instructing Rema,\\n\\nBaham was not merely “advising [a] participant[] of [her] rights and options under the\\n\\n[P]lan.” See 29 C.F.R. § 2509.75-8 (D-2). Instead, in responding to Rema’s request for\\n\\nassistance, Baham offered tailored advice concerning her decision on whether to pursue an\\n\\nappeal. See J.A. 71 (stating that Plan beneficiary should contact NCG if she has questions\\n\\nabout the Plan). Such conduct by an employee imbued with a plan administrator’s\\n\\nauthority constitutes discretionary activity in the “administration” of the plan, and it is thus\\n\\na fiduciary activity under ERISA. See 29 U.S.C. § 1002(21)(A)(iii) (providing that a\\n\\nperson is a functional fiduciary when “he has any discretionary authority or discretionary\\n\\nresponsibility in the administration of [a] plan”); In re DeRogatis, 904 F.3d 174, 192 (2d\\n\\n\\n\\n\\n 20\\n\\fCir. 2018) (explaining that individualized consultation regarding plan benefits constitutes\\n\\nfiduciary activity). 15\\n\\n\\n\\n IV.\\n\\n Pursuant to the foregoing, we vacate the district court’s dismissal of the ERISA\\n\\nclaims and remand for such other and further proceedings as may be appropriate.\\n\\n VACATED AND REMANDED\\n\\n\\n\\n\\n 15\\n The Opinion relied on another unpublished decision in dismissing the second\\nERISA claim. See Opinion 4-5 (citing Estate of Weeks v. Advance Stores Co., 99 F. App’x\\n470 (4th Cir. 2004)). That decision is both non-precedential and distinguishable. Weeks\\nruled that an administrative employee was not an ERISA fiduciary when she “simply\\nrepeated information that was given to her by upper-management or that had already been\\ninputted into the company’s computer database.” See Estate of Weeks, 99 F. App’x at 476.\\nIn contrast, Vice President Baham offered tailored advice, over a sustained period,\\nregarding Rema’s right to prosecute an appeal, and the Complaint does not reveal that he\\nwas merely relaying or repeating information.\\n\\n 21\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2956,"cells":{"id":{"kind":"number","value":4642456,"string":"4,642,456"},"name":{"kind":"string","value":"Marcus HAHN, Petitioner - Appellant, v. Warden Bonita MOSELEY, Federal Correctional Institution, Edgefield, South Carolina, Respondent - Appellee."},"name_abbreviation":{"kind":"string","value":"Marcus Hahn v. Bonita Moseley"},"decision_date":{"kind":"string","value":"2019-07-24"},"docket_number":{"kind":"string","value":"18-6283"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Gregory, Wynn, Thacker\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888988/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"030concurrence\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888989/\", \"author_raw\": \"\"}, {\"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-6283\\n\\n\\nMARCUS HAHN,\\n\\n Petitioner – Appellant,\\n\\n v.\\n\\nWARDEN BONITA MOSELEY, Federal Correctional Institution, Edgefield,\\nSouth Carolina,\\n\\n Respondent – Appellee.\\n\\n\\nAppeal from the United States District Court for the District of South Carolina, at\\nBeaufort. Joseph F. Anderson, Jr., Senior District Judge. (9:16–cv–03235–JFA)\\n\\n\\nArgued: May 9, 2019 Decided: July 24, 2019\\n\\n\\nBefore GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.\\n\\n\\nReversed and remanded with instructions by published opinion. Chief Judge Gregory\\nwrote the opinion, in which Judge Wynn and Judge Thacker joined. Judge Wynn wrote a\\nconcurring opinion.\\n\\n\\nARGUED: Susan Michelle Pelletier, MUNGER, TOLLES & OLSON LLP,\\nWashington, D.C., for Appellant. John Michael Pellettieri, OFFICE OF THE UNITED\\nSTATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: Chad Golder,\\nMUNGER, TOLLES & OLSON LLP, Washington, D.C., for Appellant.\\nBrian A. Benczkowski, Assistant Attorney General, Matthew S. Miner, Deputy Assistant\\nAttorney, General, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE,\\n\\fWashington, D.C.; Sherri A. Lydon, United States Attorney, OFFICE OF THE UNITED\\nSTATES ATTORNEY, Columbia, South Carolina, for Appellee.\\n\\n\\n\\n\\n 2\\n\\fGREGORY, Chief Judge:\\n\\n Petitioner-Appellant Marcus Hahn appeals the final order of the district court\\n\\ndenying his petition for a writ of habeas corpus under 28 U.S.C. § 2241. Because Hahn’s\\n\\ncurrent sentence stems from faulty arithmetic based on a now-obsolete scheme of\\n\\nstatutory interpretation, we conclude that Hahn’s petition meets the requirements of 28\\n\\nU.S.C. § 2255(e), the savings clause. We therefore reverse the district court’s order and\\n\\nremand with instructions to grant Hahn’s writ of habeas corpus. 1\\n\\n\\n\\n\\n I.\\n\\n On December 31, 1999, law enforcement from various state and federal agencies\\n\\nexecuted a search warrant for Hahn’s home near Albuquerque, New Mexico. Hahn was\\n\\narrested after law enforcement discovered and seized marijuana plants and firearms\\n\\nduring that search. On December 7, 2000, at the conclusion of a jury trial in the United\\n\\nStates District Court for the District of New Mexico, a jury convicted Hahn of the\\n\\nfollowing four counts: (1) intentionally manufacturing 100 or more marijuana plants; 2\\n\\n(2) opening and maintaining a place for the purpose of manufacturing, distributing, and\\n\\n\\n\\n 1\\n The Government requested that this Court stay the current proceedings in\\nanticipation of the Supreme Court’s decision whether to grant certiorari in United States\\nv. Wheeler, 734 F. App’x 892 (4th Cir. 2018). The Government’s request is moot\\nbecause the Supreme Court denied certiorari in Wheeler on March 18, 2019. See United\\nStates v. Wheeler, 139 S. Ct. 1318 (2019).\\n 2\\n See 21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2.\\n\\n\\n 3\\n\\fusing marijuana; 3 (3) possessing firearms in furtherance of the intentional manufacturing\\n\\nof 100 or more marijuana plants; 4 and (4) possessing a firearm in furtherance of the\\n\\nopening and maintaining a place for the purpose of manufacturing, distributing, and using\\n\\nmarijuana. 5 Counts III and IV are based on the same gun collection, which includes 21\\n\\nfirearms.\\n\\n In 2001, the district court sentenced Hahn to 480 months’ imprisonment for these\\n\\ngun and drug offenses. He received 60 months’ imprisonment for Count I, a concurrent\\n\\n27 months for Count II, a consecutive 120 months for Count III, and a consecutive 300\\n\\nmonths for Count IV. 6\\n\\n In 2002, on direct appeal to the Tenth Circuit, Hahn challenged the legality of his\\n\\nsentence for his second firearm conviction. He contended that the district court\\n\\nimpermissibly treated his second firearm conviction as “second or subsequent” to his first\\n\\nfirearm conviction for purposes of the statute’s sentencing enhancement. Hahn I, 38 F.\\n\\nApp’x at 554. Hahn argued that the court’s approach was in error because the underlying\\n\\ndrug crimes were part of a “continuing incident” and were “coterminous in space and\\n\\ntime.” Id. The Tenth Circuit rejected this argument, relying principally on United States\\n\\n\\n 3\\n See 21 U.S.C. § 856 (a)(1), (b).\\n 4\\n See 18 U.S.C. § 924(c)(1)(A).\\n 5\\n Id.\\n 6\\n The sentencing court characterized the Count IV firearm conviction as a “second\\nor subsequent” conviction under § 924(c), for which the statute mandated a consecutive\\nsentence of twenty-five years. United States v. Hahn, 38 F. App’x 553, 554 (10th Cir.\\n2002) (“Hahn I”).\\n\\n\\n 4\\n\\fv. Sturmoski, 971 F.2d 452, 461 (10th Cir. 1992) (“[C]onsecutive sentences may be\\n\\nimposed for multiple 924(c) counts if the offenses underlying each 924(c) count do not\\n\\nconstitute a single offense for double jeopardy purposes.”). Similar to Hahn, the\\n\\ndefendant in Sturmoski appealed convictions for: (1) attempting to manufacture a\\n\\ncontrolled substance; (2) maintaining a place for manufacturing a controlled substance;\\n\\nand (3) two 18 U.S.C. § 924(c) convictions for facilitating the aforementioned drug\\n\\ncounts. Hahn I, 38 F. App’x at 555. The Sturmoski court held that “Congress intended\\n\\nmultiple convictions under 924(c), even though the counts involved ‘the same criminal\\n\\nepisode,’ because Congress intended the underlying offenses to be separate.” Id. After\\n\\nreviewing Sturmoski, the Tenth Circuit in Hahn’s case found that “[t]he only difference\\n\\nbetween the situations in Sturmoski and in this case is that one of Hahn’s 924(c)\\n\\nconvictions was for possession in furtherance of manufacture, rather than possession in\\n\\nfurtherance of attempt to manufacture.” Id. Given the factual and legal similarities\\n\\nbetween Sturmoski and Hahn’s case, the court found that “Sturmoski clearly controls the\\n\\noutcome of this case. Hahn’s conviction for maintaining a place for manufacture is\\n\\ndistinct from his manufacture conviction, and his two 924(c) convictions are also\\n\\ndistinct.” Id. The court further ruled that “even if possession of a firearm occurs in\\n\\nconnection with a single criminal episode, a second 924(c) conviction arising out of that\\n\\nepisode can constitute a ‘second or subsequent conviction’ for sentencing purposes.” Id.\\n\\nThe Tenth Circuit therefore affirmed Hahn’s convictions and sentence. Id.\\n\\n In 2004, Hahn filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or\\n\\ncorrect his sentence in the United States District Court of New Mexico. He argued that\\n\\n\\n 5\\n\\f“double jeopardy bars multiple § 924(c)(1) firearm convictions based on multiple\\n\\npredicate offenses which are factually inseparable in terms of time, space and underlying\\n\\nconduct.” United States v. Hahn, 191 F. App’x 758, 760 (10th Cir. 2006) (citation and\\n\\ninternal quotation marks omitted) (“Hahn II”). Hahn also argued that “§ 924(c)(1)\\n\\ncontains a number of ambiguities, requiring application of the rule of lenity.” Id. Hahn\\n\\nexplained that he did not previously raise these arguments because he received ineffective\\n\\nassistance of counsel. The district court dismissed the motion in 2004, concluding that\\n\\nHahn’s arguments were procedurally barred and without merit. Id.\\n\\n Hahn filed a motion for reconsideration under Federal Rule of Civil Procedure\\n\\n59(e). He disputed that his double jeopardy claim had been resolved on direct appeal and\\n\\nmoved to amend his § 2255 motion to add more evidence. Id. The district court treated\\n\\nthese motions as successive § 2255 motions and transferred them to the Tenth Circuit.\\n\\nHahn appealed this determination, and the Tenth Circuit issued a certificate of\\n\\nappealability to consider Hahn’s § 924(c)(1) arguments. The Tenth Circuit subsequently\\n\\naffirmed the dismissal and held that: (1) Hahn forfeited his double jeopardy claim and it\\n\\nwas procedurally barred because he did not raise it on direct appeal; (2) even if his double\\n\\njeopardy claim was not procedurally barred, counsel’s failure to raise it would not have\\n\\nconstituted ineffective assistance of counsel because Sturmoski controls and renders\\n\\nHahn’s double jeopardy claim meritless; and (3) as to the ambiguity argument, a motion\\n\\nto vacate could not be used, absent an intervening change in circuit law, to raise an\\n\\nargument that was resolved on direct appeal. Hahn II, 191 F. App’x at 760-61.\\n\\n\\n\\n\\n 6\\n\\f In 2015, Hahn filed a motion under Rule 60(b)(4), alleging that he was entitled to\\n\\nrelief because of an en banc Tenth Circuit decision issued after the dismissal of his\\n\\npetition. United States v. Rentz, 777 F.3d 1105 (10th Cir. 2015). Hahn argued that Rentz\\n\\naltered the substantive law in the Tenth Circuit by establishing a new statutory\\n\\nframework interpreting § 924(c). Specifically, Hahn contended that Rentz added a unit-\\n\\nof-prosecution requirement for a § 924(c) conviction and therefore entitled him to relief\\n\\ndenied under Sturmoski. Unit-of-prosecution questions ask whether the conduct at issue\\n\\n“constitutes one, or several, violations of a single statutory provision.” Callanan v.\\n\\nUnited States, 364 U.S. 587, 597 (1961). In Rentz, the Tenth Circuit addressed the issue\\n\\nof whether, as a matter of statutory construction, § 924(c) “authorizes multiple charges\\n\\nwhen everyone admits there’s only a single use, carry, or possession.” 777 F.3d at 1108.\\n\\nAfter recognizing that this question was separate from the double jeopardy inquiry, the\\n\\ncourt ruled that each § 924(c) charge “requires an independent use, carry, or possession.”\\n\\nId. at 1115. Before Rentz, when Sturmoski was controlling law, multiple charges under\\n\\n§ 924(c) were permissible as long as they did not run afoul of the Double Jeopardy\\n\\nClause. After Rentz, the Tenth Circuit, based on the language of the statute itself, held\\n\\nthat multiple charges under § 924(c) based on the same conduct were not proper even if\\n\\nthey complied with the Double Jeopardy Clause. Thus, Rentz found that it was improper\\n\\nto allow multiple charges to arise from a single possession under the language of the\\n\\nstatute. Id.\\n\\n The district court determined that Hahn’s motion should be treated as a second or\\n\\nsubsequent § 2255 motion—i.e., a motion that could not be filed without precertification\\n\\n\\n 7\\n\\fby the Court of Appeals—and transferred it to the Tenth Circuit. Hahn then filed a\\n\\nmotion to remand before the Tenth Circuit to allow the district court to consider the\\n\\nmerits of his Rule 60(b) motion or, in the alternative, for authorization to file a second or\\n\\nsuccessive § 2255 motion. The Tenth Circuit denied both the motion to remand and\\n\\nHahn’s request to file a second or successive § 2255 motion based on a procedural\\n\\nimpediment. Rentz was a Tenth Circuit decision, and thus did not meet the requirements\\n\\nfor a second or subsequent motion.\\n\\n At some point after 2015, correctional officials transferred Hahn to a facility in\\n\\nSouth Carolina, where he is currently detained. Hahn filed the instant petition under 28\\n\\nU.S.C. § 2241 in the United States District Court for the District of South Carolina.\\n\\nPursuant to § 2241, federal courts have jurisdiction over habeas corpus petitions from\\n\\nfederal inmates “in custody in violation of the Constitution or laws or treaties of the\\n\\nUnited States.” 28 U.S.C. § 2241(c)(3). Habeas petitions filed under this section must be\\n\\nfiled in the jurisdiction where the federal prisoner is detained. 28 U.S.C. § 2241(a)(c)(3).\\n\\nHahn’s appeal is properly before us because he is detained in South Carolina.\\n\\n Hahn contended that he was actually statutorily innocent of his second § 924(c)\\n\\nconviction after Rentz because the charge was procedurally improper. The magistrate\\n\\njudge issued a report that recommended denying Hahn’s petition because Hahn could not\\n\\nmeet the three-pronged test outlined in In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000).\\n\\nThat case holds that “§ 2255 is inadequate and ineffective to test the legality of a\\n\\nconviction” where:\\n\\n\\n\\n\\n 8\\n\\f (1) at the time of the conviction, settled law of this circuit or the Supreme\\n Court established the legality of the conviction; (2) subsequent to the\\n prisoner’s direct appeal and first § 2255 motion, the substantive law\\n changed such that the conduct of which the prisoner was convicted is\\n deemed not to be criminal; and (3) the prisoner cannot satisfy the\\n gatekeeping provisions of § 2255 because the new rule is not one of\\n constitutional law.\\n\\nId. Hahn objected to the magistrate’s report and recommendation, but the district court\\n\\nadopted the magistrate judge’s recommendation and denied his petition. Hahn filed a\\n\\nRule 59 motion to alter or amend the judgment. See Fed. R. Civ. P. 59(e). The district\\n\\ncourt denied the motion as without merit, and Hahn timely appealed. 7\\n\\n\\n\\n II.\\n\\n Generally, defendants who are convicted in federal court must pursue habeas relief\\n\\nfrom their convictions and sentences through the procedures set out in 28 U.S.C. § 2255.\\n\\nRice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010). Nonetheless, § 2255 includes a\\n\\n“savings clause” that preserves the availability of § 2241 relief when § 2255 proves\\n\\n“inadequate or ineffective to test the legality of a [prisoner’s] detention.” 28 U.S.C.\\n\\n§ 2255(e).\\n\\n As the district court properly recognized, in determining whether to grant habeas\\n\\nrelief under the savings clause, we consider (1) whether the conviction was proper under\\n\\nthe settled law of this circuit or Supreme Court at the time; (2) if the law of conviction\\n\\n\\n 7\\n The district court had jurisdiction over Hahn’s § 2241 petition under 28 U.S.C.\\n§ 1331. This Court has jurisdiction over this appeal under 28 U.S.C. §§ 1291(a) and\\n2253(a).\\n\\n\\n 9\\n\\fchanged after the prisoner’s direct appeal and first § 2255 motion; and (3) if the prisoner\\n\\ncannot meet the traditional § 2255 standard because the change is not one of\\n\\nconstitutional law. In re Jones, 226 F.3d at 333-34. In evaluating substantive claims\\n\\nunder the savings clause, however, we look to the substantive law of the circuit where a\\n\\ndefendant was convicted. In re Davenport, 147 F.3d 605, 611-12 (7th Cir. 1998); Eames\\n\\nv. Jones, 793 F. Supp. 2d 747, 750 (E.D.N.C. 2011). Hahn was convicted in the Tenth\\n\\nCircuit. For this reason, we apply our procedural law, but Tenth Circuit substantive law\\n\\ngoverns the petition. We review the district court’s denial of Hahn’s § 2241 petition de\\n\\nnovo. Fontanez v. O’Brien, 807 F.3d 84, 86 (4th Cir. 2015).\\n\\n A.\\n\\n The first prong of In re Jones requires that “at the time of conviction, settled law\\n\\nof the circuit or the Supreme Court established the legality of the conviction.” 226 F.3d\\n\\nat 333-34. Here, the legality of the conviction turns on whether it was proper at the time\\n\\nto charge and convict Hahn with two § 924(c) counts based on the possession of a single\\n\\ncollection of firearms in both: (1) furtherance of intentionally manufacturing 100 or\\n\\nmore marijuana plants and (2) the opening and maintaining of a place for the purpose of\\n\\nmanufacturing, distributing, and using marijuana.\\n\\n There are two legal principles that may limit the Government’s power to pursue\\n\\nmultiple charges for the same underlying conduct in this case: (1) the statute’s unit of\\n\\nprosecution and (2) the Double Jeopardy Clause. At the time of Hahn’s conviction,\\n\\nTenth Circuit law held that the only requirement for charging multiple § 924(c)(1)(A)\\n\\ncounts based on a single criminal event was that the crimes of violence or drug\\n\\n\\n 10\\n\\ftrafficking crimes underlying each count be separate to avoid violations of the Double\\n\\nJeopardy Clause. 8 See Blockburger v. United States, 284 U.S. 299, 304 (1932)\\n\\n(explaining that the Double Jeopardy Clause prohibits punishing a defendant for the same\\n\\nconduct under two distinct statutory provisions unless “each provision requires proof of a\\n\\nfact which the other does not”). Sturmoski did not address any concerns regarding the\\n\\nstatutory unit of prosecution.\\n\\n In Sturmoski, the Tenth Circuit rejected the defendant’s argument that multiple\\n\\n§ 924(c) convictions for the same underlying conduct were impermissible, reasoning that\\n\\n“separate convictions can arise from essentially identical facts” if the convictions do not\\n\\nviolate double jeopardy. 971 F.2d at 461. Sturmoski was the governing law at the time\\n\\nHahn was charged and convicted. It follows, then, that at the time of conviction the\\n\\nsettled law of the Tenth Circuit established the legality of Hahn’s two convictions\\n\\npursuant to the same conduct under § 924(c). Hahn thus meets the first requirement of\\n\\nour savings clause inquiry.\\n\\n B.\\n\\n Our decision in In re Jones next requires that we ask whether “subsequent to the\\n\\nprisoner’s direct appeal and first § 2255 motion, the substantive law changed such that\\n\\nthe conduct of which the prisoner was convicted is deemed not to be criminal.” 226 F.3d\\n\\nat 333-34. Hahn argues that the Tenth Circuit’s 2015 decision in Rentz renders non-\\n\\ncriminal the conduct on which his second § 924(c) conviction was based. We must\\n\\n 8\\n The Tenth Circuit did not rely upon a separate unit-of-prosecution analysis when\\ndetermining the propriety of multiple charges or counts.\\n\\n\\n 11\\n\\ftherefore determine whether the rule announced in Rentz establishes that the conduct\\n\\nunderlying Hahn’s second firearm conviction is no longer criminal. We hold that it does.\\n\\n In 2013, a panel of the Tenth Circuit heard United States v. Rentz, a case in which\\n\\na defendant’s single use of a firearm, resulting in one gun shot, led to convictions for two\\n\\ncrimes: assault and murder. 735 F.3d 1245, 1247 (10th Cir. 2013). The grand jury\\n\\nindicted the defendant on two counts of use of a firearm in furtherance of a crime of\\n\\nviolence, one for the assault and one for the murder. Id. The defendant moved to dismiss\\n\\nthe second firearm count, arguing that: (1) Congress did not intend to punish a person for\\n\\ntwo violations of § 924(c) based on a single use of a firearm and (2) punishment on both\\n\\nfirearm counts would violate the Double Jeopardy Clause. Id. The district court agreed\\n\\nand granted the defendant’s motion. Id.\\n\\n On appeal, the Tenth Circuit reversed. Id. at 1254. The panel, relying on\\n\\nSturmoski, “held that the proper ‘unit of prosecution’ under § 924(c) is a single\\n\\nunderlying offense—meaning that two convictions under § 924(c) arising from the same\\n\\ncourse of conduct were proper under the language of § 924(c).” Id. at 1250.\\n\\n The Tenth Circuit later granted rehearing en banc to decide the unit of prosecution\\n\\nissue that led to the reversal of the district court’s decision. See Rentz, 777 F.3d at 1117.\\n\\nThe Tenth Circuit explained that the question presented was whether, as a “matter of\\n\\nstatutory interpretation, § 924(c)(1)(A) authorizes multiple charges when everyone\\n\\nadmits there’s only a single use, carry, or possession.” Id. at 1108. The court held that\\n\\nthe Government must prove a separate use, carry, or possession for each § 924(c) charge\\n\\n\\n\\n\\n 12\\n\\fit brings. Id. at 1109. The court thus vacated the panel opinion relying on Sturmoski and\\n\\naffirmed the district court’s decision. Id. at 1115.\\n\\n Hahn argues that the en banc decision in Rentz constitutes a substantial change in\\n\\nthe law because it introduces a new statutory framework that was not present in\\n\\nSturmoski. We agree. Under Sturmoski, whether or not conduct could lead to multiple\\n\\ncharges under § 924(c) in the Tenth Circuit depended solely on whether the charge\\n\\nviolated the Double Jeopardy Clause. Now under Rentz, it is not enough that the multiple\\n\\ncharges pass muster under the Double Jeopardy Clause. Rather, multiple charges must\\n\\nalso comply with a unit-of-prosecution statutory analysis that examines how many\\n\\ndistinct instances of conduct exist. When the charges or counts exceed the number of\\n\\nacts, those extra charges or counts cannot form the basis of additional criminal liability.\\n\\nIn sum, Rentz constitutes a substantive change in the law that renders Hahn’s firearm\\n\\npossession no longer sufficient to support two § 924(c) convictions.\\n\\n The Government advances several arguments to the contrary, none of which we\\n\\nfind persuasive. Relying on Schlup v. Delo, 513 U.S. 298 (1995), the Government\\n\\nattempts to import a procedural gateway actual innocence analysis into the adjudication\\n\\nof Hahn’s petition. The Government argues that Hahn must demonstrate actual\\n\\ninnocence: that he did not commit the underlying conduct, i.e., possession of the\\n\\nfirearms, in order to warrant relief under the savings clause. The Government asks us to\\n\\nutilize an analysis that requires a petitioner “to support his allegations of constitutional\\n\\nerror with new reliable evidence.” Schlup, 513 U.S. at 324. This argument fails because\\n\\nthe Fourth Circuit does not require an actual innocence analysis under the savings clause\\n\\n\\n 13\\n\\fand adopting the Government’s position would be contrary to the settled and established\\n\\nlaw of this Circuit. 226 F.3d at 333-34. The test in In re Jones functions as a gateway to\\n\\nrelief without interrogating the factual issues of whether the underlying criminal activity\\n\\noccurred. In Re Jones assumes that the factual record is settled but requires this Court to\\n\\ncompare prior and current precedent to evaluate whether a substantive change in the law\\n\\nhas occurred. A petitioner satisfies this standard if the substantive change in the law\\n\\nmakes previously illegal conduct no longer a source of criminal liability. In other words,\\n\\nour analysis is tethered to a change in the law, not a change in the factual underpinnings\\n\\nor evidence of a criminal record. If this substantive change in the law occurs after the\\n\\nprisoner’s direct appeal and first § 2255 motion, he satisfies the second requirement of\\n\\nthe In re Jones standard. This is the standard that we use to ascertain a prisoner’s\\n\\nentitlement to relief under the savings clause.\\n\\n Moreover, the Government argues that Rentz does not control because there are\\n\\nfactual differences between Sturmoski and Rentz that make them distinguishable.\\n\\nHowever, Rentz outlines a new statutory scheme of interpretation that is not a fact-\\n\\ndependent inquiry. Indeed, Rentz now defines and requires a unit-of-prosecution analysis\\n\\nin criminal matters implicating § 924(c). The newly required analysis applies to any\\n\\n§ 924(c) charge regardless of the particular facts of the case.\\n\\n The Government further argues that Hahn’s case involves multiple possessions and\\n\\nthat the petition should therefore still be denied. We also find this argument unavailing.\\n\\nHahn was charged with two counts based on a single gun collection that the police\\n\\ndiscovered at his home on a single day. The same firearm collection was listed in the\\n\\n\\n 14\\n\\findictment as support for both of the firearm counts. The Government argues that Hahn\\n\\nshould still be found to have separate possessions under Rentz because the guns were\\n\\nfound at different locations throughout his house. See United States v. Hutching, 75 F.3d\\n\\n1453, 1460 (10th Cir. 1996). And yet we discern no cognizable relationship among the\\n\\nnumber of guns, the locations of the guns, and the number of § 924(c) counts in Hahn’s\\n\\nthe indictment. For instance, the indictment did not charge that ten of the guns were for\\n\\nthe furtherance of the manufacturing charge based on one location and that eleven of the\\n\\nguns were for the furtherance of the place-of-manufacture charge based on another\\n\\nlocation. The same set of 21 guns was simply listed twice in the indictment, indicating\\n\\nthat the two counts were based on drug activity and a singular possession. Rentz renders\\n\\nthis approach impermissible. 9\\n\\n In conclusion, Rentz substantively changed the law of the Tenth Circuit. Because\\n\\nof this change, Hahn’s petition satisfies the second prong of In re Jones. Only one\\n\\nfirearm possession exists, and therefore—under Rentz—only one § 924(c) charge is\\n\\nproper here.\\n\\n C.\\n\\n Finally, our decision in In re Jones provides that Hahn can pursue § 2241 relief\\n\\nonly if he “cannot satisfy the gatekeeping provisions of § 2255 because the new rule is\\n\\n\\n 9\\n The Government correctly notes that the Tenth Circuit in Rentz explains that the\\nexact definition of possession, carry, and use remains unsettled. However, this does not\\ndiminish the Tenth Circuit’s holding in Rentz that where, as here, the Government\\ncharges two § 924(c) counts for the same single carry, use, or possession, the multiple\\ncharges are in error.\\n\\n\\n 15\\n\\fnot one of constitutional law.” 226 F.3d at 333-34. Hahn could not successfully pursue\\n\\ncollateral review under § 2255 because Rentz did not rely on any rule of constitutional\\n\\nlaw and no new evidence was proffered. Hahn thus meets the third and final requirement\\n\\nof the savings clause and is entitled to relief.\\n\\n\\n\\n III.\\n\\n Hahn’s conviction on Count IV—the second of his § 924(c) convictions—cannot\\n\\nstand because it is not supported by an independent firearm possession under recent\\n\\nTenth Circuit precedent. We therefore reverse the district court’s decision and remand\\n\\nwith instructions to grant Hahn’s writ of habeas corpus and vacate his second conviction\\n\\nunder 18 U.S.C. § 924(c) and the associated consecutive 300-month sentence.\\n\\n\\n\\n REVERSED AND REMANDED WITH INSTRUCTIONS\\n\\n\\n\\n\\n 16\", \"author\": \"Reversed and remanded with instructions by published opinion. Chief Judge Gregory\"}, {\"type\": \"concurrence\", \"author\": \"WYNN\", \"text\": \"WYNN, J., concurring:\\n\\n I concur fully in the majority opinion.\\n\\n I write separately to further explain why the “actual innocence” test proposed by the\\n\\ngovernment—which the Supreme Court has directed courts to apply in determining\\n\\nwhether a habeas petitioner may pursue a procedurally defaulted constitutional claim, see\\n\\nBousley v. United States, 523 U.S. 614 (1998); Schlup v. Delo, 513 U.S. 298 (1995)—does\\n\\nnot apply in determining whether a petitioner is entitled to avail himself of 28 U.S.C.\\n\\n§ 2255’s “savings clause” on grounds that a later-corrected error of statutory construction\\n\\nrendered “the conduct of which the prisoner was convicted . . . not criminal.” In re Jones,\\n\\n226 F.3d 328, 333–34 (4th Cir. 2000) (en banc).\\n\\n Under the Schlup/Bousley “actual innocence” test, Petitioner Marcus Hahn would\\n\\nhave to show that “no reasonable juror would have found [him] guilty.” 513 U.S. at 329.\\n\\nAccording to the government, the “actual innocence” test requires that a court review “all\\n\\nthe evidence in the record as a whole”—even evidence that the jury did not necessarily\\n\\ncredit in rendering its verdict, that was inadmissible at trial, or that became available only\\n\\nafter trial—“and determine whether it is more likely than not that no reasonable juror would\\n\\nhave found the defendant guilty beyond a reasonable doubt.” Appellee’s Br. at 37. The\\n\\ngovernment maintains that Petitioner cannot meet this standard because firearms found in\\n\\nseveral locations in Petitioners’ house constituted “independent” possessions—with\\n\\nfirearms found in the ground floor of Petitioner’s residence supporting his marijuana\\n\\nmanufacturing offense and firearms found on the second floor of his home supporting his\\n\\nmaintenance of a home for the purpose of marijuana manufacturing, distribution, and use\\n\\n\\n 17\\n\\foffense. Appellee’s Br. at 35–36. Significantly, the government never presented that\\n\\ntheory in its indictment or to the jury.\\n\\n Several compelling reasons support our conclusion that the actual innocence\\n\\nframework does not apply in determining whether a petitioner is entitled to pursue relief\\n\\nunder the savings clause as a result of a statutory construction error. First, Jones—which\\n\\nestablished this Court’s three-prong test for determining whether a petitioner may avail\\n\\nhimself of the savings clause as a result of a later-corrected error in statutory construction—\\n\\ndoes not use the term “actual innocence,” instead requiring a petitioner to show that “the\\n\\nsubstantive law changed such that the conduct of which the prisoner was convicted is\\n\\ndeemed not to be criminal.” Jones, 226 F.3d at 333–34 (emphasis added). The plain\\n\\nmeaning of the phrase “the conduct of which the prisoner was convicted” refers to the\\n\\nconduct that a jury found beyond a reasonable doubt supported the prisoner’s conviction.\\n\\nBut, as explained above, under the actual innocence set forth in Schlup and further\\n\\nexplicated in Bousley, a court assessing whether a petitioner is entitled to relief is not\\n\\nlimited to the facts the government introduced at trial, let alone to those facts that the jury\\n\\nfound beyond a reasonable doubt.\\n\\n Notably, Jones focused not on whether a petitioner was “actually innocent,” but\\n\\nwhether a subsequent change in statutory construction amounted to a “fundamental defect”\\n\\nin the petitioner’s prosecution. Id. at 332–33 & n.3; see also In re Davenport, 147 F.3d\\n\\n605, 611 (7th Cir. 1998) (Posner, J.) (“A federal prisoner should be permitted to seek\\n\\nhabeas corpus only if he had no reasonable opportunity to obtain earlier judicial correction\\n\\nof a fundamental defect in his conviction or sentence because the law changed after his first\\n\\n\\n 18\\n\\f2255 motion.” (emphasis added)). The Tenth Circuit’s (originally) errant construction of\\n\\nthe statute under Petitioner was convicted, 18 U.S.C. § 924(c)(1), amounts to a\\n\\n“fundamental defect” amenable correction through Section 2255’s savings clause because\\n\\nit deprived Petitioner of the chance to argue to the jury that the storage of the numerous\\n\\nguns in his house did not constitute independent possessions.\\n\\n Second, this Court’s holding in United States v. Wheeler, 886 F.3d 415 (4th Cir.\\n\\n2018)—that a prisoner may avail himself of Section 2255’s savings clause if a retroactive\\n\\nchange in the construction of a federal sentencing statute rendered the petitioner’s sentence\\n\\nerroneous—runs contrary to an actual innocence requirement. In Wheeler, this Court\\n\\nrejected the district court’s holding that Jones extended only to convictions tainted by\\n\\nstatutory construction errors, and therefore not to sentences tainted by an error of statutory\\n\\nconstruction. 886 F.3d at 428. In reaching that conclusion, this Court emphasized that\\n\\nthe Jones test explicitly applied to “fundamental defects” in “convictions and sentences.” Id.\\n\\nat 427 (quoting Jones, 226 F.3d at 332–33 & n.2)). Wheeler’s holding that Jones extends\\n\\nto sentences—not just convictions—establishes that Jones does not require actual\\n\\ninnocence. Indeed, the petitioner in Wheeler, who was originally convicted of conspiracy\\n\\nto possess with intent to distribute crack and powder cocaine, was not “actually innocent”\\n\\nof the offense—he in fact possessed the crack and powder—he just was subject to a\\n\\nincorrectly high mandatory minimum as a result of an error by this Court in construing the\\n\\nstatute under which he was originally sentenced. Id. at 419–21. Applying the actual\\n\\ninnocence standard to challenges to a conviction when we apply the fundamental defect\\n\\n\\n\\n\\n 19\\n\\fstandard in the sentencing context would create the odd result that a lower standard would\\n\\napply in the context of sentencing challenges than conviction challenges.\\n\\n Third, it makes no theoretical sense to extend the Schlup/Bousley actual innocence\\n\\ntest to the savings clause context, at least in cases like the instant case in which the\\n\\npetitioner pressed his legal argument in his original proceedings. As explained above, the\\n\\nSchlup/Bousley actual innocence test applies when a prisoner procedurally defaulted the\\n\\nclaim at issue. Typically, a federal prisoner seeks to rely on Schlup/Bousley actual\\n\\ninnocence test when he cannot meet the “cause” and “prejudice” necessary to excuse the\\n\\nprocedural default under Section 2255. For instance, the prisoner in Bousley, who had\\n\\n“pleaded guilty to ‘using’ a firearm in violation of 18 U.S.C. § 924(c)(1),” sought to void\\n\\nhis plea on grounds that it was not knowing and voluntary after the Supreme Court clarified\\n\\nthe definition of “using.” 523 U.S. at 616. The prisoner procedurally defaulted the claim\\n\\nby failing to raise it in his direct appeal. Id. at 622. The Court held that the prisoner could\\n\\nnot establish “cause” for his procedural default because he could have raised the argument\\n\\nin his direct appeal but failed to do so. Id. at 622–23.\\n\\n By contrast, both before his original trial court and on direct appeal, Petitioner\\n\\nargued that the single indicted possession did not, as a matter of statutory construction,\\n\\nsupport his two Section 924(c)(1) convictions. The only reason that argument failed was\\n\\nbecause it was foreclosed by circuit precedent. Accordingly, at least when, as here, a\\n\\npetitioner does not procedurally default a claim, it is improper to subject that petitioner to\\n\\na standard more onerous than the cause-and-prejudice standard applied in procedural\\n\\ndefault cases.\\n\\n\\n 20\\n\\f Finally, it is patently unfair to subject a petitioner to the onerous actual innocence\\n\\nstandard when an appellate court’s errant statutory construction foreclosed the petitioner\\n\\nfrom making a potentially meritorious argument to a jury or in a motion for acquittal. As\\n\\nthe majority opinion explains, Petitioner repeatedly argued before his trial court and on\\n\\ndirect appeal that the single indicted possession could not support two Section 824(c)(1)\\n\\nconvictions. Under its actual innocence approach, the government theorizes that the jury\\n\\ncould have found that firearms stored in different parts of the house constituted distinct\\n\\npossessions. But because circuit precedent foreclosed Petitioner’s unit-of-prosecution\\n\\nargument—and, therefore, the government never needed to advance an independent\\n\\npossession argument to the jury—Petitioner was never given the opportunity to argue to\\n\\nthe jury that all the firearms amounted to a single possession.\\n\\n *****\\n\\n I further note that even if Schlup’s actual innocence standard applied—and, as\\n\\nexplained above, this Court rightly holds that it does not—Petitioner would be entitled to\\n\\nrelief because, as the majority opinion explains, his indictment alleges that a single\\n\\npossession supported both of his 924(c)(1)(A) convictions. In Bousley, the Supreme Court\\n\\nheld that in determining whether a prisoner is “actually innocent,” a court may not consider\\n\\nfactual theories not alleged in a habeas petitioner’s indictment or which, based on record\\n\\nevidence, the government elected not to charge in exchange for obtaining a guilty plea.\\n\\n523 U.S. at 624. The government in Bousley indicted and convicted the prisoner for\\n\\n“using” a firearm in violation of Section 924(c)(1). Id. After the Supreme Court issued a\\n\\ndecision clarifying what constitutes “use” of a firearm for purposes of Section 924(c)(1),\\n\\n\\n 21\\n\\fthe prisoner sought relief under Section 2255(a) on grounds that his plea to “using” the\\n\\nfirearm was not voluntary and knowing because he could not have known the correct\\n\\nmeaning of “using,” notwithstanding that he had procedurally defaulted that argument. Id.\\n\\nat 621. The Court held that the prisoner could not establish the “cause” necessary to excuse\\n\\nhis procedural default, and therefore that the prisoner could only obtain habeas relief\\n\\nthrough the actual innocence gateway. Id. at 622. In doing so, the Court expressly rejected\\n\\nthe government’s argument that the prisoner “must demonstrate that he is actually innocent\\n\\nof both ‘using’ and ‘carrying’ a firearm in violation of § 924(c)(1).” Id. at 624. The Court\\n\\nexplained that the prisoner need not demonstrate that he was actually innocent of “carrying\\n\\nthe firearm” because his “indictment charged him only with ‘using’ firearms” and “there\\n\\n[wa]s no record evidence that the Government elected not to charge petitioner with\\n\\n‘carrying’ a firearm in exchange for his plea of guilty.” Id.\\n\\n As in Bousley, Petitioner’s indictment charged him only with a single possession—\\n\\nit did not allege that subsets of the uniform list of firearms set forth in each charge of the\\n\\nindictment constituted independent “possessions.” Accordingly, any holding that a\\n\\nreasonable juror could have found that subsets of the firearms constituted distinct\\n\\npossessions would amount to an impermissible constructive amendment of the indictment.\\n\\nSee Stirone v. United States, 361 U.S. 212, 215–16 (1960). (“[A]fter an indictment has\\n\\nbeen returned its charges may not be broadened through amendment except by the grand\\n\\njury itself.”).\\n\\n\\n\\n\\n 22\"}]}"},"judge1":{"kind":"string","value":"GREGORY"},"judge2":{"kind":"string","value":"WYNN"},"judge3":{"kind":"string","value":"THACKER"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":4,"string":"4"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":2,"string":"2"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4642456/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":1,"string":"1"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Marcus HAHN, Petitioner - Appellant, v. Warden Bonita MOSELEY, Federal Correctional Institution, Edgefield, South Carolina, Respondent - Appellee.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-07-24\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-6283\n\n\nMARCUS HAHN,\n\n Petitioner – Appellant,\n\n v.\n\nWARDEN BONITA MOSELEY, Federal Correctional Institution, Edgefield,\nSouth Carolina,\n\n Respondent – Appellee.\n\n\nAppeal from the United States District Court for the District of South Carolina, at\nBeaufort. Joseph F. Anderson, Jr., Senior District Judge. (9:16–cv–03235–JFA)\n\n\nArgued: May 9, 2019 Decided: July 24, 2019\n\n\nBefore GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.\n\n\nReversed and remanded with instructions by published opinion. Chief Judge Gregory\nwrote the opinion, in which Judge Wynn and Judge Thacker joined. Judge Wynn wrote a\nconcurring opinion.\n\n\nARGUED: Susan Michelle Pelletier, MUNGER, TOLLES & OLSON LLP,\nWashington, D.C., for Appellant. John Michael Pellettieri, OFFICE OF THE UNITED\nSTATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: Chad Golder,\nMUNGER, TOLLES & OLSON LLP, Washington, D.C., for Appellant.\nBrian A. Benczkowski, Assistant Attorney General, Matthew S. Miner, Deputy Assistant\nAttorney, General, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE,\n\fWashington, D.C.; Sherri A. Lydon, United States Attorney, OFFICE OF THE UNITED\nSTATES ATTORNEY, Columbia, South Carolina, for Appellee.\n\n\n\n\n 2\n\fGREGORY, Chief Judge:\n\n Petitioner-Appellant Marcus Hahn appeals the final order of the district court\n\ndenying his petition for a writ of habeas corpus under 28 U.S.C. § 2241. Because Hahn’s\n\ncurrent sentence stems from faulty arithmetic based on a now-obsolete scheme of\n\nstatutory interpretation, we conclude that Hahn’s petition meets the requirements of 28\n\nU.S.C. § 2255(e), the savings clause. We therefore reverse the district court’s order and\n\nremand with instructions to grant Hahn’s writ of habeas corpus. 1\n\n\n\n\n I.\n\n On December 31, 1999, law enforcement from various state and federal agencies\n\nexecuted a search warrant for Hahn’s home near Albuquerque, New Mexico. Hahn was\n\narrested after law enforcement discovered and seized marijuana plants and firearms\n\nduring that search. On December 7, 2000, at the conclusion of a jury trial in the United\n\nStates District Court for the District of New Mexico, a jury convicted Hahn of the\n\nfollowing four counts: (1) intentionally manufacturing 100 or more marijuana plants; 2\n\n(2) opening and maintaining a place for the purpose of manufacturing, distributing, and\n\n\n\n 1\n The Government requested that this Court stay the current proceedings in\nanticipation of the Supreme Court’s decision whether to grant certiorari in United States\nv. Wheeler, 734 F. App’x 892 (4th Cir. 2018). The Government’s request is moot\nbecause the Supreme Court denied certiorari in Wheeler on March 18, 2019. See United\nStates v. Wheeler, 139 S. Ct. 1318 (2019).\n 2\n See 21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2.\n\n\n 3\n\fusing marijuana; 3 (3) possessing firearms in furtherance of the intentional manufacturing\n\nof 100 or more marijuana plants; 4 and (4) possessing a firearm in furtherance of the\n\nopening and maintaining a place for the purpose of manufacturing, distributing, and using\n\nmarijuana. 5 Counts III and IV are based on the same gun collection, which includes 21\n\nfirearms.\n\n In 2001, the district court sentenced Hahn to 480 months’ imprisonment for these\n\ngun and drug offenses. He received 60 months’ imprisonment for Count I, a concurrent\n\n27 months for Count II, a consecutive 120 months for Count III, and a consecutive 300\n\nmonths for Count IV. 6\n\n In 2002, on direct appeal to the Tenth Circuit, Hahn challenged the legality of his\n\nsentence for his second firearm conviction. He contended that the district court\n\nimpermissibly treated his second firearm conviction as “second or subsequent” to his first\n\nfirearm conviction for purposes of the statute’s sentencing enhancement. Hahn I, 38 F.\n\nApp’x at 554. Hahn argued that the court’s approach was in error because the underlying\n\ndrug crimes were part of a “continuing incident” and were “coterminous in space and\n\ntime.” Id. The Tenth Circuit rejected this argument, relying principally on United States\n\n\n 3\n See 21 U.S.C. § 856 (a)(1), (b).\n 4\n See 18 U.S.C. § 924(c)(1)(A).\n 5\n Id.\n 6\n The sentencing court characterized the Count IV firearm conviction as a “second\nor subsequent” conviction under § 924(c), for which the statute mandated a consecutive\nsentence of twenty-five years. United States v. Hahn, 38 F. App’x 553, 554 (10th Cir.\n2002) (“Hahn I”).\n\n\n 4\n\fv. Sturmoski, 971 F.2d 452, 461 (10th Cir. 1992) (“[C]onsecutive sentences may be\n\nimposed for multiple 924(c) counts if the offenses underlying each 924(c) count do not\n\nconstitute a single offense for double jeopardy purposes.”). Similar to Hahn, the\n\ndefendant in Sturmoski appealed convictions for: (1) attempting to manufacture a\n\ncontrolled substance; (2) maintaining a place for manufacturing a controlled substance;\n\nand (3) two 18 U.S.C. § 924(c) convictions for facilitating the aforementioned drug\n\ncounts. Hahn I, 38 F. App’x at 555. The Sturmoski court held that “Congress intended\n\nmultiple convictions under 924(c), even though the counts involved ‘the same criminal\n\nepisode,’ because Congress intended the underlying offenses to be separate.” Id. After\n\nreviewing Sturmoski, the Tenth Circuit in Hahn’s case found that “[t]he only difference\n\nbetween the situations in Sturmoski and in this case is that one of Hahn’s 924(c)\n\nconvictions was for possession in furtherance of manufacture, rather than possession in\n\nfurtherance of attempt to manufacture.” Id. Given the factual and legal similarities\n\nbetween Sturmoski and Hahn’s case, the court found that “Sturmoski clearly controls the\n\noutcome of this case. Hahn’s conviction for maintaining a place for manufacture is\n\ndistinct from his manufacture conviction, and his two 924(c) convictions are also\n\ndistinct.” Id. The court further ruled that “even if possession of a firearm occurs in\n\nconnection with a single criminal episode, a second 924(c) conviction arising out of that\n\nepisode can constitute a ‘second or subsequent conviction’ for sentencing purposes.” Id.\n\nThe Tenth Circuit therefore affirmed Hahn’s convictions and sentence. Id.\n\n In 2004, Hahn filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or\n\ncorrect his sentence in the United States District Court of New Mexico. He argued that\n\n\n 5\n\f“double jeopardy bars multiple § 924(c)(1) firearm convictions based on multiple\n\npredicate offenses which are factually inseparable in terms of time, space and underlying\n\nconduct.” United States v. Hahn, 191 F. App’x 758, 760 (10th Cir. 2006) (citation and\n\ninternal quotation marks omitted) (“Hahn II”). Hahn also argued that “§ 924(c)(1)\n\ncontains a number of ambiguities, requiring application of the rule of lenity.” Id. Hahn\n\nexplained that he did not previously raise these arguments because he received ineffective\n\nassistance of counsel. The district court dismissed the motion in 2004, concluding that\n\nHahn’s arguments were procedurally barred and without merit. Id.\n\n Hahn filed a motion for reconsideration under Federal Rule of Civil Procedure\n\n59(e). He disputed that his double jeopardy claim had been resolved on direct appeal and\n\nmoved to amend his § 2255 motion to add more evidence. Id. The district court treated\n\nthese motions as successive § 2255 motions and transferred them to the Tenth Circuit.\n\nHahn appealed this determination, and the Tenth Circuit issued a certificate of\n\nappealability to consider Hahn’s § 924(c)(1) arguments. The Tenth Circuit subsequently\n\naffirmed the dismissal and held that: (1) Hahn forfeited his double jeopardy claim and it\n\nwas procedurally barred because he did not raise it on direct appeal; (2) even if his double\n\njeopardy claim was not procedurally barred, counsel’s failure to raise it would not have\n\nconstituted ineffective assistance of counsel because Sturmoski controls and renders\n\nHahn’s double jeopardy claim meritless; and (3) as to the ambiguity argument, a motion\n\nto vacate could not be used, absent an intervening change in circuit law, to raise an\n\nargument that was resolved on direct appeal. Hahn II, 191 F. App’x at 760-61.\n\n\n\n\n 6\n\f In 2015, Hahn filed a motion under Rule 60(b)(4), alleging that he was entitled to\n\nrelief because of an en banc Tenth Circuit decision issued after the dismissal of his\n\npetition. United States v. Rentz, 777 F.3d 1105 (10th Cir. 2015). Hahn argued that Rentz\n\naltered the substantive law in the Tenth Circuit by establishing a new statutory\n\nframework interpreting § 924(c). Specifically, Hahn contended that Rentz added a unit-\n\nof-prosecution requirement for a § 924(c) conviction and therefore entitled him to relief\n\ndenied under Sturmoski. Unit-of-prosecution questions ask whether the conduct at issue\n\n“constitutes one, or several, violations of a single statutory provision.” Callanan v.\n\nUnited States, 364 U.S. 587, 597 (1961). In Rentz, the Tenth Circuit addressed the issue\n\nof whether, as a matter of statutory construction, § 924(c) “authorizes multiple charges\n\nwhen everyone admits there’s only a single use, carry, or possession.” 777 F.3d at 1108.\n\nAfter recognizing that this question was separate from the double jeopardy inquiry, the\n\ncourt ruled that each § 924(c) charge “requires an independent use, carry, or possession.”\n\nId. at 1115. Before Rentz, when Sturmoski was controlling law, multiple charges under\n\n§ 924(c) were permissible as long as they did not run afoul of the Double Jeopardy\n\nClause. After Rentz, the Tenth Circuit, based on the language of the statute itself, held\n\nthat multiple charges under § 924(c) based on the same conduct were not proper even if\n\nthey complied with the Double Jeopardy Clause. Thus, Rentz found that it was improper\n\nto allow multiple charges to arise from a single possession under the language of the\n\nstatute. Id.\n\n The district court determined that Hahn’s motion should be treated as a second or\n\nsubsequent § 2255 motion—i.e., a motion that could not be filed without precertification\n\n\n 7\n\fby the Court of Appeals—and transferred it to the Tenth Circuit. Hahn then filed a\n\nmotion to remand before the Tenth Circuit to allow the district court to consider the\n\nmerits of his Rule 60(b) motion or, in the alternative, for authorization to file a second or\n\nsuccessive § 2255 motion. The Tenth Circuit denied both the motion to remand and\n\nHahn’s request to file a second or successive § 2255 motion based on a procedural\n\nimpediment. Rentz was a Tenth Circuit decision, and thus did not meet the requirements\n\nfor a second or subsequent motion.\n\n At some point after 2015, correctional officials transferred Hahn to a facility in\n\nSouth Carolina, where he is currently detained. Hahn filed the instant petition under 28\n\nU.S.C. § 2241 in the United States District Court for the District of South Carolina.\n\nPursuant to § 2241, federal courts have jurisdiction over habeas corpus petitions from\n\nfederal inmates “in custody in violation of the Constitution or laws or treaties of the\n\nUnited States.” 28 U.S.C. § 2241(c)(3). Habeas petitions filed under this section must be\n\nfiled in the jurisdiction where the federal prisoner is detained. 28 U.S.C. § 2241(a)(c)(3).\n\nHahn’s appeal is properly before us because he is detained in South Carolina.\n\n Hahn contended that he was actually statutorily innocent of his second § 924(c)\n\nconviction after Rentz because the charge was procedurally improper. The magistrate\n\njudge issued a report that recommended denying Hahn’s petition because Hahn could not\n\nmeet the three-pronged test outlined in In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000).\n\nThat case holds that “§ 2255 is inadequate and ineffective to test the legality of a\n\nconviction” where:\n\n\n\n\n 8\n\f (1) at the time of the conviction, settled law of this circuit or the Supreme\n Court established the legality of the conviction; (2) subsequent to the\n prisoner’s direct appeal and first § 2255 motion, the substantive law\n changed such that the conduct of which the prisoner was convicted is\n deemed not to be criminal; and (3) the prisoner cannot satisfy the\n gatekeeping provisions of § 2255 because the new rule is not one of\n constitutional law.\n\nId. Hahn objected to the magistrate’s report and recommendation, but the district court\n\nadopted the magistrate judge’s recommendation and denied his petition. Hahn filed a\n\nRule 59 motion to alter or amend the judgment. See Fed. R. Civ. P. 59(e). The district\n\ncourt denied the motion as without merit, and Hahn timely appealed. 7\n\n\n\n II.\n\n Generally, defendants who are convicted in federal court must pursue habeas relief\n\nfrom their convictions and sentences through the procedures set out in 28 U.S.C. § 2255.\n\nRice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010). Nonetheless, § 2255 includes a\n\n“savings clause” that preserves the availability of § 2241 relief when § 2255 proves\n\n“inadequate or ineffective to test the legality of a [prisoner’s] detention.” 28 U.S.C.\n\n§ 2255(e).\n\n As the district court properly recognized, in determining whether to grant habeas\n\nrelief under the savings clause, we consider (1) whether the conviction was proper under\n\nthe settled law of this circuit or Supreme Court at the time; (2) if the law of conviction\n\n\n 7\n The district court had jurisdiction over Hahn’s § 2241 petition under 28 U.S.C.\n§ 1331. This Court has jurisdiction over this appeal under 28 U.S.C. §§ 1291(a) and\n2253(a).\n\n\n 9\n\fchanged after the prisoner’s direct appeal and first § 2255 motion; and (3) if the prisoner\n\ncannot meet the traditional § 2255 standard because the change is not one of\n\nconstitutional law. In re Jones, 226 F.3d at 333-34. In evaluating substantive claims\n\nunder the savings clause, however, we look to the substantive law of the circuit where a\n\ndefendant was convicted. In re Davenport, 147 F.3d 605, 611-12 (7th Cir. 1998); Eames\n\nv. Jones, 793 F. Supp. 2d 747, 750 (E.D.N.C. 2011). Hahn was convicted in the Tenth\n\nCircuit. For this reason, we apply our procedural law, but Tenth Circuit substantive law\n\ngoverns the petition. We review the district court’s denial of Hahn’s § 2241 petition de\n\nnovo. Fontanez v. O’Brien, 807 F.3d 84, 86 (4th Cir. 2015).\n\n A.\n\n The first prong of In re Jones requires that “at the time of conviction, settled law\n\nof the circuit or the Supreme Court established the legality of the conviction.” 226 F.3d\n\nat 333-34. Here, the legality of the conviction turns on whether it was proper at the time\n\nto charge and convict Hahn with two § 924(c) counts based on the possession of a single\n\ncollection of firearms in both: (1) furtherance of intentionally manufacturing 100 or\n\nmore marijuana plants and (2) the opening and maintaining of a place for the purpose of\n\nmanufacturing, distributing, and using marijuana.\n\n There are two legal principles that may limit the Government’s power to pursue\n\nmultiple charges for the same underlying conduct in this case: (1) the statute’s unit of\n\nprosecution and (2) the Double Jeopardy Clause. At the time of Hahn’s conviction,\n\nTenth Circuit law held that the only requirement for charging multiple § 924(c)(1)(A)\n\ncounts based on a single criminal event was that the crimes of violence or drug\n\n\n 10\n\ftrafficking crimes underlying each count be separate to avoid violations of the Double\n\nJeopardy Clause. 8 See Blockburger v. United States, 284 U.S. 299, 304 (1932)\n\n(explaining that the Double Jeopardy Clause prohibits punishing a defendant for the same\n\nconduct under two distinct statutory provisions unless “each provision requires proof of a\n\nfact which the other does not”). Sturmoski did not address any concerns regarding the\n\nstatutory unit of prosecution.\n\n In Sturmoski, the Tenth Circuit rejected the defendant’s argument that multiple\n\n§ 924(c) convictions for the same underlying conduct were impermissible, reasoning that\n\n“separate convictions can arise from essentially identical facts” if the convictions do not\n\nviolate double jeopardy. 971 F.2d at 461. Sturmoski was the governing law at the time\n\nHahn was charged and convicted. It follows, then, that at the time of conviction the\n\nsettled law of the Tenth Circuit established the legality of Hahn’s two convictions\n\npursuant to the same conduct under § 924(c). Hahn thus meets the first requirement of\n\nour savings clause inquiry.\n\n B.\n\n Our decision in In re Jones next requires that we ask whether “subsequent to the\n\nprisoner’s direct appeal and first § 2255 motion, the substantive law changed such that\n\nthe conduct of which the prisoner was convicted is deemed not to be criminal.” 226 F.3d\n\nat 333-34. Hahn argues that the Tenth Circuit’s 2015 decision in Rentz renders non-\n\ncriminal the conduct on which his second § 924(c) conviction was based. We must\n\n 8\n The Tenth Circuit did not rely upon a separate unit-of-prosecution analysis when\ndetermining the propriety of multiple charges or counts.\n\n\n 11\n\ftherefore determine whether the rule announced in Rentz establishes that the conduct\n\nunderlying Hahn’s second firearm conviction is no longer criminal. We hold that it does.\n\n In 2013, a panel of the Tenth Circuit heard United States v. Rentz, a case in which\n\na defendant’s single use of a firearm, resulting in one gun shot, led to convictions for two\n\ncrimes: assault and murder. 735 F.3d 1245, 1247 (10th Cir. 2013). The grand jury\n\nindicted the defendant on two counts of use of a firearm in furtherance of a crime of\n\nviolence, one for the assault and one for the murder. Id. The defendant moved to dismiss\n\nthe second firearm count, arguing that: (1) Congress did not intend to punish a person for\n\ntwo violations of § 924(c) based on a single use of a firearm and (2) punishment on both\n\nfirearm counts would violate the Double Jeopardy Clause. Id. The district court agreed\n\nand granted the defendant’s motion. Id.\n\n On appeal, the Tenth Circuit reversed. Id. at 1254. The panel, relying on\n\nSturmoski, “held that the proper ‘unit of prosecution’ under § 924(c) is a single\n\nunderlying offense—meaning that two convictions under § 924(c) arising from the same\n\ncourse of conduct were proper under the language of § 924(c).” Id. at 1250.\n\n The Tenth Circuit later granted rehearing en banc to decide the unit of prosecution\n\nissue that led to the reversal of the district court’s decision. See Rentz, 777 F.3d at 1117.\n\nThe Tenth Circuit explained that the question presented was whether, as a “matter of\n\nstatutory interpretation, § 924(c)(1)(A) authorizes multiple charges when everyone\n\nadmits there’s only a single use, carry, or possession.” Id. at 1108. The court held that\n\nthe Government must prove a separate use, carry, or possession for each § 924(c) charge\n\n\n\n\n 12\n\fit brings. Id. at 1109. The court thus vacated the panel opinion relying on Sturmoski and\n\naffirmed the district court’s decision. Id. at 1115.\n\n Hahn argues that the en banc decision in Rentz constitutes a substantial change in\n\nthe law because it introduces a new statutory framework that was not present in\n\nSturmoski. We agree. Under Sturmoski, whether or not conduct could lead to multiple\n\ncharges under § 924(c) in the Tenth Circuit depended solely on whether the charge\n\nviolated the Double Jeopardy Clause. Now under Rentz, it is not enough that the multiple\n\ncharges pass muster under the Double Jeopardy Clause. Rather, multiple charges must\n\nalso comply with a unit-of-prosecution statutory analysis that examines how many\n\ndistinct instances of conduct exist. When the charges or counts exceed the number of\n\nacts, those extra charges or counts cannot form the basis of additional criminal liability.\n\nIn sum, Rentz constitutes a substantive change in the law that renders Hahn’s firearm\n\npossession no longer sufficient to support two § 924(c) convictions.\n\n The Government advances several arguments to the contrary, none of which we\n\nfind persuasive. Relying on Schlup v. Delo, 513 U.S. 298 (1995), the Government\n\nattempts to import a procedural gateway actual innocence analysis into the adjudication\n\nof Hahn’s petition. The Government argues that Hahn must demonstrate actual\n\ninnocence: that he did not commit the underlying conduct, i.e., possession of the\n\nfirearms, in order to warrant relief under the savings clause. The Government asks us to\n\nutilize an analysis that requires a petitioner “to support his allegations of constitutional\n\nerror with new reliable evidence.” Schlup, 513 U.S. at 324. This argument fails because\n\nthe Fourth Circuit does not require an actual innocence analysis under the savings clause\n\n\n 13\n\fand adopting the Government’s position would be contrary to the settled and established\n\nlaw of this Circuit. 226 F.3d at 333-34. The test in In re Jones functions as a gateway to\n\nrelief without interrogating the factual issues of whether the underlying criminal activity\n\noccurred. In Re Jones assumes that the factual record is settled but requires this Court to\n\ncompare prior and current precedent to evaluate whether a substantive change in the law\n\nhas occurred. A petitioner satisfies this standard if the substantive change in the law\n\nmakes previously illegal conduct no longer a source of criminal liability. In other words,\n\nour analysis is tethered to a change in the law, not a change in the factual underpinnings\n\nor evidence of a criminal record. If this substantive change in the law occurs after the\n\nprisoner’s direct appeal and first § 2255 motion, he satisfies the second requirement of\n\nthe In re Jones standard. This is the standard that we use to ascertain a prisoner’s\n\nentitlement to relief under the savings clause.\n\n Moreover, the Government argues that Rentz does not control because there are\n\nfactual differences between Sturmoski and Rentz that make them distinguishable.\n\nHowever, Rentz outlines a new statutory scheme of interpretation that is not a fact-\n\ndependent inquiry. Indeed, Rentz now defines and requires a unit-of-prosecution analysis\n\nin criminal matters implicating § 924(c). The newly required analysis applies to any\n\n§ 924(c) charge regardless of the particular facts of the case.\n\n The Government further argues that Hahn’s case involves multiple possessions and\n\nthat the petition should therefore still be denied. We also find this argument unavailing.\n\nHahn was charged with two counts based on a single gun collection that the police\n\ndiscovered at his home on a single day. The same firearm collection was listed in the\n\n\n 14\n\findictment as support for both of the firearm counts. The Government argues that Hahn\n\nshould still be found to have separate possessions under Rentz because the guns were\n\nfound at different locations throughout his house. See United States v. Hutching, 75 F.3d\n\n1453, 1460 (10th Cir. 1996). And yet we discern no cognizable relationship among the\n\nnumber of guns, the locations of the guns, and the number of § 924(c) counts in Hahn’s\n\nthe indictment. For instance, the indictment did not charge that ten of the guns were for\n\nthe furtherance of the manufacturing charge based on one location and that eleven of the\n\nguns were for the furtherance of the place-of-manufacture charge based on another\n\nlocation. The same set of 21 guns was simply listed twice in the indictment, indicating\n\nthat the two counts were based on drug activity and a singular possession. Rentz renders\n\nthis approach impermissible. 9\n\n In conclusion, Rentz substantively changed the law of the Tenth Circuit. Because\n\nof this change, Hahn’s petition satisfies the second prong of In re Jones. Only one\n\nfirearm possession exists, and therefore—under Rentz—only one § 924(c) charge is\n\nproper here.\n\n C.\n\n Finally, our decision in In re Jones provides that Hahn can pursue § 2241 relief\n\nonly if he “cannot satisfy the gatekeeping provisions of § 2255 because the new rule is\n\n\n 9\n The Government correctly notes that the Tenth Circuit in Rentz explains that the\nexact definition of possession, carry, and use remains unsettled. However, this does not\ndiminish the Tenth Circuit’s holding in Rentz that where, as here, the Government\ncharges two § 924(c) counts for the same single carry, use, or possession, the multiple\ncharges are in error.\n\n\n 15\n\fnot one of constitutional law.” 226 F.3d at 333-34. Hahn could not successfully pursue\n\ncollateral review under § 2255 because Rentz did not rely on any rule of constitutional\n\nlaw and no new evidence was proffered. Hahn thus meets the third and final requirement\n\nof the savings clause and is entitled to relief.\n\n\n\n III.\n\n Hahn’s conviction on Count IV—the second of his § 924(c) convictions—cannot\n\nstand because it is not supported by an independent firearm possession under recent\n\nTenth Circuit precedent. We therefore reverse the district court’s decision and remand\n\nwith instructions to grant Hahn’s writ of habeas corpus and vacate his second conviction\n\nunder 18 U.S.C. § 924(c) and the associated consecutive 300-month sentence.\n\n\n\n REVERSED AND REMANDED WITH INSTRUCTIONS\n\n\n\n\n 16\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Marcus HAHN, Petitioner - Appellant, v. Warden Bonita MOSELEY, Federal Correctional Institution, Edgefield, South Carolina, Respondent - Appellee.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-07-24\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-6283\\n\\n\\nMARCUS HAHN,\\n\\n Petitioner – Appellant,\\n\\n v.\\n\\nWARDEN BONITA MOSELEY, Federal Correctional Institution, Edgefield,\\nSouth Carolina,\\n\\n Respondent – Appellee.\\n\\n\\nAppeal from the United States District Court for the District of South Carolina, at\\nBeaufort. Joseph F. Anderson, Jr., Senior District Judge. (9:16–cv–03235–JFA)\\n\\n\\nArgued: May 9, 2019 Decided: July 24, 2019\\n\\n\\nBefore GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.\\n\\n\\nReversed and remanded with instructions by published opinion. Chief Judge Gregory\\nwrote the opinion, in which Judge Wynn and Judge Thacker joined. Judge Wynn wrote a\\nconcurring opinion.\\n\\n\\nARGUED: Susan Michelle Pelletier, MUNGER, TOLLES & OLSON LLP,\\nWashington, D.C., for Appellant. John Michael Pellettieri, OFFICE OF THE UNITED\\nSTATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: Chad Golder,\\nMUNGER, TOLLES & OLSON LLP, Washington, D.C., for Appellant.\\nBrian A. Benczkowski, Assistant Attorney General, Matthew S. Miner, Deputy Assistant\\nAttorney, General, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE,\\n\\fWashington, D.C.; Sherri A. Lydon, United States Attorney, OFFICE OF THE UNITED\\nSTATES ATTORNEY, Columbia, South Carolina, for Appellee.\\n\\n\\n\\n\\n 2\\n\\fGREGORY, Chief Judge:\\n\\n Petitioner-Appellant Marcus Hahn appeals the final order of the district court\\n\\ndenying his petition for a writ of habeas corpus under 28 U.S.C. § 2241. Because Hahn’s\\n\\ncurrent sentence stems from faulty arithmetic based on a now-obsolete scheme of\\n\\nstatutory interpretation, we conclude that Hahn’s petition meets the requirements of 28\\n\\nU.S.C. § 2255(e), the savings clause. We therefore reverse the district court’s order and\\n\\nremand with instructions to grant Hahn’s writ of habeas corpus. 1\\n\\n\\n\\n\\n I.\\n\\n On December 31, 1999, law enforcement from various state and federal agencies\\n\\nexecuted a search warrant for Hahn’s home near Albuquerque, New Mexico. Hahn was\\n\\narrested after law enforcement discovered and seized marijuana plants and firearms\\n\\nduring that search. On December 7, 2000, at the conclusion of a jury trial in the United\\n\\nStates District Court for the District of New Mexico, a jury convicted Hahn of the\\n\\nfollowing four counts: (1) intentionally manufacturing 100 or more marijuana plants; 2\\n\\n(2) opening and maintaining a place for the purpose of manufacturing, distributing, and\\n\\n\\n\\n 1\\n The Government requested that this Court stay the current proceedings in\\nanticipation of the Supreme Court’s decision whether to grant certiorari in United States\\nv. Wheeler, 734 F. App’x 892 (4th Cir. 2018). The Government’s request is moot\\nbecause the Supreme Court denied certiorari in Wheeler on March 18, 2019. See United\\nStates v. Wheeler, 139 S. Ct. 1318 (2019).\\n 2\\n See 21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2.\\n\\n\\n 3\\n\\fusing marijuana; 3 (3) possessing firearms in furtherance of the intentional manufacturing\\n\\nof 100 or more marijuana plants; 4 and (4) possessing a firearm in furtherance of the\\n\\nopening and maintaining a place for the purpose of manufacturing, distributing, and using\\n\\nmarijuana. 5 Counts III and IV are based on the same gun collection, which includes 21\\n\\nfirearms.\\n\\n In 2001, the district court sentenced Hahn to 480 months’ imprisonment for these\\n\\ngun and drug offenses. He received 60 months’ imprisonment for Count I, a concurrent\\n\\n27 months for Count II, a consecutive 120 months for Count III, and a consecutive 300\\n\\nmonths for Count IV. 6\\n\\n In 2002, on direct appeal to the Tenth Circuit, Hahn challenged the legality of his\\n\\nsentence for his second firearm conviction. He contended that the district court\\n\\nimpermissibly treated his second firearm conviction as “second or subsequent” to his first\\n\\nfirearm conviction for purposes of the statute’s sentencing enhancement. Hahn I, 38 F.\\n\\nApp’x at 554. Hahn argued that the court’s approach was in error because the underlying\\n\\ndrug crimes were part of a “continuing incident” and were “coterminous in space and\\n\\ntime.” Id. The Tenth Circuit rejected this argument, relying principally on United States\\n\\n\\n 3\\n See 21 U.S.C. § 856 (a)(1), (b).\\n 4\\n See 18 U.S.C. § 924(c)(1)(A).\\n 5\\n Id.\\n 6\\n The sentencing court characterized the Count IV firearm conviction as a “second\\nor subsequent” conviction under § 924(c), for which the statute mandated a consecutive\\nsentence of twenty-five years. United States v. Hahn, 38 F. App’x 553, 554 (10th Cir.\\n2002) (“Hahn I”).\\n\\n\\n 4\\n\\fv. Sturmoski, 971 F.2d 452, 461 (10th Cir. 1992) (“[C]onsecutive sentences may be\\n\\nimposed for multiple 924(c) counts if the offenses underlying each 924(c) count do not\\n\\nconstitute a single offense for double jeopardy purposes.”). Similar to Hahn, the\\n\\ndefendant in Sturmoski appealed convictions for: (1) attempting to manufacture a\\n\\ncontrolled substance; (2) maintaining a place for manufacturing a controlled substance;\\n\\nand (3) two 18 U.S.C. § 924(c) convictions for facilitating the aforementioned drug\\n\\ncounts. Hahn I, 38 F. App’x at 555. The Sturmoski court held that “Congress intended\\n\\nmultiple convictions under 924(c), even though the counts involved ‘the same criminal\\n\\nepisode,’ because Congress intended the underlying offenses to be separate.” Id. After\\n\\nreviewing Sturmoski, the Tenth Circuit in Hahn’s case found that “[t]he only difference\\n\\nbetween the situations in Sturmoski and in this case is that one of Hahn’s 924(c)\\n\\nconvictions was for possession in furtherance of manufacture, rather than possession in\\n\\nfurtherance of attempt to manufacture.” Id. Given the factual and legal similarities\\n\\nbetween Sturmoski and Hahn’s case, the court found that “Sturmoski clearly controls the\\n\\noutcome of this case. Hahn’s conviction for maintaining a place for manufacture is\\n\\ndistinct from his manufacture conviction, and his two 924(c) convictions are also\\n\\ndistinct.” Id. The court further ruled that “even if possession of a firearm occurs in\\n\\nconnection with a single criminal episode, a second 924(c) conviction arising out of that\\n\\nepisode can constitute a ‘second or subsequent conviction’ for sentencing purposes.” Id.\\n\\nThe Tenth Circuit therefore affirmed Hahn’s convictions and sentence. Id.\\n\\n In 2004, Hahn filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or\\n\\ncorrect his sentence in the United States District Court of New Mexico. He argued that\\n\\n\\n 5\\n\\f“double jeopardy bars multiple § 924(c)(1) firearm convictions based on multiple\\n\\npredicate offenses which are factually inseparable in terms of time, space and underlying\\n\\nconduct.” United States v. Hahn, 191 F. App’x 758, 760 (10th Cir. 2006) (citation and\\n\\ninternal quotation marks omitted) (“Hahn II”). Hahn also argued that “§ 924(c)(1)\\n\\ncontains a number of ambiguities, requiring application of the rule of lenity.” Id. Hahn\\n\\nexplained that he did not previously raise these arguments because he received ineffective\\n\\nassistance of counsel. The district court dismissed the motion in 2004, concluding that\\n\\nHahn’s arguments were procedurally barred and without merit. Id.\\n\\n Hahn filed a motion for reconsideration under Federal Rule of Civil Procedure\\n\\n59(e). He disputed that his double jeopardy claim had been resolved on direct appeal and\\n\\nmoved to amend his § 2255 motion to add more evidence. Id. The district court treated\\n\\nthese motions as successive § 2255 motions and transferred them to the Tenth Circuit.\\n\\nHahn appealed this determination, and the Tenth Circuit issued a certificate of\\n\\nappealability to consider Hahn’s § 924(c)(1) arguments. The Tenth Circuit subsequently\\n\\naffirmed the dismissal and held that: (1) Hahn forfeited his double jeopardy claim and it\\n\\nwas procedurally barred because he did not raise it on direct appeal; (2) even if his double\\n\\njeopardy claim was not procedurally barred, counsel’s failure to raise it would not have\\n\\nconstituted ineffective assistance of counsel because Sturmoski controls and renders\\n\\nHahn’s double jeopardy claim meritless; and (3) as to the ambiguity argument, a motion\\n\\nto vacate could not be used, absent an intervening change in circuit law, to raise an\\n\\nargument that was resolved on direct appeal. Hahn II, 191 F. App’x at 760-61.\\n\\n\\n\\n\\n 6\\n\\f In 2015, Hahn filed a motion under Rule 60(b)(4), alleging that he was entitled to\\n\\nrelief because of an en banc Tenth Circuit decision issued after the dismissal of his\\n\\npetition. United States v. Rentz, 777 F.3d 1105 (10th Cir. 2015). Hahn argued that Rentz\\n\\naltered the substantive law in the Tenth Circuit by establishing a new statutory\\n\\nframework interpreting § 924(c). Specifically, Hahn contended that Rentz added a unit-\\n\\nof-prosecution requirement for a § 924(c) conviction and therefore entitled him to relief\\n\\ndenied under Sturmoski. Unit-of-prosecution questions ask whether the conduct at issue\\n\\n“constitutes one, or several, violations of a single statutory provision.” Callanan v.\\n\\nUnited States, 364 U.S. 587, 597 (1961). In Rentz, the Tenth Circuit addressed the issue\\n\\nof whether, as a matter of statutory construction, § 924(c) “authorizes multiple charges\\n\\nwhen everyone admits there’s only a single use, carry, or possession.” 777 F.3d at 1108.\\n\\nAfter recognizing that this question was separate from the double jeopardy inquiry, the\\n\\ncourt ruled that each § 924(c) charge “requires an independent use, carry, or possession.”\\n\\nId. at 1115. Before Rentz, when Sturmoski was controlling law, multiple charges under\\n\\n§ 924(c) were permissible as long as they did not run afoul of the Double Jeopardy\\n\\nClause. After Rentz, the Tenth Circuit, based on the language of the statute itself, held\\n\\nthat multiple charges under § 924(c) based on the same conduct were not proper even if\\n\\nthey complied with the Double Jeopardy Clause. Thus, Rentz found that it was improper\\n\\nto allow multiple charges to arise from a single possession under the language of the\\n\\nstatute. Id.\\n\\n The district court determined that Hahn’s motion should be treated as a second or\\n\\nsubsequent § 2255 motion—i.e., a motion that could not be filed without precertification\\n\\n\\n 7\\n\\fby the Court of Appeals—and transferred it to the Tenth Circuit. Hahn then filed a\\n\\nmotion to remand before the Tenth Circuit to allow the district court to consider the\\n\\nmerits of his Rule 60(b) motion or, in the alternative, for authorization to file a second or\\n\\nsuccessive § 2255 motion. The Tenth Circuit denied both the motion to remand and\\n\\nHahn’s request to file a second or successive § 2255 motion based on a procedural\\n\\nimpediment. Rentz was a Tenth Circuit decision, and thus did not meet the requirements\\n\\nfor a second or subsequent motion.\\n\\n At some point after 2015, correctional officials transferred Hahn to a facility in\\n\\nSouth Carolina, where he is currently detained. Hahn filed the instant petition under 28\\n\\nU.S.C. § 2241 in the United States District Court for the District of South Carolina.\\n\\nPursuant to § 2241, federal courts have jurisdiction over habeas corpus petitions from\\n\\nfederal inmates “in custody in violation of the Constitution or laws or treaties of the\\n\\nUnited States.” 28 U.S.C. § 2241(c)(3). Habeas petitions filed under this section must be\\n\\nfiled in the jurisdiction where the federal prisoner is detained. 28 U.S.C. § 2241(a)(c)(3).\\n\\nHahn’s appeal is properly before us because he is detained in South Carolina.\\n\\n Hahn contended that he was actually statutorily innocent of his second § 924(c)\\n\\nconviction after Rentz because the charge was procedurally improper. The magistrate\\n\\njudge issued a report that recommended denying Hahn’s petition because Hahn could not\\n\\nmeet the three-pronged test outlined in In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000).\\n\\nThat case holds that “§ 2255 is inadequate and ineffective to test the legality of a\\n\\nconviction” where:\\n\\n\\n\\n\\n 8\\n\\f (1) at the time of the conviction, settled law of this circuit or the Supreme\\n Court established the legality of the conviction; (2) subsequent to the\\n prisoner’s direct appeal and first § 2255 motion, the substantive law\\n changed such that the conduct of which the prisoner was convicted is\\n deemed not to be criminal; and (3) the prisoner cannot satisfy the\\n gatekeeping provisions of § 2255 because the new rule is not one of\\n constitutional law.\\n\\nId. Hahn objected to the magistrate’s report and recommendation, but the district court\\n\\nadopted the magistrate judge’s recommendation and denied his petition. Hahn filed a\\n\\nRule 59 motion to alter or amend the judgment. See Fed. R. Civ. P. 59(e). The district\\n\\ncourt denied the motion as without merit, and Hahn timely appealed. 7\\n\\n\\n\\n II.\\n\\n Generally, defendants who are convicted in federal court must pursue habeas relief\\n\\nfrom their convictions and sentences through the procedures set out in 28 U.S.C. § 2255.\\n\\nRice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010). Nonetheless, § 2255 includes a\\n\\n“savings clause” that preserves the availability of § 2241 relief when § 2255 proves\\n\\n“inadequate or ineffective to test the legality of a [prisoner’s] detention.” 28 U.S.C.\\n\\n§ 2255(e).\\n\\n As the district court properly recognized, in determining whether to grant habeas\\n\\nrelief under the savings clause, we consider (1) whether the conviction was proper under\\n\\nthe settled law of this circuit or Supreme Court at the time; (2) if the law of conviction\\n\\n\\n 7\\n The district court had jurisdiction over Hahn’s § 2241 petition under 28 U.S.C.\\n§ 1331. This Court has jurisdiction over this appeal under 28 U.S.C. §§ 1291(a) and\\n2253(a).\\n\\n\\n 9\\n\\fchanged after the prisoner’s direct appeal and first § 2255 motion; and (3) if the prisoner\\n\\ncannot meet the traditional § 2255 standard because the change is not one of\\n\\nconstitutional law. In re Jones, 226 F.3d at 333-34. In evaluating substantive claims\\n\\nunder the savings clause, however, we look to the substantive law of the circuit where a\\n\\ndefendant was convicted. In re Davenport, 147 F.3d 605, 611-12 (7th Cir. 1998); Eames\\n\\nv. Jones, 793 F. Supp. 2d 747, 750 (E.D.N.C. 2011). Hahn was convicted in the Tenth\\n\\nCircuit. For this reason, we apply our procedural law, but Tenth Circuit substantive law\\n\\ngoverns the petition. We review the district court’s denial of Hahn’s § 2241 petition de\\n\\nnovo. Fontanez v. O’Brien, 807 F.3d 84, 86 (4th Cir. 2015).\\n\\n A.\\n\\n The first prong of In re Jones requires that “at the time of conviction, settled law\\n\\nof the circuit or the Supreme Court established the legality of the conviction.” 226 F.3d\\n\\nat 333-34. Here, the legality of the conviction turns on whether it was proper at the time\\n\\nto charge and convict Hahn with two § 924(c) counts based on the possession of a single\\n\\ncollection of firearms in both: (1) furtherance of intentionally manufacturing 100 or\\n\\nmore marijuana plants and (2) the opening and maintaining of a place for the purpose of\\n\\nmanufacturing, distributing, and using marijuana.\\n\\n There are two legal principles that may limit the Government’s power to pursue\\n\\nmultiple charges for the same underlying conduct in this case: (1) the statute’s unit of\\n\\nprosecution and (2) the Double Jeopardy Clause. At the time of Hahn’s conviction,\\n\\nTenth Circuit law held that the only requirement for charging multiple § 924(c)(1)(A)\\n\\ncounts based on a single criminal event was that the crimes of violence or drug\\n\\n\\n 10\\n\\ftrafficking crimes underlying each count be separate to avoid violations of the Double\\n\\nJeopardy Clause. 8 See Blockburger v. United States, 284 U.S. 299, 304 (1932)\\n\\n(explaining that the Double Jeopardy Clause prohibits punishing a defendant for the same\\n\\nconduct under two distinct statutory provisions unless “each provision requires proof of a\\n\\nfact which the other does not”). Sturmoski did not address any concerns regarding the\\n\\nstatutory unit of prosecution.\\n\\n In Sturmoski, the Tenth Circuit rejected the defendant’s argument that multiple\\n\\n§ 924(c) convictions for the same underlying conduct were impermissible, reasoning that\\n\\n“separate convictions can arise from essentially identical facts” if the convictions do not\\n\\nviolate double jeopardy. 971 F.2d at 461. Sturmoski was the governing law at the time\\n\\nHahn was charged and convicted. It follows, then, that at the time of conviction the\\n\\nsettled law of the Tenth Circuit established the legality of Hahn’s two convictions\\n\\npursuant to the same conduct under § 924(c). Hahn thus meets the first requirement of\\n\\nour savings clause inquiry.\\n\\n B.\\n\\n Our decision in In re Jones next requires that we ask whether “subsequent to the\\n\\nprisoner’s direct appeal and first § 2255 motion, the substantive law changed such that\\n\\nthe conduct of which the prisoner was convicted is deemed not to be criminal.” 226 F.3d\\n\\nat 333-34. Hahn argues that the Tenth Circuit’s 2015 decision in Rentz renders non-\\n\\ncriminal the conduct on which his second § 924(c) conviction was based. We must\\n\\n 8\\n The Tenth Circuit did not rely upon a separate unit-of-prosecution analysis when\\ndetermining the propriety of multiple charges or counts.\\n\\n\\n 11\\n\\ftherefore determine whether the rule announced in Rentz establishes that the conduct\\n\\nunderlying Hahn’s second firearm conviction is no longer criminal. We hold that it does.\\n\\n In 2013, a panel of the Tenth Circuit heard United States v. Rentz, a case in which\\n\\na defendant’s single use of a firearm, resulting in one gun shot, led to convictions for two\\n\\ncrimes: assault and murder. 735 F.3d 1245, 1247 (10th Cir. 2013). The grand jury\\n\\nindicted the defendant on two counts of use of a firearm in furtherance of a crime of\\n\\nviolence, one for the assault and one for the murder. Id. The defendant moved to dismiss\\n\\nthe second firearm count, arguing that: (1) Congress did not intend to punish a person for\\n\\ntwo violations of § 924(c) based on a single use of a firearm and (2) punishment on both\\n\\nfirearm counts would violate the Double Jeopardy Clause. Id. The district court agreed\\n\\nand granted the defendant’s motion. Id.\\n\\n On appeal, the Tenth Circuit reversed. Id. at 1254. The panel, relying on\\n\\nSturmoski, “held that the proper ‘unit of prosecution’ under § 924(c) is a single\\n\\nunderlying offense—meaning that two convictions under § 924(c) arising from the same\\n\\ncourse of conduct were proper under the language of § 924(c).” Id. at 1250.\\n\\n The Tenth Circuit later granted rehearing en banc to decide the unit of prosecution\\n\\nissue that led to the reversal of the district court’s decision. See Rentz, 777 F.3d at 1117.\\n\\nThe Tenth Circuit explained that the question presented was whether, as a “matter of\\n\\nstatutory interpretation, § 924(c)(1)(A) authorizes multiple charges when everyone\\n\\nadmits there’s only a single use, carry, or possession.” Id. at 1108. The court held that\\n\\nthe Government must prove a separate use, carry, or possession for each § 924(c) charge\\n\\n\\n\\n\\n 12\\n\\fit brings. Id. at 1109. The court thus vacated the panel opinion relying on Sturmoski and\\n\\naffirmed the district court’s decision. Id. at 1115.\\n\\n Hahn argues that the en banc decision in Rentz constitutes a substantial change in\\n\\nthe law because it introduces a new statutory framework that was not present in\\n\\nSturmoski. We agree. Under Sturmoski, whether or not conduct could lead to multiple\\n\\ncharges under § 924(c) in the Tenth Circuit depended solely on whether the charge\\n\\nviolated the Double Jeopardy Clause. Now under Rentz, it is not enough that the multiple\\n\\ncharges pass muster under the Double Jeopardy Clause. Rather, multiple charges must\\n\\nalso comply with a unit-of-prosecution statutory analysis that examines how many\\n\\ndistinct instances of conduct exist. When the charges or counts exceed the number of\\n\\nacts, those extra charges or counts cannot form the basis of additional criminal liability.\\n\\nIn sum, Rentz constitutes a substantive change in the law that renders Hahn’s firearm\\n\\npossession no longer sufficient to support two § 924(c) convictions.\\n\\n The Government advances several arguments to the contrary, none of which we\\n\\nfind persuasive. Relying on Schlup v. Delo, 513 U.S. 298 (1995), the Government\\n\\nattempts to import a procedural gateway actual innocence analysis into the adjudication\\n\\nof Hahn’s petition. The Government argues that Hahn must demonstrate actual\\n\\ninnocence: that he did not commit the underlying conduct, i.e., possession of the\\n\\nfirearms, in order to warrant relief under the savings clause. The Government asks us to\\n\\nutilize an analysis that requires a petitioner “to support his allegations of constitutional\\n\\nerror with new reliable evidence.” Schlup, 513 U.S. at 324. This argument fails because\\n\\nthe Fourth Circuit does not require an actual innocence analysis under the savings clause\\n\\n\\n 13\\n\\fand adopting the Government’s position would be contrary to the settled and established\\n\\nlaw of this Circuit. 226 F.3d at 333-34. The test in In re Jones functions as a gateway to\\n\\nrelief without interrogating the factual issues of whether the underlying criminal activity\\n\\noccurred. In Re Jones assumes that the factual record is settled but requires this Court to\\n\\ncompare prior and current precedent to evaluate whether a substantive change in the law\\n\\nhas occurred. A petitioner satisfies this standard if the substantive change in the law\\n\\nmakes previously illegal conduct no longer a source of criminal liability. In other words,\\n\\nour analysis is tethered to a change in the law, not a change in the factual underpinnings\\n\\nor evidence of a criminal record. If this substantive change in the law occurs after the\\n\\nprisoner’s direct appeal and first § 2255 motion, he satisfies the second requirement of\\n\\nthe In re Jones standard. This is the standard that we use to ascertain a prisoner’s\\n\\nentitlement to relief under the savings clause.\\n\\n Moreover, the Government argues that Rentz does not control because there are\\n\\nfactual differences between Sturmoski and Rentz that make them distinguishable.\\n\\nHowever, Rentz outlines a new statutory scheme of interpretation that is not a fact-\\n\\ndependent inquiry. Indeed, Rentz now defines and requires a unit-of-prosecution analysis\\n\\nin criminal matters implicating § 924(c). The newly required analysis applies to any\\n\\n§ 924(c) charge regardless of the particular facts of the case.\\n\\n The Government further argues that Hahn’s case involves multiple possessions and\\n\\nthat the petition should therefore still be denied. We also find this argument unavailing.\\n\\nHahn was charged with two counts based on a single gun collection that the police\\n\\ndiscovered at his home on a single day. The same firearm collection was listed in the\\n\\n\\n 14\\n\\findictment as support for both of the firearm counts. The Government argues that Hahn\\n\\nshould still be found to have separate possessions under Rentz because the guns were\\n\\nfound at different locations throughout his house. See United States v. Hutching, 75 F.3d\\n\\n1453, 1460 (10th Cir. 1996). And yet we discern no cognizable relationship among the\\n\\nnumber of guns, the locations of the guns, and the number of § 924(c) counts in Hahn’s\\n\\nthe indictment. For instance, the indictment did not charge that ten of the guns were for\\n\\nthe furtherance of the manufacturing charge based on one location and that eleven of the\\n\\nguns were for the furtherance of the place-of-manufacture charge based on another\\n\\nlocation. The same set of 21 guns was simply listed twice in the indictment, indicating\\n\\nthat the two counts were based on drug activity and a singular possession. Rentz renders\\n\\nthis approach impermissible. 9\\n\\n In conclusion, Rentz substantively changed the law of the Tenth Circuit. Because\\n\\nof this change, Hahn’s petition satisfies the second prong of In re Jones. Only one\\n\\nfirearm possession exists, and therefore—under Rentz—only one § 924(c) charge is\\n\\nproper here.\\n\\n C.\\n\\n Finally, our decision in In re Jones provides that Hahn can pursue § 2241 relief\\n\\nonly if he “cannot satisfy the gatekeeping provisions of § 2255 because the new rule is\\n\\n\\n 9\\n The Government correctly notes that the Tenth Circuit in Rentz explains that the\\nexact definition of possession, carry, and use remains unsettled. However, this does not\\ndiminish the Tenth Circuit’s holding in Rentz that where, as here, the Government\\ncharges two § 924(c) counts for the same single carry, use, or possession, the multiple\\ncharges are in error.\\n\\n\\n 15\\n\\fnot one of constitutional law.” 226 F.3d at 333-34. Hahn could not successfully pursue\\n\\ncollateral review under § 2255 because Rentz did not rely on any rule of constitutional\\n\\nlaw and no new evidence was proffered. Hahn thus meets the third and final requirement\\n\\nof the savings clause and is entitled to relief.\\n\\n\\n\\n III.\\n\\n Hahn’s conviction on Count IV—the second of his § 924(c) convictions—cannot\\n\\nstand because it is not supported by an independent firearm possession under recent\\n\\nTenth Circuit precedent. We therefore reverse the district court’s decision and remand\\n\\nwith instructions to grant Hahn’s writ of habeas corpus and vacate his second conviction\\n\\nunder 18 U.S.C. § 924(c) and the associated consecutive 300-month sentence.\\n\\n\\n\\n REVERSED AND REMANDED WITH INSTRUCTIONS\\n\\n\\n\\n\\n 16\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2957,"cells":{"id":{"kind":"number","value":4642457,"string":"4,642,457"},"name":{"kind":"string","value":"LIFE TECHNOLOGIES CORPORATION, a Delaware Corporation, Plaintiff - Appellee, v. Krishnamurthy GOVINDARAJ, Former President, Life Technologies Corporation, a Maryland Corporation, Party-In-Interest - Appellant, and Life Technologies Corporation, Montgomery County, Maryland, Defendant."},"name_abbreviation":{"kind":"string","value":"Life Technologies Corporation v. Krishnamurthy Govindaraj"},"decision_date":{"kind":"string","value":"2019-07-24"},"docket_number":{"kind":"string","value":"16-1703"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Agee, Keenan, Quattlebaum\", \"parties\": \"\", \"opinions\": [{\"author\": \"BARBARA MILANO KEENAN, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 16-1703\\n\\n\\nLIFE TECHNOLOGIES CORPORATION, A DELAWARE CORPORATION,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nKRISHNAMURTHY GOVINDARAJ, Former President, Life Technologies\\nCorporation, a Maryland Corporation,\\n\\n Party-in-Interest - Appellant,\\n\\n and\\n\\nLIFE TECHNOLOGIES CORPORATION, Montgomery County, Maryland,\\n\\n Defendant.\\n\\n\\nAppeal from the United States District Court for the District of Maryland, at Greenbelt.\\nRoger W. Titus, Senior District Judge. (8:10-cv-03527-RWT)\\n\\n\\nArgued: March 21, 2019 Decided: July 24, 2019\\n\\n\\nBefore AGEE, KEENAN, and QUATTLEBAUM, Circuit Judges.\\n\\n\\nAffirmed in part, vacated in part, and remanded by published opinion. Judge Keenan\\nwrote the opinion, in which Judge Agee and Judge Quattlebaum joined.\\n\\n\\nARGUED: Michael R. Williams, BUSH SEYFERTH & PAIGE PLLC, Kalamazoo,\\nMichigan, for Appellant. Meghan Katherine Canty, THEODORA ORINGHER PC,\\n\\fCosta Mesa, California, for Appellee. ON BRIEF: Brittney D. Kohn, BUSH\\nSEYFERTH & PAIGE PLLC, Troy, Michigan, for Appellant. Matthew D. Murphey,\\nTHEODORA ORINGHER PC, Costa Mesa, California, for Appellee.\\n\\n\\n\\n\\n 2\\n\\fBARBARA MILANO KEENAN, Circuit Judge:\\n\\n The plaintiff in this case, Life Technologies Corp., filed a complaint against\\n\\nanother corporation of the same name (the defendant corporation, or the defendant),\\n\\nalleging trademark infringement and unfair competition under the Lanham Act, 15 U.S.C.\\n\\n§ 1125(a)(1)(A). The plaintiff obtained an injunction against the defendant corporation\\n\\nand its officers, including the corporation’s president, Dr. Krishnamurthy Govindaraj,\\n\\nwho was not named as a defendant. 1 After entry of default judgment against the\\n\\ncorporation and years of damages-related discovery, the district court awarded more than\\n\\n$1.7 million in damages, as well as more than $555,000 in attorneys’ fees, against both\\n\\nthe defendant corporation and Govindaraj personally. In holding Govindaraj personally\\n\\nliable for the money judgment despite his status as a non-party, the district court\\n\\nemphasized Govindaraj’s position as an officer of the defendant corporation and his\\n\\ncontinuing attempts to obstruct the litigation “in defiance of orders of [the] court.”\\n\\n Upon our review, we conclude that the district court erred in entering judgment\\n\\nagainst Govindaraj personally when he was not named as a party or otherwise brought\\n\\ninto the case by service of process. We additionally hold that the court did not abuse its\\n\\ndiscretion in finding Govindaraj in contempt of court. We therefore affirm in part, and\\n\\nvacate in part, the district court’s judgment. We remand the case for the court to\\n\\ndetermine whether any of the damages and fees award entered against Govindaraj is\\n\\nattributable to his contempt of court.\\n\\n 1\\n Govindaraj does not appeal the district court’s order entering an injunction\\nagainst him as an officer of the defendant corporation.\\n\\n 3\\n\\f I.\\n\\n In December 2010, plaintiff Life Technologies Corp., a Delaware corporation,\\n\\nfiled a two-count complaint against the defendant, Life Technologies Corp., a Maryland\\n\\ncorporation, alleging that the defendant corporation was infringing on the plaintiff’s\\n\\nregistered trademark, “Life Technologies.” Among other things, the plaintiff alleged that\\n\\nthe defendant corporation, plaintiff’s competitor in the field of scientific products and\\n\\nservices, improperly was using the “Life Technologies” mark as part of various internet\\n\\ndomain names to market the defendant’s goods and services.\\n\\n The plaintiff sought declaratory and injunctive relief, as well as treble damages\\n\\nunder the Lanham Act, 15 U.S.C. § 1125(a)(1)(A). It is undisputed that the plaintiff did\\n\\nnot name Govindaraj as a defendant, and did not refer to him in any allegations of the\\n\\ncomplaint. 2\\n\\n In March 2012, the district court entered default judgment against the defendant\\n\\ncorporation. The court additionally held that Govindaraj had acted in bad faith during the\\n\\nlitigation, observing that his statements on behalf of the defendant corporation were\\n\\n“laughably incorrect” and “absurd.” The court entered an order enjoining the defendant\\n\\ncorporation, and Govindaraj and his wife as corporate officers, from engaging in further\\n\\nactivity infringing on the plaintiff’s registered trademark. The court also held that based\\n\\n\\n 2\\n In addition to the defendant corporation, the complaint also listed five “Doe”\\ndefendants. The plaintiff never sought to substitute specified individuals for these Doe\\ndefendants, who were not referenced later in the litigation.\\n\\n 4\\n\\fon the defendant’s willful conduct, the case was “exceptional,” entitling the plaintiff to\\n\\npayment of its costs and attorneys’ fees. The court directed that the plaintiff be awarded\\n\\ndamages from the defendant corporation, including treble damages, in an amount to be\\n\\ndetermined following additional discovery in the case. 3\\n\\n Around the same time, Govindaraj dissolved the defendant corporation without\\n\\nnotice to the corporation’s creditors. In the months that followed, Govindaraj violated\\n\\nthe court’s injunction and continually attempted to obstruct the discovery process related\\n\\nto determining a damages award. Among other things, in violation of the discovery\\n\\nproceedings, Govindaraj transferred some internet domain names to foreign entities,\\n\\nmade repeated false claims regarding the company’s finances, and refused to produce\\n\\nvarious documents.\\n\\n In November 2012, the district court issued an order directing Govindaraj to show\\n\\ncause why he should not be held in contempt of court for violating the court’s injunction.\\n\\nAt a show cause hearing held the next month, Govindaraj, represented by counsel, made\\n\\nhis first formal appearance in the case as an interested party. After Govindaraj testified at\\n\\nthe hearing, the district court sua sponte raised the question whether damages could be\\n\\nawarded against Govindaraj personally. When Govindaraj’s counsel inquired whether\\n\\nthe court might pierce the corporate veil, the court responded that piercing the corporate\\n\\nveil “may be what’s necessary to effectuate the court’s judgment.” At that time, the court\\n\\n 3\\n In October 2012, the district court awarded over $240,000 in attorneys’ fees and\\ncosts against the defendant corporation for work performed by the plaintiff’s counsel\\nbefore entry of default judgment on the merits of the case. That award was entered only\\nagainst the defendant corporation and is not at issue in this appeal.\\n\\n 5\\n\\fheld Govindaraj in contempt for violating the injunction order, but “with[e]ld the\\n\\njudgment as to the sanction to impose.”\\n\\n Govindaraj continued his obstructionist conduct during more than three additional\\n\\nyears of discovery related to damages sustained by the plaintiff. In September 2014, the\\n\\ncourt again held Govindaraj in contempt for refusing to authorize the plaintiff access to\\n\\ncertain email accounts as required by a prior court order. The court delayed imposition of\\n\\nsanctions until the court made a final determination regarding damages.\\n\\n In late 2015, the plaintiff filed motions seeking damages for trademark\\n\\ninfringement and for attorneys’ fees, asking the court to hold Govindaraj and his wife\\n\\njointly and severally liable for those damages and fees along with the defendant\\n\\ncorporation. During a hearing on the motions, the plaintiff asserted that although\\n\\nGovindaraj and his wife had not been named as defendants in the action, they were\\n\\npersonally responsible as officers of the corporation for the defendant’s acts of\\n\\ninfringement and, thus, could be held personally liable for an award of damages and\\n\\nattorneys’ fees.\\n\\n The district court found that Govindaraj was “clearly . . . the mastermind of th[e]\\n\\ncorporate entity,” had “fully participated in and fully understood what was going on” in\\n\\nthe litigation, and had “attempted to thwart [the litigation] over and over again.” Based\\n\\non Govindaraj’s actions “in defiance of orders of [the] court,” the district court imposed\\n\\nan award of damages and attorneys’ fees against Govindaraj personally. The plaintiff did\\n\\nnot argue, and the court did not find, that piercing the corporate veil of the defendant\\n\\ncorporation was warranted or that Govindaraj was an “alter ego” of that corporation.\\n\\n 6\\n\\fThe court later entered an order holding Govindaraj and the defendant corporation jointly\\n\\nand severally liable for payment of treble damages in the total amount of $1,712,936.49. 4\\n\\nThe court also awarded over $555,000 in attorneys’ fees and costs against both\\n\\nGovindaraj and the defendant corporation. Govindaraj now appeals. 5\\n\\n\\n\\n II.\\n\\n Govindaraj argues that the district court violated his due process rights in entering\\n\\na judgment against him for damages and attorneys’ fees when he was not named as a\\n\\ndefendant in the action. He contends that because he was not a party in the case, he was\\n\\nunable to defend himself against individual liability as a corporate officer or as a putative\\n\\nalter ego of the defendant corporation.\\n\\n In response, the plaintiff argues that Govindaraj was subject to personal liability,\\n\\nbecause he was directly responsible for the acts of trademark infringement committed by\\n\\nthe defendant corporation. Additionally, the plaintiff asserts that Govindaraj was the alter\\n\\nego of the defendant corporation, was on notice of the plaintiff’s allegations, and\\n\\nparticipated fully throughout the district court proceedings. Thus, the plaintiff submits\\n\\nthat it was not required to name Govindaraj as a party given his well-known role in the\\n\\nactivities of the defendant corporation. We disagree with the plaintiff’s arguments.\\n\\n\\n\\n 4\\n The court denied the plaintiff’s request to hold Govindaraj’s wife personally\\nliable for payment of the judgment awarding damages and attorneys’ fees to the plaintiff.\\n 5\\n The defendant corporation does not appeal the judgment entered against it.\\n\\n 7\\n\\f We review de novo the question of law whether the district court erred in entering\\n\\njudgment against a non-party to the litigation. See Sky Cable, LLC v. DIRECTV, Inc.,\\n\\n886 F.3d 375, 391 (4th Cir. 2018); Wright v. North Carolina, 787 F.3d 256, 261 (4th Cir.\\n\\n2015). Under well-established principles of due process, a person is not subject to a\\n\\njudgment entered in litigation in which he has not been named as a party or been “made a\\n\\nparty by service of process.” Ortiz v. Fibreboard Corp., 527 U.S. 815, 846 (1999)\\n\\n(citation omitted); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110-12\\n\\n(1969). “[O]ne becomes a party officially, and is required to take action in that capacity,\\n\\nonly upon service of a summons or other authority-asserting measure stating the time\\n\\nwithin which the party served must appear and defend.” Murphy Bros., Inc. v. Michetti\\n\\nPipe Stringing, Inc., 526 U.S. 344, 350 (1999). Such service of process is fundamental to\\n\\nthe imposition of any procedural restraint on a named defendant, and enables the court to\\n\\nexercise personal jurisdiction over him. Id.; United States v. Perez, 752 F.3d 398, 406\\n\\n(4th Cir. 2014) (citing Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104\\n\\n(1987)). By precluding entry of judgment against a non-party to a case, these due process\\n\\nprinciples ensure that a court does not “adjudicate a personal claim or obligation unless\\n\\n[the court] has jurisdiction over the person of the defendant.” Zenith Radio, 395 U.S. at\\n\\n110.\\n\\n Due process also requires that a defendant “be given an opportunity to respond\\n\\nand contest his personal liability . . . after he [is] made a party and before the entry of\\n\\njudgment against him.” Nelson v. Adams, USA, Inc., 529 U.S. 460, 463 (2000). Thus,\\n\\nfundamental to the protection of due process is “an opportunity to be heard . . . at a\\n\\n 8\\n\\fmeaningful time.” Sciolino v. City of Newport News, 480 F.3d 642, 653 (4th Cir. 2007)\\n\\n(citation and internal quotation marks omitted) (emphasis added). A person must have a\\n\\n“fair chance” to respond to allegations made against him, and that opportunity must be\\n\\nprovided in a “reliable and orderly” fashion. Nelson, 529 U.S. at 467. These concerns\\n\\nare reflected in the Federal Rules of Civil Procedure, which require identification of the\\n\\ndefendants in a complaint, service of process, and compliance with rules for amending a\\n\\ncomplaint to add new defendants. See Fed. R. Civ. P. 4, 15, 17; Nelson, 529 U.S. at 465\\n\\n(“The Federal Rules of Civil Procedure are designed to further the due process of law that\\n\\nthe Constitution guarantees.”).\\n\\n In light of these due process limitations, a judgment entered against a corporation\\n\\nthat is determined to be the alter ego of a non-party establishes personal liability of the\\n\\nnon-party only if the non-party is notified that such liability may be imposed and is given\\n\\nfair opportunity to defend the action resulting in the judgment. Restatement (Second) of\\n\\nJudgments § 59(5) (Am. Law Inst. 1982); see generally Sky Cable, 886 F.3d at 391-92.\\n\\nWhen these strict conditions are met, the non-party alter ego is properly before the court\\n\\nand due process concerns are satisfied, because the non-party was served through service\\n\\non its alter ego, was given adequate notice of its potential exposure, and has had the\\n\\nopportunity to defend against personal liability.\\n\\n Here, it is undisputed that Govindaraj was not named as a party in the case, and he\\n\\nwas not personally served with process. Indeed, Govindaraj’s name does not appear\\n\\nanywhere in the complaint, and the plaintiff never sought to amend the complaint to add\\n\\nhim as a defendant in the case. And, contrary to the plaintiff’s argument on appeal, the\\n\\n 9\\n\\fdistrict court’s sua sponte observation in December 2012 that veil piercing might be\\n\\nappropriate was merely a suggestion, and nothing more. The plaintiff did not take any\\n\\naction based on the court’s comment, which, standing alone, did not notify Govindaraj\\n\\nthat he needed “to respond and be heard” in a “reliable and orderly course” before\\n\\njudgment could be entered against him. Nelson, 529 U.S. at 466-67.\\n\\n We reject the plaintiff’s attempt on appeal to cure its procedural missteps by\\n\\nbelatedly raising an alter ego theory of liability to preserve a judgment obtained against a\\n\\nnon-party. As a result of the plaintiff’s failure to advance such an alter ego theory in the\\n\\ndistrict court, the present record does not contain any factual findings resolving that issue,\\n\\nand the district court was not asked to pierce the corporate veil. Regardless whether the\\n\\nfacts in the record theoretically could have supported such findings, we will not hold a\\n\\nnon-party personally liable for a monetary judgment when the non-party did not receive\\n\\nthe procedural protections of notice and an opportunity to be heard to which every\\n\\ndefendant is entitled.\\n\\n Our conclusion is not altered by the plaintiff’s reliance on our decision in Sky\\n\\nCable, 886 F.3d 375. There, the plaintiff asked the district court to “reverse pierce” the\\n\\ncorporate veil 6 of a limited liability company (LLC) in which the individual defendant\\n\\nwas the sole member in order to execute a judgment already entered against the\\n\\n 6\\n “[R]everse veil piercing attaches liability to the entity for a judgment against the\\nindividuals who hold an ownership interest in that entity.” Sky Cable, 886 F.3d at 385.\\nIn contrast, “traditional” veil piercing “permits a court to render an individual liable in a\\njudgment against a business entity in which the individual has an interest, when the entity\\nis in fact a mere instrumentality or alter ego of the individual.” Id. (citation, internal\\nquotation marks, and brackets omitted).\\n\\n 10\\n\\findividual. Id. at 381. The district court ruled on that question in the plaintiff’s favor.\\n\\nId. Such “outsider” reverse piercing permitted the judgment creditor to reach the LLC to\\n\\nsatisfy the individual’s debt only after the LLC was determined to be an alter ego, and,\\n\\nthus, identical to its member as “the sole party in [the] particular transaction.” Id. at 389\\n\\n(quoting Pauley Petroleum, Inc. v. Cont’l Oil Co., 239 A.2d 629, 633 (Del. 1968)).\\n\\n Based on these facts, we held that “an LLC that is the alter ego of its sole member\\n\\nis properly before the court when the court has jurisdiction over that member.” Id. at\\n\\n392. Underlying that conclusion was the district court’s determination that the defendant\\n\\nwas using the LLC for the improper purpose of hiding his assets. Id. at 389-91; see also\\n\\nSky Cable LLC v. Coley, No. 5:11cv48, 2016 WL 3926492, at *18 (W.D. Va. July 18,\\n\\n2016). By virtue of the plaintiff’s motion to reverse pierce the corporate veil, the non-\\n\\nparty LLC was on notice that the plaintiff sought to execute the judgment entered against\\n\\nthe individual member by reaching the assets of the alter ego company. Sky Cable, 886\\n\\nF.3d at 383, 392. And after receiving such notice, the LLC, through its sole member,\\n\\nargued in the district court that an alter ego finding was inappropriate. Id. at 389-91; see\\n\\ngenerally Sky Cable, 2016 WL 3926492.\\n\\n Here, however, Govindaraj was not notified at any point during the litigation in\\n\\nthe district court that the plaintiff was seeking to impose liability on him personally, or to\\n\\ncollect a money judgment from him under a theory that he was the alter ego of the\\n\\ndefendant corporation. Thus, Govindaraj did not have an opportunity to defend against\\n\\npersonal liability with the array of defenses and procedures afforded to parties in\\n\\naccordance with their due process rights.\\n\\n 11\\n\\f We likewise find no merit in the plaintiff’s argument that Govindaraj should be\\n\\nheld personally liable for the damages and fees award as an officer of the defendant\\n\\ncorporation based on his underlying acts of infringement. Although an officer of a\\n\\ncorporation can be held personally liable for his own conduct in infringing on another’s\\n\\ntrademark, see Polo Fashions, Inc. v. Craftex, Inc., 816 F.2d 145 (4th Cir. 1987), such a\\n\\nsubstantive claim of liability first must be pleaded in a complaint against the individual\\n\\nalleged wrongdoer. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (plaintiff must\\n\\n“plead[] factual content that allows the court to draw the reasonable inference that the\\n\\ndefendant is liable for the misconduct alleged” (emphasis added)); Stevenson v. City of\\n\\nSeat Pleasant, 743 F.3d 411, 420 (4th Cir. 2014) (“[I]t is the complaint . . . that provides\\n\\nfair notice to defendants of the allegations against them.” (internal quotation marks\\n\\nomitted)); cf. Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527, 543-49 (4th Cir. 2013)\\n\\n(evaluating alter ego allegations set forth in complaint under Federal Rule of Civil\\n\\nProcedure 12(b)(6)); Polo Fashions, 816 F.2d at 147 (noting that officer was named as a\\n\\ndefendant). The fact that the plaintiff might have prevailed had it chosen to bring a claim\\n\\nagainst Govindaraj personally, based on this or any other legal theory, did not relieve the\\n\\nplaintiff from complying with the basic requirements of due process. See Nelson, 529\\n\\nU.S. at 471 (“The law, at its most fundamental, does not render judgment simply because\\n\\na person might have been found liable had he been charged.” (citation omitted)).\\n\\n In fashioning the monetary relief in this case, the district court reasoned that\\n\\nGovindaraj’s egregious litigation conduct warranted the imposition of personal liability.\\n\\nWhile the district court’s frustration with Govindaraj’s years-long obstructionist behavior\\n\\n 12\\n\\fwas understandable, that behavior was not a valid basis for subjecting him to personal\\n\\nliability without satisfying due process requirements. Instead, such abusive litigation\\n\\npractices should be addressed through sanctions and the court’s contempt power. See\\n\\nFed. R. Civ. P. 37 (discussing availability of sanctions for “failure to make disclosures or\\n\\nto cooperate in discovery”); see generally Chambers v. NASCO, Inc., 501 U.S. 32 (1991)\\n\\n(discussing courts’ inherent contempt power that “extends to a full range of litigation\\n\\nabuses”). 7\\n\\n\\n\\n III.\\n\\n Govindaraj next challenges the district court’s order holding him in contempt of\\n\\ncourt. The district court based its contempt finding on Govindaraj’s failure to comply\\n\\nwith a January 2014 discovery order requiring him to sign release forms authorizing\\n\\naccess to his email accounts. In Govindaraj’s view, the discovery order was\\n\\n“insufficiently definite,” because the order did not specify the actual email accounts to\\n\\nwhich the order applied.\\n\\n We review for abuse of discretion the district court’s decision holding Govindaraj\\n\\nin contempt of court. Rainbow Sch., Inc. v. Rainbow Early Educ. Holding LLC, 887 F.3d\\n\\n610, 617 (4th Cir. 2018). Federal courts have the inherent power to order sanctions “to\\n\\npreserve the integrity of the judicial process” and to punish bad-faith conduct intended to\\n\\n 7\\n Based on our conclusion that the damages and fees award erroneously was\\nentered against Govindaraj personally, we do not reach his alternative argument that the\\ndistrict court erred in its calculation of the amount of reasonable attorneys’ fees under\\nRobinson v. Equifax Information Services, LLC, 560 F.3d 235 (4th Cir. 2009).\\n\\n 13\\n\\fdelay or disrupt the course of litigation or to impede enforcement of a court order. In re\\n\\nJemsek Clinic, P.A., 850 F.3d 150, 157 (4th Cir. 2017) (quoting Chambers, 501 U.S. at\\n\\n46). Under the Federal Rules of Civil Procedure, 8 a court may “treat[] as contempt of\\n\\ncourt the failure to obey” a court order by an officer or director of a party. 9 Fed. R. Civ.\\n\\nP. 37(b)(2)(A)(vii).\\n\\n A court’s contempt power, which reflects the court’s broad authority, cannot be\\n\\nexercised when there is “fair ground of doubt as to the wrongfulness of” the conduct in\\n\\nquestion. Taggart v. Lorenzen, 139 S. Ct. 1795, 1801 (2019) (citation and emphasis\\n\\nomitted); see also Gascho v. Glob. Fitness Holdings, LLC, 875 F.3d 795, 800 (6th Cir.\\n\\n2017) (contempt finding unwarranted if court’s decree was “too vague to be understood”\\n\\n(quoting Int’l Longshoremen’s Ass’n v. Phila. Marine Trade Ass’n, 389 U.S. 64, 76\\n\\n(1967))). Thus, a party must be able to discern from the language of a court’s order the\\n\\nactions necessary to comply with the court’s directive. See Taggart, 139 S. Ct. at 1802\\n\\n(“[P]rinciples of basic fairness require that those enjoined receive explicit notice of what\\n\\nconduct is outlawed before being held in civil contempt.” (citations, quotation marks, and\\n\\nbrackets omitted)); Gascho, 875 F.3d at 800 (contempt sanctions are “reserved for those\\n\\nwho fully understand the meaning of a court order and yet choose to ignore its mandate”\\n\\n\\n\\n\\n 8\\n The district court did not specify whether it imposed sanctions against\\nGovindaraj under the Federal Rules or under the court’s inherent contempt power.\\n 9\\n Govindaraj does not contest the court’s authority to impose sanctions on him as a\\nnon-party.\\n\\n 14\\n\\f(quoting Phila. Marine Trade Assoc., 389 U.S. at 76) (internal quotation marks and\\n\\nalterations omitted)).\\n\\n In the present case, the history of the discovery issues leading to the district\\n\\ncourt’s contempt finding are particularly revealing. After Govindaraj refused for months\\n\\nto comply with the plaintiff’s discovery requests, the magistrate judge ordered\\n\\nGovindaraj in October 2013 to “compile a list of all e-mail addresses he is currently\\n\\nusing and/or previously used. [Govindaraj] must affirm the list of e-mail addresses is the\\n\\nfull, correct and absolute list of all e-mail addresses he presently or previously used”\\n\\n(emphasis in original). In response to the magistrate judge’s order, Govindaraj provided\\n\\nonly four email addresses. However, the plaintiff independently discovered about two\\n\\ndozen email addresses under Govindaraj’s control.\\n\\n Three months later, in January 2014, after Govindaraj failed to provide the\\n\\nplaintiff with emails from all these accounts during discovery, the magistrate judge held a\\n\\ntelephone conference with the plaintiff’s representatives and Govindaraj. Following the\\n\\nconference, the magistrate judge issued the order Govindaraj now challenges (the\\n\\nchallenged order):\\n\\n [F]or the reasons stated during the telephone conference, [Govindaraj] is\\n hereby ORDERED to sign and execute “consent and release forms”\\n regarding various e-mail accounts within ten (10) days of Plaintiff’s\\n counsel providing the forms to [Govindaraj’s] counsel[.]\\n\\nGovindaraj filed objections to the magistrate judge’s order, which objections the district\\n\\ncourt overruled. Govindaraj nevertheless continued to refuse to sign the consent forms\\n\\nproduced by the plaintiff’s counsel. Based on this refusal, and after reviewing the\\n\\n\\n 15\\n\\fproposed consent forms, the district court held Govindaraj in contempt for failing to\\n\\ncomply with the challenged order. The court did not immediately impose sanctions for\\n\\nthe violation.\\n\\n Upon consideration of the challenged order, we conclude that its terms were not\\n\\nvague, and that the district court did not abuse its discretion in finding Govindaraj in\\n\\ncontempt of court. By the time that the magistrate judge entered the challenged order,\\n\\nGovindaraj was well aware that the court expected him to provide the plaintiff access to\\n\\n“all” the email accounts the court earlier had required him to identify. Although\\n\\nGovindaraj disagrees with the reasonableness of this requirement, that disagreement has\\n\\nno bearing on the question whether the terms of the challenged order adequately notified\\n\\nhim of the obligations imposed by the court. And given Govindaraj’s repeated disregard\\n\\nfor the discovery process, his assertion on appeal that his “actions bespeak good faith”\\n\\nlacks any basis in the record. See Taggart, 139 S. Ct. at 1802 (explaining that a\\n\\ncontemnor’s bad faith can justify imposition of sanctions).\\n\\n We therefore affirm the district court’s judgment holding Govindaraj in contempt\\n\\nfor violating the challenged order. However, the court did not specify whether any of the\\n\\ncombined damages and fees award was entered against Govindaraj personally as a\\n\\nsanction for his contempt. We thus are unable to determine whether any of the combined\\n\\ndamages and fees award should be upheld as a reasonable sanction for contempt, or\\n\\nwhether the entirety of the award against Govindaraj personally must be vacated. For\\n\\nthese reasons, although we affirm the district court’s decision to hold Govindaraj in\\n\\ncontempt, we remand the separate issue of sanctions to the district court for a\\n\\n 16\\n\\fdetermination whether any monetary sanctions for contempt were awarded against\\n\\nGovindaraj personally.\\n\\n\\n\\n IV.\\n\\n In sum, we affirm the district court’s contempt finding against Govindaraj, but we\\n\\nvacate the judgment for damages and attorneys’ fees entered against him. We remand for\\n\\nfurther proceedings for the court to determine whether any portion of the damages and\\n\\nfees award against Govindaraj was imposed as a sanction for his contempt of court and, if\\n\\nso, the amount of that sanction. The court may re-enter judgment against Govindaraj\\n\\npersonally only as to any such sanction for his contempt.\\n\\n\\n\\n AFFIRMED IN PART, VACATED IN PART, AND REMANDED\\n\\n\\n\\n\\n 17\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4419710/\", \"author_raw\": \"BARBARA MILANO KEENAN, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"AGEE"},"judge2":{"kind":"string","value":"KEENAN"},"judge3":{"kind":"string","value":"QUATTLEBAUM"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4642457/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: LIFE TECHNOLOGIES CORPORATION, a Delaware Corporation, Plaintiff - Appellee, v. Krishnamurthy GOVINDARAJ, Former President, Life Technologies Corporation, a Maryland Corporation, Party-In-Interest - Appellant, and Life Technologies Corporation, Montgomery County, Maryland, Defendant.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-07-24\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 16-1703\n\n\nLIFE TECHNOLOGIES CORPORATION, A DELAWARE CORPORATION,\n\n Plaintiff - Appellee,\n\n v.\n\nKRISHNAMURTHY GOVINDARAJ, Former President, Life Technologies\nCorporation, a Maryland Corporation,\n\n Party-in-Interest - Appellant,\n\n and\n\nLIFE TECHNOLOGIES CORPORATION, Montgomery County, Maryland,\n\n Defendant.\n\n\nAppeal from the United States District Court for the District of Maryland, at Greenbelt.\nRoger W. Titus, Senior District Judge. (8:10-cv-03527-RWT)\n\n\nArgued: March 21, 2019 Decided: July 24, 2019\n\n\nBefore AGEE, KEENAN, and QUATTLEBAUM, Circuit Judges.\n\n\nAffirmed in part, vacated in part, and remanded by published opinion. Judge Keenan\nwrote the opinion, in which Judge Agee and Judge Quattlebaum joined.\n\n\nARGUED: Michael R. Williams, BUSH SEYFERTH & PAIGE PLLC, Kalamazoo,\nMichigan, for Appellant. Meghan Katherine Canty, THEODORA ORINGHER PC,\n\fCosta Mesa, California, for Appellee. ON BRIEF: Brittney D. Kohn, BUSH\nSEYFERTH & PAIGE PLLC, Troy, Michigan, for Appellant. Matthew D. Murphey,\nTHEODORA ORINGHER PC, Costa Mesa, California, for Appellee.\n\n\n\n\n 2\n\fBARBARA MILANO KEENAN, Circuit Judge:\n\n The plaintiff in this case, Life Technologies Corp., filed a complaint against\n\nanother corporation of the same name (the defendant corporation, or the defendant),\n\nalleging trademark infringement and unfair competition under the Lanham Act, 15 U.S.C.\n\n§ 1125(a)(1)(A). The plaintiff obtained an injunction against the defendant corporation\n\nand its officers, including the corporation’s president, Dr. Krishnamurthy Govindaraj,\n\nwho was not named as a defendant. 1 After entry of default judgment against the\n\ncorporation and years of damages-related discovery, the district court awarded more than\n\n$1.7 million in damages, as well as more than $555,000 in attorneys’ fees, against both\n\nthe defendant corporation and Govindaraj personally. In holding Govindaraj personally\n\nliable for the money judgment despite his status as a non-party, the district court\n\nemphasized Govindaraj’s position as an officer of the defendant corporation and his\n\ncontinuing attempts to obstruct the litigation “in defiance of orders of [the] court.”\n\n Upon our review, we conclude that the district court erred in entering judgment\n\nagainst Govindaraj personally when he was not named as a party or otherwise brought\n\ninto the case by service of process. We additionally hold that the court did not abuse its\n\ndiscretion in finding Govindaraj in contempt of court. We therefore affirm in part, and\n\nvacate in part, the district court’s judgment. We remand the case for the court to\n\ndetermine whether any of the damages and fees award entered against Govindaraj is\n\nattributable to his contempt of court.\n\n 1\n Govindaraj does not appeal the district court’s order entering an injunction\nagainst him as an officer of the defendant corporation.\n\n 3\n\f I.\n\n In December 2010, plaintiff Life Technologies Corp., a Delaware corporation,\n\nfiled a two-count complaint against the defendant, Life Technologies Corp., a Maryland\n\ncorporation, alleging that the defendant corporation was infringing on the plaintiff’s\n\nregistered trademark, “Life Technologies.” Among other things, the plaintiff alleged that\n\nthe defendant corporation, plaintiff’s competitor in the field of scientific products and\n\nservices, improperly was using the “Life Technologies” mark as part of various internet\n\ndomain names to market the defendant’s goods and services.\n\n The plaintiff sought declaratory and injunctive relief, as well as treble damages\n\nunder the Lanham Act, 15 U.S.C. § 1125(a)(1)(A). It is undisputed that the plaintiff did\n\nnot name Govindaraj as a defendant, and did not refer to him in any allegations of the\n\ncomplaint. 2\n\n In March 2012, the district court entered default judgment against the defendant\n\ncorporation. The court additionally held that Govindaraj had acted in bad faith during the\n\nlitigation, observing that his statements on behalf of the defendant corporation were\n\n“laughably incorrect” and “absurd.” The court entered an order enjoining the defendant\n\ncorporation, and Govindaraj and his wife as corporate officers, from engaging in further\n\nactivity infringing on the plaintiff’s registered trademark. The court also held that based\n\n\n 2\n In addition to the defendant corporation, the complaint also listed five “Doe”\ndefendants. The plaintiff never sought to substitute specified individuals for these Doe\ndefendants, who were not referenced later in the litigation.\n\n 4\n\fon the defendant’s willful conduct, the case was “exceptional,” entitling the plaintiff to\n\npayment of its costs and attorneys’ fees. The court directed that the plaintiff be awarded\n\ndamages from the defendant corporation, including treble damages, in an amount to be\n\ndetermined following additional discovery in the case. 3\n\n Around the same time, Govindaraj dissolved the defendant corporation without\n\nnotice to the corporation’s creditors. In the months that followed, Govindaraj violated\n\nthe court’s injunction and continually attempted to obstruct the discovery process related\n\nto determining a damages award. Among other things, in violation of the discovery\n\nproceedings, Govindaraj transferred some internet domain names to foreign entities,\n\nmade repeated false claims regarding the company’s finances, and refused to produce\n\nvarious documents.\n\n In November 2012, the district court issued an order directing Govindaraj to show\n\ncause why he should not be held in contempt of court for violating the court’s injunction.\n\nAt a show cause hearing held the next month, Govindaraj, represented by counsel, made\n\nhis first formal appearance in the case as an interested party. After Govindaraj testified at\n\nthe hearing, the district court sua sponte raised the question whether damages could be\n\nawarded against Govindaraj personally. When Govindaraj’s counsel inquired whether\n\nthe court might pierce the corporate veil, the court responded that piercing the corporate\n\nveil “may be what’s necessary to effectuate the court’s judgment.” At that time, the court\n\n 3\n In October 2012, the district court awarded over $240,000 in attorneys’ fees and\ncosts against the defendant corporation for work performed by the plaintiff’s counsel\nbefore entry of default judgment on the merits of the case. That award was entered only\nagainst the defendant corporation and is not at issue in this appeal.\n\n 5\n\fheld Govindaraj in contempt for violating the injunction order, but “with[e]ld the\n\njudgment as to the sanction to impose.”\n\n Govindaraj continued his obstructionist conduct during more than three additional\n\nyears of discovery related to damages sustained by the plaintiff. In September 2014, the\n\ncourt again held Govindaraj in contempt for refusing to authorize the plaintiff access to\n\ncertain email accounts as required by a prior court order. The court delayed imposition of\n\nsanctions until the court made a final determination regarding damages.\n\n In late 2015, the plaintiff filed motions seeking damages for trademark\n\ninfringement and for attorneys’ fees, asking the court to hold Govindaraj and his wife\n\njointly and severally liable for those damages and fees along with the defendant\n\ncorporation. During a hearing on the motions, the plaintiff asserted that although\n\nGovindaraj and his wife had not been named as defendants in the action, they were\n\npersonally responsible as officers of the corporation for the defendant’s acts of\n\ninfringement and, thus, could be held personally liable for an award of damages and\n\nattorneys’ fees.\n\n The district court found that Govindaraj was “clearly . . . the mastermind of th[e]\n\ncorporate entity,” had “fully participated in and fully understood what was going on” in\n\nthe litigation, and had “attempted to thwart [the litigation] over and over again.” Based\n\non Govindaraj’s actions “in defiance of orders of [the] court,” the district court imposed\n\nan award of damages and attorneys’ fees against Govindaraj personally. The plaintiff did\n\nnot argue, and the court did not find, that piercing the corporate veil of the defendant\n\ncorporation was warranted or that Govindaraj was an “alter ego” of that corporation.\n\n 6\n\fThe court later entered an order holding Govindaraj and the defendant corporation jointly\n\nand severally liable for payment of treble damages in the total amount of $1,712,936.49. 4\n\nThe court also awarded over $555,000 in attorneys’ fees and costs against both\n\nGovindaraj and the defendant corporation. Govindaraj now appeals. 5\n\n\n\n II.\n\n Govindaraj argues that the district court violated his due process rights in entering\n\na judgment against him for damages and attorneys’ fees when he was not named as a\n\ndefendant in the action. He contends that because he was not a party in the case, he was\n\nunable to defend himself against individual liability as a corporate officer or as a putative\n\nalter ego of the defendant corporation.\n\n In response, the plaintiff argues that Govindaraj was subject to personal liability,\n\nbecause he was directly responsible for the acts of trademark infringement committed by\n\nthe defendant corporation. Additionally, the plaintiff asserts that Govindaraj was the alter\n\nego of the defendant corporation, was on notice of the plaintiff’s allegations, and\n\nparticipated fully throughout the district court proceedings. Thus, the plaintiff submits\n\nthat it was not required to name Govindaraj as a party given his well-known role in the\n\nactivities of the defendant corporation. We disagree with the plaintiff’s arguments.\n\n\n\n 4\n The court denied the plaintiff’s request to hold Govindaraj’s wife personally\nliable for payment of the judgment awarding damages and attorneys’ fees to the plaintiff.\n 5\n The defendant corporation does not appeal the judgment entered against it.\n\n 7\n\f We review de novo the question of law whether the district court erred in entering\n\njudgment against a non-party to the litigation. See Sky Cable, LLC v. DIRECTV, Inc.,\n\n886 F.3d 375, 391 (4th Cir. 2018); Wright v. North Carolina, 787 F.3d 256, 261 (4th Cir.\n\n2015). Under well-established principles of due process, a person is not subject to a\n\njudgment entered in litigation in which he has not been named as a party or been “made a\n\nparty by service of process.” Ortiz v. Fibreboard Corp., 527 U.S. 815, 846 (1999)\n\n(citation omitted); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110-12\n\n(1969). “[O]ne becomes a party officially, and is required to take action in that capacity,\n\nonly upon service of a summons or other authority-asserting measure stating the time\n\nwithin which the party served must appear and defend.” Murphy Bros., Inc. v. Michetti\n\nPipe Stringing, Inc., 526 U.S. 344, 350 (1999). Such service of process is fundamental to\n\nthe imposition of any procedural restraint on a named defendant, and enables the court to\n\nexercise personal jurisdiction over him. Id.; United States v. Perez, 752 F.3d 398, 406\n\n(4th Cir. 2014) (citing Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104\n\n(1987)). By precluding entry of judgment against a non-party to a case, these due process\n\nprinciples ensure that a court does not “adjudicate a personal claim or obligation unless\n\n[the court] has jurisdiction over the person of the defendant.” Zenith Radio, 395 U.S. at\n\n110.\n\n Due process also requires that a defendant “be given an opportunity to respond\n\nand contest his personal liability . . . after he [is] made a party and before the entry of\n\njudgment against him.” Nelson v. Adams, USA, Inc., 529 U.S. 460, 463 (2000). Thus,\n\nfundamental to the protection of due process is “an opportunity to be heard . . . at a\n\n 8\n\fmeaningful time.” Sciolino v. City of Newport News, 480 F.3d 642, 653 (4th Cir. 2007)\n\n(citation and internal quotation marks omitted) (emphasis added). A person must have a\n\n“fair chance” to respond to allegations made against him, and that opportunity must be\n\nprovided in a “reliable and orderly” fashion. Nelson, 529 U.S. at 467. These concerns\n\nare reflected in the Federal Rules of Civil Procedure, which require identification of the\n\ndefendants in a complaint, service of process, and compliance with rules for amending a\n\ncomplaint to add new defendants. See Fed. R. Civ. P. 4, 15, 17; Nelson, 529 U.S. at 465\n\n(“The Federal Rules of Civil Procedure are designed to further the due process of law that\n\nthe Constitution guarantees.”).\n\n In light of these due process limitations, a judgment entered against a corporation\n\nthat is determined to be the alter ego of a non-party establishes personal liability of the\n\nnon-party only if the non-party is notified that such liability may be imposed and is given\n\nfair opportunity to defend the action resulting in the judgment. Restatement (Second) of\n\nJudgments § 59(5) (Am. Law Inst. 1982); see generally Sky Cable, 886 F.3d at 391-92.\n\nWhen these strict conditions are met, the non-party alter ego is properly before the court\n\nand due process concerns are satisfied, because the non-party was served through service\n\non its alter ego, was given adequate notice of its potential exposure, and has had the\n\nopportunity to defend against personal liability.\n\n Here, it is undisputed that Govindaraj was not named as a party in the case, and he\n\nwas not personally served with process. Indeed, Govindaraj’s name does not appear\n\nanywhere in the complaint, and the plaintiff never sought to amend the complaint to add\n\nhim as a defendant in the case. And, contrary to the plaintiff’s argument on appeal, the\n\n 9\n\fdistrict court’s sua sponte observation in December 2012 that veil piercing might be\n\nappropriate was merely a suggestion, and nothing more. The plaintiff did not take any\n\naction based on the court’s comment, which, standing alone, did not notify Govindaraj\n\nthat he needed “to respond and be heard” in a “reliable and orderly course” before\n\njudgment could be entered against him. Nelson, 529 U.S. at 466-67.\n\n We reject the plaintiff’s attempt on appeal to cure its procedural missteps by\n\nbelatedly raising an alter ego theory of liability to preserve a judgment obtained against a\n\nnon-party. As a result of the plaintiff’s failure to advance such an alter ego theory in the\n\ndistrict court, the present record does not contain any factual findings resolving that issue,\n\nand the district court was not asked to pierce the corporate veil. Regardless whether the\n\nfacts in the record theoretically could have supported such findings, we will not hold a\n\nnon-party personally liable for a monetary judgment when the non-party did not receive\n\nthe procedural protections of notice and an opportunity to be heard to which every\n\ndefendant is entitled.\n\n Our conclusion is not altered by the plaintiff’s reliance on our decision in Sky\n\nCable, 886 F.3d 375. There, the plaintiff asked the district court to “reverse pierce” the\n\ncorporate veil 6 of a limited liability company (LLC) in which the individual defendant\n\nwas the sole member in order to execute a judgment already entered against the\n\n 6\n “[R]everse veil piercing attaches liability to the entity for a judgment against the\nindividuals who hold an ownership interest in that entity.” Sky Cable, 886 F.3d at 385.\nIn contrast, “traditional” veil piercing “permits a court to render an individual liable in a\njudgment against a business entity in which the individual has an interest, when the entity\nis in fact a mere instrumentality or alter ego of the individual.” Id. (citation, internal\nquotation marks, and brackets omitted).\n\n 10\n\findividual. Id. at 381. The district court ruled on that question in the plaintiff’s favor.\n\nId. Such “outsider” reverse piercing permitted the judgment creditor to reach the LLC to\n\nsatisfy the individual’s debt only after the LLC was determined to be an alter ego, and,\n\nthus, identical to its member as “the sole party in [the] particular transaction.” Id. at 389\n\n(quoting Pauley Petroleum, Inc. v. Cont’l Oil Co., 239 A.2d 629, 633 (Del. 1968)).\n\n Based on these facts, we held that “an LLC that is the alter ego of its sole member\n\nis properly before the court when the court has jurisdiction over that member.” Id. at\n\n392. Underlying that conclusion was the district court’s determination that the defendant\n\nwas using the LLC for the improper purpose of hiding his assets. Id. at 389-91; see also\n\nSky Cable LLC v. Coley, No. 5:11cv48, 2016 WL 3926492, at *18 (W.D. Va. July 18,\n\n2016). By virtue of the plaintiff’s motion to reverse pierce the corporate veil, the non-\n\nparty LLC was on notice that the plaintiff sought to execute the judgment entered against\n\nthe individual member by reaching the assets of the alter ego company. Sky Cable, 886\n\nF.3d at 383, 392. And after receiving such notice, the LLC, through its sole member,\n\nargued in the district court that an alter ego finding was inappropriate. Id. at 389-91; see\n\ngenerally Sky Cable, 2016 WL 3926492.\n\n Here, however, Govindaraj was not notified at any point during the litigation in\n\nthe district court that the plaintiff was seeking to impose liability on him personally, or to\n\ncollect a money judgment from him under a theory that he was the alter ego of the\n\ndefendant corporation. Thus, Govindaraj did not have an opportunity to defend against\n\npersonal liability with the array of defenses and procedures afforded to parties in\n\naccordance with their due process rights.\n\n 11\n\f We likewise find no merit in the plaintiff’s argument that Govindaraj should be\n\nheld personally liable for the damages and fees award as an officer of the defendant\n\ncorporation based on his underlying acts of infringement. Although an officer of a\n\ncorporation can be held personally liable for his own conduct in infringing on another’s\n\ntrademark, see Polo Fashions, Inc. v. Craftex, Inc., 816 F.2d 145 (4th Cir. 1987), such a\n\nsubstantive claim of liability first must be pleaded in a complaint against the individual\n\nalleged wrongdoer. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (plaintiff must\n\n“plead[] factual content that allows the court to draw the reasonable inference that the\n\ndefendant is liable for the misconduct alleged” (emphasis added)); Stevenson v. City of\n\nSeat Pleasant, 743 F.3d 411, 420 (4th Cir. 2014) (“[I]t is the complaint . . . that provides\n\nfair notice to defendants of the allegations against them.” (internal quotation marks\n\nomitted)); cf. Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527, 543-49 (4th Cir. 2013)\n\n(evaluating alter ego allegations set forth in complaint under Federal Rule of Civil\n\nProcedure 12(b)(6)); Polo Fashions, 816 F.2d at 147 (noting that officer was named as a\n\ndefendant). The fact that the plaintiff might have prevailed had it chosen to bring a claim\n\nagainst Govindaraj personally, based on this or any other legal theory, did not relieve the\n\nplaintiff from complying with the basic requirements of due process. See Nelson, 529\n\nU.S. at 471 (“The law, at its most fundamental, does not render judgment simply because\n\na person might have been found liable had he been charged.” (citation omitted)).\n\n In fashioning the monetary relief in this case, the district court reasoned that\n\nGovindaraj’s egregious litigation conduct warranted the imposition of personal liability.\n\nWhile the district court’s frustration with Govindaraj’s years-long obstructionist behavior\n\n 12\n\fwas understandable, that behavior was not a valid basis for subjecting him to personal\n\nliability without satisfying due process requirements. Instead, such abusive litigation\n\npractices should be addressed through sanctions and the court’s contempt power. See\n\nFed. R. Civ. P. 37 (discussing availability of sanctions for “failure to make disclosures or\n\nto cooperate in discovery”); see generally Chambers v. NASCO, Inc., 501 U.S. 32 (1991)\n\n(discussing courts’ inherent contempt power that “extends to a full range of litigation\n\nabuses”). 7\n\n\n\n III.\n\n Govindaraj next challenges the district court’s order holding him in contempt of\n\ncourt. The district court based its contempt finding on Govindaraj’s failure to comply\n\nwith a January 2014 discovery order requiring him to sign release forms authorizing\n\naccess to his email accounts. In Govindaraj’s view, the discovery order was\n\n“insufficiently definite,” because the order did not specify the actual email accounts to\n\nwhich the order applied.\n\n We review for abuse of discretion the district court’s decision holding Govindaraj\n\nin contempt of court. Rainbow Sch., Inc. v. Rainbow Early Educ. Holding LLC, 887 F.3d\n\n610, 617 (4th Cir. 2018). Federal courts have the inherent power to order sanctions “to\n\npreserve the integrity of the judicial process” and to punish bad-faith conduct intended to\n\n 7\n Based on our conclusion that the damages and fees award erroneously was\nentered against Govindaraj personally, we do not reach his alternative argument that the\ndistrict court erred in its calculation of the amount of reasonable attorneys’ fees under\nRobinson v. Equifax Information Services, LLC, 560 F.3d 235 (4th Cir. 2009).\n\n 13\n\fdelay or disrupt the course of litigation or to impede enforcement of a court order. In re\n\nJemsek Clinic, P.A., 850 F.3d 150, 157 (4th Cir. 2017) (quoting Chambers, 501 U.S. at\n\n46). Under the Federal Rules of Civil Procedure, 8 a court may “treat[] as contempt of\n\ncourt the failure to obey” a court order by an officer or director of a party. 9 Fed. R. Civ.\n\nP. 37(b)(2)(A)(vii).\n\n A court’s contempt power, which reflects the court’s broad authority, cannot be\n\nexercised when there is “fair ground of doubt as to the wrongfulness of” the conduct in\n\nquestion. Taggart v. Lorenzen, 139 S. Ct. 1795, 1801 (2019) (citation and emphasis\n\nomitted); see also Gascho v. Glob. Fitness Holdings, LLC, 875 F.3d 795, 800 (6th Cir.\n\n2017) (contempt finding unwarranted if court’s decree was “too vague to be understood”\n\n(quoting Int’l Longshoremen’s Ass’n v. Phila. Marine Trade Ass’n, 389 U.S. 64, 76\n\n(1967))). Thus, a party must be able to discern from the language of a court’s order the\n\nactions necessary to comply with the court’s directive. See Taggart, 139 S. Ct. at 1802\n\n(“[P]rinciples of basic fairness require that those enjoined receive explicit notice of what\n\nconduct is outlawed before being held in civil contempt.” (citations, quotation marks, and\n\nbrackets omitted)); Gascho, 875 F.3d at 800 (contempt sanctions are “reserved for those\n\nwho fully understand the meaning of a court order and yet choose to ignore its mandate”\n\n\n\n\n 8\n The district court did not specify whether it imposed sanctions against\nGovindaraj under the Federal Rules or under the court’s inherent contempt power.\n 9\n Govindaraj does not contest the court’s authority to impose sanctions on him as a\nnon-party.\n\n 14\n\f(quoting Phila. Marine Trade Assoc., 389 U.S. at 76) (internal quotation marks and\n\nalterations omitted)).\n\n In the present case, the history of the discovery issues leading to the district\n\ncourt’s contempt finding are particularly revealing. After Govindaraj refused for months\n\nto comply with the plaintiff’s discovery requests, the magistrate judge ordered\n\nGovindaraj in October 2013 to “compile a list of all e-mail addresses he is currently\n\nusing and/or previously used. [Govindaraj] must affirm the list of e-mail addresses is the\n\nfull, correct and absolute list of all e-mail addresses he presently or previously used”\n\n(emphasis in original). In response to the magistrate judge’s order, Govindaraj provided\n\nonly four email addresses. However, the plaintiff independently discovered about two\n\ndozen email addresses under Govindaraj’s control.\n\n Three months later, in January 2014, after Govindaraj failed to provide the\n\nplaintiff with emails from all these accounts during discovery, the magistrate judge held a\n\ntelephone conference with the plaintiff’s representatives and Govindaraj. Following the\n\nconference, the magistrate judge issued the order Govindaraj now challenges (the\n\nchallenged order):\n\n [F]or the reasons stated during the telephone conference, [Govindaraj] is\n hereby ORDERED to sign and execute “consent and release forms”\n regarding various e-mail accounts within ten (10) days of Plaintiff’s\n counsel providing the forms to [Govindaraj’s] counsel[.]\n\nGovindaraj filed objections to the magistrate judge’s order, which objections the district\n\ncourt overruled. Govindaraj nevertheless continued to refuse to sign the consent forms\n\nproduced by the plaintiff’s counsel. Based on this refusal, and after reviewing the\n\n\n 15\n\fproposed consent forms, the district court held Govindaraj in contempt for failing to\n\ncomply with the challenged order. The court did not immediately impose sanctions for\n\nthe violation.\n\n Upon consideration of the challenged order, we conclude that its terms were not\n\nvague, and that the district court did not abuse its discretion in finding Govindaraj in\n\ncontempt of court. By the time that the magistrate judge entered the challenged order,\n\nGovindaraj was well aware that the court expected him to provide the plaintiff access to\n\n“all” the email accounts the court earlier had required him to identify. Although\n\nGovindaraj disagrees with the reasonableness of this requirement, that disagreement has\n\nno bearing on the question whether the terms of the challenged order adequately notified\n\nhim of the obligations imposed by the court. And given Govindaraj’s repeated disregard\n\nfor the discovery process, his assertion on appeal that his “actions bespeak good faith”\n\nlacks any basis in the record. See Taggart, 139 S. Ct. at 1802 (explaining that a\n\ncontemnor’s bad faith can justify imposition of sanctions).\n\n We therefore affirm the district court’s judgment holding Govindaraj in contempt\n\nfor violating the challenged order. However, the court did not specify whether any of the\n\ncombined damages and fees award was entered against Govindaraj personally as a\n\nsanction for his contempt. We thus are unable to determine whether any of the combined\n\ndamages and fees award should be upheld as a reasonable sanction for contempt, or\n\nwhether the entirety of the award against Govindaraj personally must be vacated. For\n\nthese reasons, although we affirm the district court’s decision to hold Govindaraj in\n\ncontempt, we remand the separate issue of sanctions to the district court for a\n\n 16\n\fdetermination whether any monetary sanctions for contempt were awarded against\n\nGovindaraj personally.\n\n\n\n IV.\n\n In sum, we affirm the district court’s contempt finding against Govindaraj, but we\n\nvacate the judgment for damages and attorneys’ fees entered against him. We remand for\n\nfurther proceedings for the court to determine whether any portion of the damages and\n\nfees award against Govindaraj was imposed as a sanction for his contempt of court and, if\n\nso, the amount of that sanction. The court may re-enter judgment against Govindaraj\n\npersonally only as to any such sanction for his contempt.\n\n\n\n AFFIRMED IN PART, VACATED IN PART, AND REMANDED\n\n\n\n\n 17\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: LIFE TECHNOLOGIES CORPORATION, a Delaware Corporation, Plaintiff - Appellee, v. Krishnamurthy GOVINDARAJ, Former President, Life Technologies Corporation, a Maryland Corporation, Party-In-Interest - Appellant, and Life Technologies Corporation, Montgomery County, Maryland, Defendant.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-07-24\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 16-1703\\n\\n\\nLIFE TECHNOLOGIES CORPORATION, A DELAWARE CORPORATION,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nKRISHNAMURTHY GOVINDARAJ, Former President, Life Technologies\\nCorporation, a Maryland Corporation,\\n\\n Party-in-Interest - Appellant,\\n\\n and\\n\\nLIFE TECHNOLOGIES CORPORATION, Montgomery County, Maryland,\\n\\n Defendant.\\n\\n\\nAppeal from the United States District Court for the District of Maryland, at Greenbelt.\\nRoger W. Titus, Senior District Judge. (8:10-cv-03527-RWT)\\n\\n\\nArgued: March 21, 2019 Decided: July 24, 2019\\n\\n\\nBefore AGEE, KEENAN, and QUATTLEBAUM, Circuit Judges.\\n\\n\\nAffirmed in part, vacated in part, and remanded by published opinion. Judge Keenan\\nwrote the opinion, in which Judge Agee and Judge Quattlebaum joined.\\n\\n\\nARGUED: Michael R. Williams, BUSH SEYFERTH & PAIGE PLLC, Kalamazoo,\\nMichigan, for Appellant. Meghan Katherine Canty, THEODORA ORINGHER PC,\\n\\fCosta Mesa, California, for Appellee. ON BRIEF: Brittney D. Kohn, BUSH\\nSEYFERTH & PAIGE PLLC, Troy, Michigan, for Appellant. Matthew D. Murphey,\\nTHEODORA ORINGHER PC, Costa Mesa, California, for Appellee.\\n\\n\\n\\n\\n 2\\n\\fBARBARA MILANO KEENAN, Circuit Judge:\\n\\n The plaintiff in this case, Life Technologies Corp., filed a complaint against\\n\\nanother corporation of the same name (the defendant corporation, or the defendant),\\n\\nalleging trademark infringement and unfair competition under the Lanham Act, 15 U.S.C.\\n\\n§ 1125(a)(1)(A). The plaintiff obtained an injunction against the defendant corporation\\n\\nand its officers, including the corporation’s president, Dr. Krishnamurthy Govindaraj,\\n\\nwho was not named as a defendant. 1 After entry of default judgment against the\\n\\ncorporation and years of damages-related discovery, the district court awarded more than\\n\\n$1.7 million in damages, as well as more than $555,000 in attorneys’ fees, against both\\n\\nthe defendant corporation and Govindaraj personally. In holding Govindaraj personally\\n\\nliable for the money judgment despite his status as a non-party, the district court\\n\\nemphasized Govindaraj’s position as an officer of the defendant corporation and his\\n\\ncontinuing attempts to obstruct the litigation “in defiance of orders of [the] court.”\\n\\n Upon our review, we conclude that the district court erred in entering judgment\\n\\nagainst Govindaraj personally when he was not named as a party or otherwise brought\\n\\ninto the case by service of process. We additionally hold that the court did not abuse its\\n\\ndiscretion in finding Govindaraj in contempt of court. We therefore affirm in part, and\\n\\nvacate in part, the district court’s judgment. We remand the case for the court to\\n\\ndetermine whether any of the damages and fees award entered against Govindaraj is\\n\\nattributable to his contempt of court.\\n\\n 1\\n Govindaraj does not appeal the district court’s order entering an injunction\\nagainst him as an officer of the defendant corporation.\\n\\n 3\\n\\f I.\\n\\n In December 2010, plaintiff Life Technologies Corp., a Delaware corporation,\\n\\nfiled a two-count complaint against the defendant, Life Technologies Corp., a Maryland\\n\\ncorporation, alleging that the defendant corporation was infringing on the plaintiff’s\\n\\nregistered trademark, “Life Technologies.” Among other things, the plaintiff alleged that\\n\\nthe defendant corporation, plaintiff’s competitor in the field of scientific products and\\n\\nservices, improperly was using the “Life Technologies” mark as part of various internet\\n\\ndomain names to market the defendant’s goods and services.\\n\\n The plaintiff sought declaratory and injunctive relief, as well as treble damages\\n\\nunder the Lanham Act, 15 U.S.C. § 1125(a)(1)(A). It is undisputed that the plaintiff did\\n\\nnot name Govindaraj as a defendant, and did not refer to him in any allegations of the\\n\\ncomplaint. 2\\n\\n In March 2012, the district court entered default judgment against the defendant\\n\\ncorporation. The court additionally held that Govindaraj had acted in bad faith during the\\n\\nlitigation, observing that his statements on behalf of the defendant corporation were\\n\\n“laughably incorrect” and “absurd.” The court entered an order enjoining the defendant\\n\\ncorporation, and Govindaraj and his wife as corporate officers, from engaging in further\\n\\nactivity infringing on the plaintiff’s registered trademark. The court also held that based\\n\\n\\n 2\\n In addition to the defendant corporation, the complaint also listed five “Doe”\\ndefendants. The plaintiff never sought to substitute specified individuals for these Doe\\ndefendants, who were not referenced later in the litigation.\\n\\n 4\\n\\fon the defendant’s willful conduct, the case was “exceptional,” entitling the plaintiff to\\n\\npayment of its costs and attorneys’ fees. The court directed that the plaintiff be awarded\\n\\ndamages from the defendant corporation, including treble damages, in an amount to be\\n\\ndetermined following additional discovery in the case. 3\\n\\n Around the same time, Govindaraj dissolved the defendant corporation without\\n\\nnotice to the corporation’s creditors. In the months that followed, Govindaraj violated\\n\\nthe court’s injunction and continually attempted to obstruct the discovery process related\\n\\nto determining a damages award. Among other things, in violation of the discovery\\n\\nproceedings, Govindaraj transferred some internet domain names to foreign entities,\\n\\nmade repeated false claims regarding the company’s finances, and refused to produce\\n\\nvarious documents.\\n\\n In November 2012, the district court issued an order directing Govindaraj to show\\n\\ncause why he should not be held in contempt of court for violating the court’s injunction.\\n\\nAt a show cause hearing held the next month, Govindaraj, represented by counsel, made\\n\\nhis first formal appearance in the case as an interested party. After Govindaraj testified at\\n\\nthe hearing, the district court sua sponte raised the question whether damages could be\\n\\nawarded against Govindaraj personally. When Govindaraj’s counsel inquired whether\\n\\nthe court might pierce the corporate veil, the court responded that piercing the corporate\\n\\nveil “may be what’s necessary to effectuate the court’s judgment.” At that time, the court\\n\\n 3\\n In October 2012, the district court awarded over $240,000 in attorneys’ fees and\\ncosts against the defendant corporation for work performed by the plaintiff’s counsel\\nbefore entry of default judgment on the merits of the case. That award was entered only\\nagainst the defendant corporation and is not at issue in this appeal.\\n\\n 5\\n\\fheld Govindaraj in contempt for violating the injunction order, but “with[e]ld the\\n\\njudgment as to the sanction to impose.”\\n\\n Govindaraj continued his obstructionist conduct during more than three additional\\n\\nyears of discovery related to damages sustained by the plaintiff. In September 2014, the\\n\\ncourt again held Govindaraj in contempt for refusing to authorize the plaintiff access to\\n\\ncertain email accounts as required by a prior court order. The court delayed imposition of\\n\\nsanctions until the court made a final determination regarding damages.\\n\\n In late 2015, the plaintiff filed motions seeking damages for trademark\\n\\ninfringement and for attorneys’ fees, asking the court to hold Govindaraj and his wife\\n\\njointly and severally liable for those damages and fees along with the defendant\\n\\ncorporation. During a hearing on the motions, the plaintiff asserted that although\\n\\nGovindaraj and his wife had not been named as defendants in the action, they were\\n\\npersonally responsible as officers of the corporation for the defendant’s acts of\\n\\ninfringement and, thus, could be held personally liable for an award of damages and\\n\\nattorneys’ fees.\\n\\n The district court found that Govindaraj was “clearly . . . the mastermind of th[e]\\n\\ncorporate entity,” had “fully participated in and fully understood what was going on” in\\n\\nthe litigation, and had “attempted to thwart [the litigation] over and over again.” Based\\n\\non Govindaraj’s actions “in defiance of orders of [the] court,” the district court imposed\\n\\nan award of damages and attorneys’ fees against Govindaraj personally. The plaintiff did\\n\\nnot argue, and the court did not find, that piercing the corporate veil of the defendant\\n\\ncorporation was warranted or that Govindaraj was an “alter ego” of that corporation.\\n\\n 6\\n\\fThe court later entered an order holding Govindaraj and the defendant corporation jointly\\n\\nand severally liable for payment of treble damages in the total amount of $1,712,936.49. 4\\n\\nThe court also awarded over $555,000 in attorneys’ fees and costs against both\\n\\nGovindaraj and the defendant corporation. Govindaraj now appeals. 5\\n\\n\\n\\n II.\\n\\n Govindaraj argues that the district court violated his due process rights in entering\\n\\na judgment against him for damages and attorneys’ fees when he was not named as a\\n\\ndefendant in the action. He contends that because he was not a party in the case, he was\\n\\nunable to defend himself against individual liability as a corporate officer or as a putative\\n\\nalter ego of the defendant corporation.\\n\\n In response, the plaintiff argues that Govindaraj was subject to personal liability,\\n\\nbecause he was directly responsible for the acts of trademark infringement committed by\\n\\nthe defendant corporation. Additionally, the plaintiff asserts that Govindaraj was the alter\\n\\nego of the defendant corporation, was on notice of the plaintiff’s allegations, and\\n\\nparticipated fully throughout the district court proceedings. Thus, the plaintiff submits\\n\\nthat it was not required to name Govindaraj as a party given his well-known role in the\\n\\nactivities of the defendant corporation. We disagree with the plaintiff’s arguments.\\n\\n\\n\\n 4\\n The court denied the plaintiff’s request to hold Govindaraj’s wife personally\\nliable for payment of the judgment awarding damages and attorneys’ fees to the plaintiff.\\n 5\\n The defendant corporation does not appeal the judgment entered against it.\\n\\n 7\\n\\f We review de novo the question of law whether the district court erred in entering\\n\\njudgment against a non-party to the litigation. See Sky Cable, LLC v. DIRECTV, Inc.,\\n\\n886 F.3d 375, 391 (4th Cir. 2018); Wright v. North Carolina, 787 F.3d 256, 261 (4th Cir.\\n\\n2015). Under well-established principles of due process, a person is not subject to a\\n\\njudgment entered in litigation in which he has not been named as a party or been “made a\\n\\nparty by service of process.” Ortiz v. Fibreboard Corp., 527 U.S. 815, 846 (1999)\\n\\n(citation omitted); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110-12\\n\\n(1969). “[O]ne becomes a party officially, and is required to take action in that capacity,\\n\\nonly upon service of a summons or other authority-asserting measure stating the time\\n\\nwithin which the party served must appear and defend.” Murphy Bros., Inc. v. Michetti\\n\\nPipe Stringing, Inc., 526 U.S. 344, 350 (1999). Such service of process is fundamental to\\n\\nthe imposition of any procedural restraint on a named defendant, and enables the court to\\n\\nexercise personal jurisdiction over him. Id.; United States v. Perez, 752 F.3d 398, 406\\n\\n(4th Cir. 2014) (citing Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104\\n\\n(1987)). By precluding entry of judgment against a non-party to a case, these due process\\n\\nprinciples ensure that a court does not “adjudicate a personal claim or obligation unless\\n\\n[the court] has jurisdiction over the person of the defendant.” Zenith Radio, 395 U.S. at\\n\\n110.\\n\\n Due process also requires that a defendant “be given an opportunity to respond\\n\\nand contest his personal liability . . . after he [is] made a party and before the entry of\\n\\njudgment against him.” Nelson v. Adams, USA, Inc., 529 U.S. 460, 463 (2000). Thus,\\n\\nfundamental to the protection of due process is “an opportunity to be heard . . . at a\\n\\n 8\\n\\fmeaningful time.” Sciolino v. City of Newport News, 480 F.3d 642, 653 (4th Cir. 2007)\\n\\n(citation and internal quotation marks omitted) (emphasis added). A person must have a\\n\\n“fair chance” to respond to allegations made against him, and that opportunity must be\\n\\nprovided in a “reliable and orderly” fashion. Nelson, 529 U.S. at 467. These concerns\\n\\nare reflected in the Federal Rules of Civil Procedure, which require identification of the\\n\\ndefendants in a complaint, service of process, and compliance with rules for amending a\\n\\ncomplaint to add new defendants. See Fed. R. Civ. P. 4, 15, 17; Nelson, 529 U.S. at 465\\n\\n(“The Federal Rules of Civil Procedure are designed to further the due process of law that\\n\\nthe Constitution guarantees.”).\\n\\n In light of these due process limitations, a judgment entered against a corporation\\n\\nthat is determined to be the alter ego of a non-party establishes personal liability of the\\n\\nnon-party only if the non-party is notified that such liability may be imposed and is given\\n\\nfair opportunity to defend the action resulting in the judgment. Restatement (Second) of\\n\\nJudgments § 59(5) (Am. Law Inst. 1982); see generally Sky Cable, 886 F.3d at 391-92.\\n\\nWhen these strict conditions are met, the non-party alter ego is properly before the court\\n\\nand due process concerns are satisfied, because the non-party was served through service\\n\\non its alter ego, was given adequate notice of its potential exposure, and has had the\\n\\nopportunity to defend against personal liability.\\n\\n Here, it is undisputed that Govindaraj was not named as a party in the case, and he\\n\\nwas not personally served with process. Indeed, Govindaraj’s name does not appear\\n\\nanywhere in the complaint, and the plaintiff never sought to amend the complaint to add\\n\\nhim as a defendant in the case. And, contrary to the plaintiff’s argument on appeal, the\\n\\n 9\\n\\fdistrict court’s sua sponte observation in December 2012 that veil piercing might be\\n\\nappropriate was merely a suggestion, and nothing more. The plaintiff did not take any\\n\\naction based on the court’s comment, which, standing alone, did not notify Govindaraj\\n\\nthat he needed “to respond and be heard” in a “reliable and orderly course” before\\n\\njudgment could be entered against him. Nelson, 529 U.S. at 466-67.\\n\\n We reject the plaintiff’s attempt on appeal to cure its procedural missteps by\\n\\nbelatedly raising an alter ego theory of liability to preserve a judgment obtained against a\\n\\nnon-party. As a result of the plaintiff’s failure to advance such an alter ego theory in the\\n\\ndistrict court, the present record does not contain any factual findings resolving that issue,\\n\\nand the district court was not asked to pierce the corporate veil. Regardless whether the\\n\\nfacts in the record theoretically could have supported such findings, we will not hold a\\n\\nnon-party personally liable for a monetary judgment when the non-party did not receive\\n\\nthe procedural protections of notice and an opportunity to be heard to which every\\n\\ndefendant is entitled.\\n\\n Our conclusion is not altered by the plaintiff’s reliance on our decision in Sky\\n\\nCable, 886 F.3d 375. There, the plaintiff asked the district court to “reverse pierce” the\\n\\ncorporate veil 6 of a limited liability company (LLC) in which the individual defendant\\n\\nwas the sole member in order to execute a judgment already entered against the\\n\\n 6\\n “[R]everse veil piercing attaches liability to the entity for a judgment against the\\nindividuals who hold an ownership interest in that entity.” Sky Cable, 886 F.3d at 385.\\nIn contrast, “traditional” veil piercing “permits a court to render an individual liable in a\\njudgment against a business entity in which the individual has an interest, when the entity\\nis in fact a mere instrumentality or alter ego of the individual.” Id. (citation, internal\\nquotation marks, and brackets omitted).\\n\\n 10\\n\\findividual. Id. at 381. The district court ruled on that question in the plaintiff’s favor.\\n\\nId. Such “outsider” reverse piercing permitted the judgment creditor to reach the LLC to\\n\\nsatisfy the individual’s debt only after the LLC was determined to be an alter ego, and,\\n\\nthus, identical to its member as “the sole party in [the] particular transaction.” Id. at 389\\n\\n(quoting Pauley Petroleum, Inc. v. Cont’l Oil Co., 239 A.2d 629, 633 (Del. 1968)).\\n\\n Based on these facts, we held that “an LLC that is the alter ego of its sole member\\n\\nis properly before the court when the court has jurisdiction over that member.” Id. at\\n\\n392. Underlying that conclusion was the district court’s determination that the defendant\\n\\nwas using the LLC for the improper purpose of hiding his assets. Id. at 389-91; see also\\n\\nSky Cable LLC v. Coley, No. 5:11cv48, 2016 WL 3926492, at *18 (W.D. Va. July 18,\\n\\n2016). By virtue of the plaintiff’s motion to reverse pierce the corporate veil, the non-\\n\\nparty LLC was on notice that the plaintiff sought to execute the judgment entered against\\n\\nthe individual member by reaching the assets of the alter ego company. Sky Cable, 886\\n\\nF.3d at 383, 392. And after receiving such notice, the LLC, through its sole member,\\n\\nargued in the district court that an alter ego finding was inappropriate. Id. at 389-91; see\\n\\ngenerally Sky Cable, 2016 WL 3926492.\\n\\n Here, however, Govindaraj was not notified at any point during the litigation in\\n\\nthe district court that the plaintiff was seeking to impose liability on him personally, or to\\n\\ncollect a money judgment from him under a theory that he was the alter ego of the\\n\\ndefendant corporation. Thus, Govindaraj did not have an opportunity to defend against\\n\\npersonal liability with the array of defenses and procedures afforded to parties in\\n\\naccordance with their due process rights.\\n\\n 11\\n\\f We likewise find no merit in the plaintiff’s argument that Govindaraj should be\\n\\nheld personally liable for the damages and fees award as an officer of the defendant\\n\\ncorporation based on his underlying acts of infringement. Although an officer of a\\n\\ncorporation can be held personally liable for his own conduct in infringing on another’s\\n\\ntrademark, see Polo Fashions, Inc. v. Craftex, Inc., 816 F.2d 145 (4th Cir. 1987), such a\\n\\nsubstantive claim of liability first must be pleaded in a complaint against the individual\\n\\nalleged wrongdoer. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (plaintiff must\\n\\n“plead[] factual content that allows the court to draw the reasonable inference that the\\n\\ndefendant is liable for the misconduct alleged” (emphasis added)); Stevenson v. City of\\n\\nSeat Pleasant, 743 F.3d 411, 420 (4th Cir. 2014) (“[I]t is the complaint . . . that provides\\n\\nfair notice to defendants of the allegations against them.” (internal quotation marks\\n\\nomitted)); cf. Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527, 543-49 (4th Cir. 2013)\\n\\n(evaluating alter ego allegations set forth in complaint under Federal Rule of Civil\\n\\nProcedure 12(b)(6)); Polo Fashions, 816 F.2d at 147 (noting that officer was named as a\\n\\ndefendant). The fact that the plaintiff might have prevailed had it chosen to bring a claim\\n\\nagainst Govindaraj personally, based on this or any other legal theory, did not relieve the\\n\\nplaintiff from complying with the basic requirements of due process. See Nelson, 529\\n\\nU.S. at 471 (“The law, at its most fundamental, does not render judgment simply because\\n\\na person might have been found liable had he been charged.” (citation omitted)).\\n\\n In fashioning the monetary relief in this case, the district court reasoned that\\n\\nGovindaraj’s egregious litigation conduct warranted the imposition of personal liability.\\n\\nWhile the district court’s frustration with Govindaraj’s years-long obstructionist behavior\\n\\n 12\\n\\fwas understandable, that behavior was not a valid basis for subjecting him to personal\\n\\nliability without satisfying due process requirements. Instead, such abusive litigation\\n\\npractices should be addressed through sanctions and the court’s contempt power. See\\n\\nFed. R. Civ. P. 37 (discussing availability of sanctions for “failure to make disclosures or\\n\\nto cooperate in discovery”); see generally Chambers v. NASCO, Inc., 501 U.S. 32 (1991)\\n\\n(discussing courts’ inherent contempt power that “extends to a full range of litigation\\n\\nabuses”). 7\\n\\n\\n\\n III.\\n\\n Govindaraj next challenges the district court’s order holding him in contempt of\\n\\ncourt. The district court based its contempt finding on Govindaraj’s failure to comply\\n\\nwith a January 2014 discovery order requiring him to sign release forms authorizing\\n\\naccess to his email accounts. In Govindaraj’s view, the discovery order was\\n\\n“insufficiently definite,” because the order did not specify the actual email accounts to\\n\\nwhich the order applied.\\n\\n We review for abuse of discretion the district court’s decision holding Govindaraj\\n\\nin contempt of court. Rainbow Sch., Inc. v. Rainbow Early Educ. Holding LLC, 887 F.3d\\n\\n610, 617 (4th Cir. 2018). Federal courts have the inherent power to order sanctions “to\\n\\npreserve the integrity of the judicial process” and to punish bad-faith conduct intended to\\n\\n 7\\n Based on our conclusion that the damages and fees award erroneously was\\nentered against Govindaraj personally, we do not reach his alternative argument that the\\ndistrict court erred in its calculation of the amount of reasonable attorneys’ fees under\\nRobinson v. Equifax Information Services, LLC, 560 F.3d 235 (4th Cir. 2009).\\n\\n 13\\n\\fdelay or disrupt the course of litigation or to impede enforcement of a court order. In re\\n\\nJemsek Clinic, P.A., 850 F.3d 150, 157 (4th Cir. 2017) (quoting Chambers, 501 U.S. at\\n\\n46). Under the Federal Rules of Civil Procedure, 8 a court may “treat[] as contempt of\\n\\ncourt the failure to obey” a court order by an officer or director of a party. 9 Fed. R. Civ.\\n\\nP. 37(b)(2)(A)(vii).\\n\\n A court’s contempt power, which reflects the court’s broad authority, cannot be\\n\\nexercised when there is “fair ground of doubt as to the wrongfulness of” the conduct in\\n\\nquestion. Taggart v. Lorenzen, 139 S. Ct. 1795, 1801 (2019) (citation and emphasis\\n\\nomitted); see also Gascho v. Glob. Fitness Holdings, LLC, 875 F.3d 795, 800 (6th Cir.\\n\\n2017) (contempt finding unwarranted if court’s decree was “too vague to be understood”\\n\\n(quoting Int’l Longshoremen’s Ass’n v. Phila. Marine Trade Ass’n, 389 U.S. 64, 76\\n\\n(1967))). Thus, a party must be able to discern from the language of a court’s order the\\n\\nactions necessary to comply with the court’s directive. See Taggart, 139 S. Ct. at 1802\\n\\n(“[P]rinciples of basic fairness require that those enjoined receive explicit notice of what\\n\\nconduct is outlawed before being held in civil contempt.” (citations, quotation marks, and\\n\\nbrackets omitted)); Gascho, 875 F.3d at 800 (contempt sanctions are “reserved for those\\n\\nwho fully understand the meaning of a court order and yet choose to ignore its mandate”\\n\\n\\n\\n\\n 8\\n The district court did not specify whether it imposed sanctions against\\nGovindaraj under the Federal Rules or under the court’s inherent contempt power.\\n 9\\n Govindaraj does not contest the court’s authority to impose sanctions on him as a\\nnon-party.\\n\\n 14\\n\\f(quoting Phila. Marine Trade Assoc., 389 U.S. at 76) (internal quotation marks and\\n\\nalterations omitted)).\\n\\n In the present case, the history of the discovery issues leading to the district\\n\\ncourt’s contempt finding are particularly revealing. After Govindaraj refused for months\\n\\nto comply with the plaintiff’s discovery requests, the magistrate judge ordered\\n\\nGovindaraj in October 2013 to “compile a list of all e-mail addresses he is currently\\n\\nusing and/or previously used. [Govindaraj] must affirm the list of e-mail addresses is the\\n\\nfull, correct and absolute list of all e-mail addresses he presently or previously used”\\n\\n(emphasis in original). In response to the magistrate judge’s order, Govindaraj provided\\n\\nonly four email addresses. However, the plaintiff independently discovered about two\\n\\ndozen email addresses under Govindaraj’s control.\\n\\n Three months later, in January 2014, after Govindaraj failed to provide the\\n\\nplaintiff with emails from all these accounts during discovery, the magistrate judge held a\\n\\ntelephone conference with the plaintiff’s representatives and Govindaraj. Following the\\n\\nconference, the magistrate judge issued the order Govindaraj now challenges (the\\n\\nchallenged order):\\n\\n [F]or the reasons stated during the telephone conference, [Govindaraj] is\\n hereby ORDERED to sign and execute “consent and release forms”\\n regarding various e-mail accounts within ten (10) days of Plaintiff’s\\n counsel providing the forms to [Govindaraj’s] counsel[.]\\n\\nGovindaraj filed objections to the magistrate judge’s order, which objections the district\\n\\ncourt overruled. Govindaraj nevertheless continued to refuse to sign the consent forms\\n\\nproduced by the plaintiff’s counsel. Based on this refusal, and after reviewing the\\n\\n\\n 15\\n\\fproposed consent forms, the district court held Govindaraj in contempt for failing to\\n\\ncomply with the challenged order. The court did not immediately impose sanctions for\\n\\nthe violation.\\n\\n Upon consideration of the challenged order, we conclude that its terms were not\\n\\nvague, and that the district court did not abuse its discretion in finding Govindaraj in\\n\\ncontempt of court. By the time that the magistrate judge entered the challenged order,\\n\\nGovindaraj was well aware that the court expected him to provide the plaintiff access to\\n\\n“all” the email accounts the court earlier had required him to identify. Although\\n\\nGovindaraj disagrees with the reasonableness of this requirement, that disagreement has\\n\\nno bearing on the question whether the terms of the challenged order adequately notified\\n\\nhim of the obligations imposed by the court. And given Govindaraj’s repeated disregard\\n\\nfor the discovery process, his assertion on appeal that his “actions bespeak good faith”\\n\\nlacks any basis in the record. See Taggart, 139 S. Ct. at 1802 (explaining that a\\n\\ncontemnor’s bad faith can justify imposition of sanctions).\\n\\n We therefore affirm the district court’s judgment holding Govindaraj in contempt\\n\\nfor violating the challenged order. However, the court did not specify whether any of the\\n\\ncombined damages and fees award was entered against Govindaraj personally as a\\n\\nsanction for his contempt. We thus are unable to determine whether any of the combined\\n\\ndamages and fees award should be upheld as a reasonable sanction for contempt, or\\n\\nwhether the entirety of the award against Govindaraj personally must be vacated. For\\n\\nthese reasons, although we affirm the district court’s decision to hold Govindaraj in\\n\\ncontempt, we remand the separate issue of sanctions to the district court for a\\n\\n 16\\n\\fdetermination whether any monetary sanctions for contempt were awarded against\\n\\nGovindaraj personally.\\n\\n\\n\\n IV.\\n\\n In sum, we affirm the district court’s contempt finding against Govindaraj, but we\\n\\nvacate the judgment for damages and attorneys’ fees entered against him. We remand for\\n\\nfurther proceedings for the court to determine whether any portion of the damages and\\n\\nfees award against Govindaraj was imposed as a sanction for his contempt of court and, if\\n\\nso, the amount of that sanction. The court may re-enter judgment against Govindaraj\\n\\npersonally only as to any such sanction for his contempt.\\n\\n\\n\\n AFFIRMED IN PART, VACATED IN PART, AND REMANDED\\n\\n\\n\\n\\n 17\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2958,"cells":{"id":{"kind":"number","value":4642927,"string":"4,642,927"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee, v. Omar VILLARREAL SILVA, A/K/A Nolberto Ruiz Trinidad, A/K/A Nolberto Trinidad Ruiz, Defendant - Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Omar Silva"},"decision_date":{"kind":"string","value":"2019-07-25"},"docket_number":{"kind":"string","value":"18-4652"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Niemeyer, Keenan, Quattlebaum\", \"parties\": \"\", \"opinions\": [{\"author\": \"NIEMEYER, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-4652\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nOMAR VILLARREAL SILVA, a/k/a Nolberto Ruiz Trinidad, a/k/a Nolberto\\nTrinidad Ruiz,\\n\\n Defendant - Appellant.\\n\\n\\nAppeal from the United States District Court for the Eastern District of Virginia, at\\nRichmond. M. Hannah Lauck, District Judge. (3:17-cr-00125-MHL-1)\\n\\n\\nArgued: May 9, 2019 Decided: July 25, 2019\\n\\n\\nBefore NIEMEYER, KEENAN, and QUATTLEBAUM, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge\\nKeenan and Judge Quattlebaum joined.\\n\\n\\nARGUED: Joseph Stephen Camden, OFFICE OF THE FEDERAL PUBLIC\\nDEFENDER, Richmond, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF\\nTHE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF:\\nGeremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC\\nDEFENDER, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States\\nAttorney, S. David Schiller, Assistant United States Attorney, OFFICE OF THE\\nUNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.\\n\\fNIEMEYER, Circuit Judge:\\n\\n Omar Villarreal Silva, a citizen of Mexico, was, during a traffic arrest on August\\n\\n6, 2017, found in the United States after having been removed following conviction for a\\n\\nfelony. A grand jury indicted him for violating 8 U.S.C. § 1326(a), (b)(1), which\\n\\npunishes “any alien who has been . . . removed . . . and thereafter . . . is at any time found\\n\\nin the United States” and which enhances the penalty when the “removal was subsequent\\n\\nto a conviction for . . . a felony.”\\n\\n Villarreal filed a motion to dismiss the indictment, challenging the validity of his\\n\\nunderlying removal, which was an element of the § 1326 offense. He contended that\\n\\nduring the removal, which was an expedited removal conducted under 8 U.S.C.\\n\\n§ 1225(b)(1)(A)(i), he was denied procedural due process and therefore that the removal\\n\\n“was fundamentally unfair.” 8 U.S.C. § 1326(d)(3). The district court observed that\\n\\nneither party had addressed the “relevance of 8 U.S.C. § 1225(b)(1)(D)” — which\\n\\nprovides that in a § 1326 prosecution, the court “shall not have jurisdiction to hear any\\n\\nclaim attacking the validity of an order of removal” issued under the expedited removal\\n\\nprovision — and requested briefing on the constitutionality of that section insofar as it\\n\\nprohibited any challenge to the validity of the removal element of Villarreal’s § 1326\\n\\nprosecution. Following briefing, the court held that § 1225(b)(1)(D) was unconstitutional\\n\\nand that Villarreal was entitled to a due process review of his prior expedited removal\\n\\norder. On conducting that review, however, the court held that Villarreal failed to\\n\\nestablish that the removal was fundamentally unfair and accordingly denied his motion to\\n\\ndismiss.\\n\\n 2\\n\\f Reserving review of the district court’s denial of his motion to dismiss, Villarreal\\n\\npleaded guilty, and the district court sentenced him to 21 months’ imprisonment.\\n\\n For the reasons that follow, we affirm.\\n\\n\\n I\\n\\n Villarreal has a long record of entering the United States illegally and committing\\n\\ncrimes while in the United States. On March 4 and March 14, 1998, and on March 18,\\n\\nJuly 26, and July 28, 1999, Villarreal was apprehended by U.S. Border Patrol agents,\\n\\nprocessed as a “voluntary return” rather than placed in removal proceedings or\\n\\nprosecuted, and returned to Mexico. In addition to those five illegal entries, Villarreal\\n\\nentered illegally at sometime thereafter for a sixth time, as he was arrested and\\n\\nsubsequently convicted on August 19, 2000, in Winston-Salem, North Carolina, for\\n\\ndischarging a firearm inside city limits. Several months later, he was again arrested in\\n\\nWinston-Salem for robbery with a dangerous weapon and resisting an officer and, on\\n\\nFebruary 10, 2001, was convicted of resisting arrest. On January 16, 2008, he was\\n\\nconvicted in Chesterfield County, Virginia, for driving while intoxicated and identity\\n\\ntheft. In 2009 and 2014, for a second and third time, he was again convicted in\\n\\nChesterfield County for driving while intoxicated. Following the third DWI conviction,\\n\\nVillarreal was removed to Mexico on September 11, 2014.\\n\\n Two months later, on November 20, 2014, Villarreal arrived at the border for\\n\\nadmission to the United States and presented another person’s passport card, falsely\\n\\nclaimed that the card was his, and falsely claimed that he was a United States citizen.\\n\\n\\n 3\\n\\fWhen the immigration officer discovered the fraud, Villarreal admitted that the passport\\n\\ncard was not his. This time, rather than permitting Villarreal to depart voluntarily, the\\n\\nofficer issued an expedited order of removal under 8 U.S.C. § 1225(b)(1)(A)(i) and\\n\\nreferred Villarreal to the U.S. Attorney for criminal prosecution. Villarreal was charged\\n\\nwith and convicted of violating 8 U.S.C. § 1326 (punishing aliens for attempted entry\\n\\nafter removal) and 18 U.S.C. § 1544 (punishing aliens for attempted entry with another’s\\n\\npassport). After serving 15 months’ imprisonment, he was removed to Mexico on\\n\\nDecember 23, 2015.\\n\\n For an eighth time, Villarreal illegally entered the United States at sometime after\\n\\n2015 and, on August 6, 2017, was arrested in Chesterfield County, Virginia, for DWI,\\n\\nobstruction of justice, and driving on a suspended or revoked license. This arrest led to\\n\\nVillarreal’s prosecution in this case for his violation of § 1326(a), (b)(1). For the removal\\n\\nelement of this violation, the government relied on Villarreal’s November 20, 2014\\n\\nexpedited removal.\\n\\n Villarreal filed a motion to dismiss the indictment, asserting the defense afforded\\n\\nunder § 1326(d) that his 2014 expedited removal “was fundamentally unfair” and\\n\\ntherefore could not be used to satisfy the removal element of his § 1326 offense. The\\n\\ndistrict court invited the parties to consider § 1225(b)(1)(D), which provides that “[i]n\\n\\nany action brought against an alien under . . . section 1326 of this title, the court shall not\\n\\nhave jurisdiction to hear any claim attacking the validity of an order of removal entered\\n\\nunder subparagraph (A)(i) [of § 1225(b)(1), the expedited removal provision].”\\n\\n(Emphasis added). After additional briefing, the court concluded, relying on United\\n\\n 4\\n\\fStates v. Mendoza-Lopez, 481 U.S. 828 (1987), that § 1225(b)(1)(D) was unconstitutional\\n\\ninsofar as it denied Villarreal the right to challenge his 2014 expedited removal, which\\n\\nwas an element of his § 1326 offense. The court then considered Villarreal’s challenge\\n\\non the merits and, applying § 1326(d)(3), concluded that the 2014 removal order was not\\n\\nfundamentally unfair because the alleged due process violation on which Villarreal relied\\n\\ndid not result in any prejudice.\\n\\n Villarreal then pleaded guilty, retaining the right to appeal the district court’s\\n\\ndenial of his motion to dismiss, and the district court sentenced him to 21 months’\\n\\nimprisonment.\\n\\n From the judgment against him dated August 27, 2018, Villarreal filed this appeal,\\n\\nchallenging the district court’s denial of his motion to dismiss the indictment.\\n\\n\\n II\\n\\n Villarreal contends that the removal order of November 20, 2014, that formed the\\n\\nbasis for his § 1326 conviction was “fundamentally unfair” and thus invalid under\\n\\n§ 1326(d). He argues, therefore, that his conviction must be set aside. Section 1326\\n\\nprovides that “any alien who . . . has been . . . removed . . . and thereafter . . . is at any\\n\\ntime found in the United States . . . shall be fined . . . or imprisoned . . . or both.” 8\\n\\nU.S.C. § 1326(a) (emphasis added). Villarreal asserts that in issuing the expedited\\n\\nremoval order under § 1225(b)(1)(A)(i), the immigration officer failed to provide him\\n\\nwith procedural due process.\\n\\n\\n\\n\\n 5\\n\\f To address Villarreal’s argument, the district court found it necessary to consider\\n\\n§ 1225(b)(1)(D), which strips courts of jurisdiction in proceedings under § 1326 “to hear\\n\\nany claim attacking the validity of an order of removal” entered under the expedited\\n\\nremoval provision of § 1225(b)(1)(A)(i). After receiving additional briefing, the court\\n\\nheld that § 1225(b)(1)(D) was unconstitutional under United States v. Mendoza-Lopez,\\n\\n481 U.S. 828 (1987), and then considered and rejected Villarreal’s attack on the validity\\n\\nof his expedited removal order.\\n\\n Because § 1225(b)(1)(D) purports to strip both the district court and this court of\\n\\njurisdiction to hear Villarreal’s attack on the 2014 expedited removal order entered under\\n\\n§ 1225(b)(1)(A)(i), we too conclude that we cannot consider Villarreal’s arguments\\n\\nbefore determining the effect of § 1225(b)(1)(D). See Steel Co. v. Citizens for a Better\\n\\nEnv’t, 523 U.S. 83, 94–95 (1988).\\n\\n Section 1225(b)(1)(A)(i) requires immigration officers to issue an expedited order\\n\\nof removal to any alien arriving at the border of the United States if the officer\\n\\ndetermines that the alien is inadmissible because he was seeking admission by fraudulent\\n\\nor willful misrepresentations or without valid entry and travel documents. The order\\n\\nmust be entered “without further hearing or review,” unless the alien is seeking asylum or\\n\\nindicates a fear of persecution. 8 U.S.C. § 1225(b)(1)(A)(i). Because Villarreal met the\\n\\ncriteria for expedited removal, the immigration officer ordered him removed without\\n\\nfurther hearing or review.\\n\\n When focusing on § 1225(b)(1)(A)(i) alone, it is well established that Congress is\\n\\nconstitutionally authorized to provide for expedited removals without review. As the\\n\\n 6\\n\\fSupreme Court has explained, “an alien seeking initial admission to the United States\\n\\nrequests a privilege and has no constitutional rights regarding his admission, for the\\n\\npower to admit or exclude aliens is a sovereign prerogative.” Landon v. Plasencia, 459\\n\\nU.S. 21, 32 (1982) (citing United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542\\n\\n(1950), and Nishimura Ekiu v. United States, 142 U.S. 651, 659–60 (1892)).\\n\\nAccordingly, “[w]hatever the procedure authorized by Congress is, it is due process as far\\n\\nas an alien denied entry is concerned.” Knauff, 338 U.S at 544; see also Zadvyas v.\\n\\nDavis, 533 U.S. 678, 693 (2001).\\n\\n But the issue in this case is not whether expedited removal is constitutional but\\n\\nwhether an alien can challenge an expedited removal when the government later uses that\\n\\nremoval as a basis for a criminal prosecution under § 1326. Even though the removal\\n\\nthus becomes an element of the § 1326 criminal offense, § 1225(b)(1)(D) provides that a\\n\\ncourt in a § 1326 prosecution lacks jurisdiction to hear a claim attacking the validity of\\n\\nthe removal when it was an expedited removal.\\n\\n We conclude that when an expedited removal is alleged to be an element in a\\n\\ncriminal prosecution, the defendant in that prosecution must, as a matter of due process,\\n\\nbe able to challenge the element — i.e., to contend that the removal was invalid — if he\\n\\ndid not have a prior opportunity to do so. Because the rules attendant to expedited\\n\\nremoval preclude review of the removal order, the defendant in a § 1326 prosecution\\n\\npremised on an expedited removal order under § 1225(b)(1)(A)(i) must be given the\\n\\nopportunity in the § 1326 prosecution to challenge the validity of that order. And\\n\\nbecause § 1225(b)(1)(D) strips courts in § 1326 prosecutions from hearing a defendant’s\\n\\n 7\\n\\fchallenge to an expedited removal element, we conclude that this jurisdiction-stripping\\n\\nprovision is unconstitutional. See Mendoza-Lopez, 481 U.S. 837–39.\\n\\n In Mendoza-Lopez, the Supreme Court concluded that when a “statute envisions\\n\\nthat a court may impose a criminal penalty for reentry after any deportation, regardless of\\n\\nhow violative of the rights of the alien the deportation proceeding may have been, the\\n\\nstatute does not comport with the constitutional requirement of due process.” 481 U.S. at\\n\\n837. It explained that “where a determination made in an administrative proceeding is to\\n\\nplay a critical role in the subsequent imposition of a criminal sanction, there must be\\n\\nsome meaningful review of the administrative proceeding.” Id. at 837–38 (emphasis\\n\\nadded). Addressing the version of § 1326 in effect at the time, the Court held that “where\\n\\nthe defects in an administrative proceeding foreclose judicial review of that proceeding,\\n\\nan alternative means of obtaining judicial review must be made available before the\\n\\nadministrative order may be used to establish conclusively an element of a criminal\\n\\noffense.” Id. at 838 (emphasis added). Stated otherwise, “[d]epriving an alien of the\\n\\nright to have the disposition in a deportation hearing reviewed in a judicial forum\\n\\nrequires, at a minimum, that review be made available in any subsequent proceeding in\\n\\nwhich the result of the deportation proceeding is used to establish an element of a\\n\\ncriminal offense.” Id. at 839.\\n\\n The government contends that the district court erred in finding § 1225(b)(1)(D)\\n\\nunconstitutional under Mendoza-Lopez for two distinct reasons. First, it contends that we\\n\\nneed not address the constitutionality of § 1225(b)(1)(D) because the alleged\\n\\nconstitutional violation during the November 20, 2014 removal proceeding, about which\\n\\n 8\\n\\fVillarreal complains, was harmless. Second, it seeks to distinguish the holding of\\n\\nMendoza-Lopez, thus arguing that § 1225(b)(1)(D) is constitutional and by its plain terms\\n\\nprecludes Villarreal’s attack on his prior removal. Alternatively, it argues that even if\\n\\n§ 1225(b)(1)(D) were unconstitutional, Villarreal’s claims attacking his removal\\n\\nproceeding fail under the standards for the defense afforded him under § 1326(d).\\n\\n On its first contention, the government argues that neither the district court nor this\\n\\ncourt needs to reach the constitutionality of § 1225(b)(1)(D) because any due process\\n\\nviolation in the 2014 removal proceeding was harmless. But in considering\\n\\nharmlessness, we would still have to consider the nature of Villarreal’s challenge to his\\n\\n2014 removal, the strength of his arguments, and the consequences of the challenged\\n\\nconduct. It would be impossible for a court to consider the harm of a constitutional\\n\\nviolation without considering its impact on the defendant. Thus, a finding that we have\\n\\njurisdiction would have to precede any effort by us to consider the harm or lack thereof of\\n\\nthe alleged due process violation.\\n\\n Focusing specifically on the district court’s finding of unconstitutionality, the\\n\\ngovernment argues that because Congress had authority to adopt expedited removal at the\\n\\nNation’s borders, it also could constitutionally bar direct review of such removal orders.\\n\\nBut that is not disputed, and we agree with that proposition as far as it goes. Rather, the\\n\\ndispute here concerns whether a defendant in a later criminal prosecution that relies on\\n\\nan expedited removal as an element can attack the validity of that element. Because that\\n\\ninquiry takes us to the holding of Mendoza-Lopez, the government attempts to limit the\\n\\napplication of Mendoza-Lopez by noting that the defendants removed in Mendoza-Lopez\\n\\n 9\\n\\fhad already entered the country and were not aliens attempting to enter at the border. See\\n\\n481 U.S. at 830. The force of that distinction, however, goes only to the question of\\n\\nwhether Congress had the power to authorize expedited removal for aliens at the border\\n\\nand does not explain why a defendant who was formerly detained at the border would\\n\\nnot need to be able to challenge the elements of a § 1326 criminal prosecution that is\\n\\nlater initiated in the United States. Under the principles announced by Mendoza-Lopez,\\n\\nremoval — of whatever kind — when made an element of a criminal offense must be\\n\\nsubject to some meaningful review, either administratively or during the subsequent\\n\\nprosecution. And while administrative and court reviews can undoubtedly be denied for\\n\\nexpedited removals at the border, some meaningful review of such a removal cannot be\\n\\ndenied when the government chooses to elevate the fact of removal to become an element\\n\\nof a criminal offense. In this case, Mendoza-Lopez requires that the defendant have the\\n\\nright to challenge each element, including the validity of the underlying removal, when\\n\\nhe has not had a prior opportunity to do so. “Depriving an alien of the right to have the\\n\\ndisposition in a deportation hearing reviewed in the judicial forum requires . . . that\\n\\nreview be made available in any subsequent proceeding in which the result of the\\n\\ndeportation proceeding is used to establish an element of a criminal offense.” Mendoza-\\n\\nLopez, 481 U.S. at 839 (emphasis added).\\n\\n Additionally, the government argues that the standards for reviewing removals\\n\\nincluded in § 1326(d) somehow redeem any flaw created by § 1225(b)(1)(D). But this\\n\\nargument fails to recognize the operation of the two provisions, which serve distinct\\n\\nroles. Section 1326(d) provides standards for review of all removal orders used as\\n\\n 10\\n\\felements to prosecute § 1326 violations, whereas § 1225(b)(1)(D) prohibits review of\\n\\nonly a subclass of those removal orders that are known as expedited removal orders.\\n\\nWhen an expedited removal forms the basis of a § 1326 prosecution, § 1225(b)(1)(D)\\n\\nprecludes a court from reviewing the validity of the removal. Thus, while § 1326(d)\\n\\nprovides general standards for challenging removals that form the basis of a § 1326\\n\\nprosecution, § 1225(b)(1)(D) purports to carve out expedited removals from the operation\\n\\nof § 1326(d).\\n\\n Because § 1225(b)(1)(D) prohibits Villarreal from challenging the validity of the\\n\\nremoval order that forms the basis — an element — of the § 1326 offense being\\n\\nprosecuted, it denies him due process. Accordingly, we conclude, as did the district\\n\\ncourt, that the provision is unconstitutional as it operates in the circumstances of this\\n\\ncase. See United States v. Barajas-Alvarado, 655 F.3d 1077, 1087 (9th Cir. 2011)\\n\\n(holding § 1225(b)(1)(D) unconstitutional to the extent it bars review of an expedited\\n\\nremoval order in a § 1326 prosecution). But cf. United States v. Lopez-Vasquez, 227 F.3d\\n\\n476, 486 (5th Cir. 2000) (holding that it was unnecessary to address the constitutionality\\n\\nof § 1225(b)(1)(D) because the alien suffered no prejudice from the allegedly illegal\\n\\nremoval).\\n\\n\\n III\\n\\n On the merits of his challenge to the validity of his expedited removal order of\\n\\nNovember 20, 2014, Villarreal contends that the procedures were “fundamentally unfair”\\n\\nand therefore that his § 1326 conviction, which relied on that removal order, cannot\\n\\n\\n 11\\n\\fstand. 8 U.S.C. § 1326(d)(3); see also Mendoza-Lopez, 481 U.S. at 839–40. He asserts\\n\\nthat after he arrived at the border and the immigration officer discovered that he was\\n\\nusing another person’s passport card, a fraudulent identity, and falsely claimed\\n\\ncitizenship, the officer advised him of the right to have counsel, which he invoked, thus\\n\\n“cut[ting] off communication” and precluding his participation in the expedited removal\\n\\nproceeding. He argues that in this manner, he was “forced to choose between two non-\\n\\nexclusive constitutional rights.” He also argues that as a result, he was prejudiced\\n\\n“because absent the procedural violation, there was a reasonable probability the officers\\n\\nwould have granted statutory relief in the form of withdrawal” of his application for\\n\\nadmission under 8 U.S.C. § 1225(a)(4).\\n\\n To demonstrate that a removal order used in a § 1326 criminal prosecution is\\n\\n“fundamentally unfair,” the defendant must show, first, a violation of his due process\\n\\nrights and, second, prejudice caused by the violation. United States v. El Shami, 434 F.3d\\n\\n659, 664 (4th Cir. 2005); United States v. Wilson, 316 F.3d 506, 510 (4th Cir. 2003).\\n\\nAnd, to establish prejudice, the defendant must show that, “but for the errors complained\\n\\nof, there was a reasonable probability that he would not have been deported.” El Shami,\\n\\n434 F.3d at 665; Wilson, 316 F.3d at 511.\\n\\n In this case, when the immigration officer discovered that Villarreal’s admission to\\n\\nthe United States on November 20, 2014, was being sought by fraud, the officer advised\\n\\nVillarreal of his Miranda rights in light of a potential criminal prosecution. Villarreal\\n\\nalso became subject to the expedited removal procedure under § 1225(b)(1)(A)(i). That\\n\\nsection provides that if an immigration officer determines that an alien arriving at the\\n\\n 12\\n\\fborder is inadmissible under § 1182(a)(6)(C) (for (i) seeking admission “by fraud or\\n\\nwillfully misrepresenting a material fact” or (ii) falsely representing himself to be a\\n\\ncitizen) or under § 1182(a)(7) (for not being in possession of valid entry documents and\\n\\npassports or travel documents), “the officer shall order the alien removed from the United\\n\\nStates without further hearing or review unless the alien indicates either an intention to\\n\\napply for asylum . . . or a fear of persecution.” 8 U.S.C. § 1225(b)(1)(A)(i). Under this\\n\\nabbreviated process, the immigration officer advises the alien of his determination and\\n\\nprovides the alien “an opportunity to respond.” 8 C.F.R. § 235.3(b)(2)(i). Villarreal\\n\\nnotes that after he had invoked his right to counsel, he could not respond to the\\n\\nimmigration officer’s determination and contends therefore that it was the conflict\\n\\nbetween exercising his right to counsel and his right to participate in this expedited\\n\\nremoval proceeding that violated his due process rights.\\n\\n The district court declined to address Villarreal’s procedural due process\\n\\nargument, reasoning that because Villarreal could not “demonstrate prejudice that could\\n\\nhave resulted from” the violation, he had failed to establish that the expedited removal\\n\\nprocedure was fundamentally unfair. We agree.\\n\\n To show prejudice, Villarreal argues that, but for the alleged due process violation,\\n\\n“there was a reasonable probability the officers would have granted [him] statutory relief\\n\\nin the form of withdrawal” of admission under 8 U.S.C. § 1225(a)(4), which provides that\\n\\n“[a]n alien applying for admission may, in the discretion of the Attorney General and at\\n\\nany time, be permitted to withdraw the application for admission and depart immediately\\n\\nfrom the United States.” Such relief would have displaced the expedited removal order,\\n\\n 13\\n\\fwhich was an essential element of his § 1326 violation. But, as the district court\\n\\nconcluded, Villarreal’s attempt to show prejudice fails.\\n\\n First, Villarreal presented nothing to establish that he would have requested a\\n\\n§ 1225(a)(4) withdrawal had he responded to the immigration officer. Indeed, the district\\n\\ncourt observed that Villarreal submitted no evidence, or even argument, that he knew of\\n\\nhis ability to request withdrawal of his application, and there was no requirement that he\\n\\nbe so advised.\\n\\n Second, withdrawal of admission under § 1225(a)(4) is granted “in the discretion\\n\\nof the Attorney General” (emphasis added), and numerous factors suggest that the\\n\\nAttorney General would not have exercised his discretion in Villarreal’s favor. As of the\\n\\ntime of his removal, Villarreal had seven criminal convictions — six misdemeanors and\\n\\none felony. In addition, Villarreal had been deported only shortly before his November\\n\\n20, 2014 attempted entry. Moreover, before that removal, Villarreal had five times been\\n\\nallowed to return to Mexico voluntarily after entering illegally. And Villarreal’s most\\n\\nrecent attempt to enter the country in 2014 was accompanied by fraud, including his use\\n\\nof someone else’s passport card, his misidentification of himself, and his representation\\n\\nthat he was a citizen. But perhaps most indicative was the fact that the immigration\\n\\nofficer, to whom Villarreal would have requested withdrawal, exercised his discretion to\\n\\nrefer Villarreal to the U.S. Attorney for criminal prosecution. The officer would not have\\n\\nmade that recommendation if he were inclined to exercise discretion to let Villarreal\\n\\nvoluntarily withdraw his admission application under § 1225(a)(4).\\n\\n\\n\\n 14\\n\\f Despite these facts, which strongly indicate that the Attorney General would not\\n\\nhave exercised his discretion favorably with respect to any request by Villarreal for\\n\\nwithdrawal under § 1225(a)(4), Villarreal presented the district court with an anonymous\\n\\ndocument indicating that withdrawal had been granted to an alien in circumstances\\n\\npurportedly similar to those of Villarreal. But, as the district court pointed out, the\\n\\ncircumstances of the posited comparator were substantially different in that, for example,\\n\\nhe had only one criminal conviction, while Villarreal had seven.\\n\\n In sum, because Villarreal did not sufficiently demonstrate a reasonable\\n\\nprobability that the Attorney General would have allowed him to withdraw his\\n\\napplication for admission under § 1225(a)(4), he failed to show prejudice, as required to\\n\\ndemonstrate that his removal was fundamentally unfair. Accordingly, Villarreal’s\\n\\nconviction under § 1326 based on his November 20, 2014 expedited removal is affirmed.\\n\\n AFFIRMED\\n\\n\\n\\n\\n 15\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4420180/\", \"author_raw\": \"NIEMEYER, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"NIEMEYER"},"judge2":{"kind":"string","value":"KEENAN"},"judge3":{"kind":"string","value":"QUATTLEBAUM"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4642927/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Omar VILLARREAL SILVA, A/K/A Nolberto Ruiz Trinidad, A/K/A Nolberto Trinidad Ruiz, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-07-25\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-4652\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nOMAR VILLARREAL SILVA, a/k/a Nolberto Ruiz Trinidad, a/k/a Nolberto\nTrinidad Ruiz,\n\n Defendant - Appellant.\n\n\nAppeal from the United States District Court for the Eastern District of Virginia, at\nRichmond. M. Hannah Lauck, District Judge. (3:17-cr-00125-MHL-1)\n\n\nArgued: May 9, 2019 Decided: July 25, 2019\n\n\nBefore NIEMEYER, KEENAN, and QUATTLEBAUM, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge\nKeenan and Judge Quattlebaum joined.\n\n\nARGUED: Joseph Stephen Camden, OFFICE OF THE FEDERAL PUBLIC\nDEFENDER, Richmond, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF\nTHE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF:\nGeremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC\nDEFENDER, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States\nAttorney, S. David Schiller, Assistant United States Attorney, OFFICE OF THE\nUNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.\n\fNIEMEYER, Circuit Judge:\n\n Omar Villarreal Silva, a citizen of Mexico, was, during a traffic arrest on August\n\n6, 2017, found in the United States after having been removed following conviction for a\n\nfelony. A grand jury indicted him for violating 8 U.S.C. § 1326(a), (b)(1), which\n\npunishes “any alien who has been . . . removed . . . and thereafter . . . is at any time found\n\nin the United States” and which enhances the penalty when the “removal was subsequent\n\nto a conviction for . . . a felony.”\n\n Villarreal filed a motion to dismiss the indictment, challenging the validity of his\n\nunderlying removal, which was an element of the § 1326 offense. He contended that\n\nduring the removal, which was an expedited removal conducted under 8 U.S.C.\n\n§ 1225(b)(1)(A)(i), he was denied procedural due process and therefore that the removal\n\n“was fundamentally unfair.” 8 U.S.C. § 1326(d)(3). The district court observed that\n\nneither party had addressed the “relevance of 8 U.S.C. § 1225(b)(1)(D)” — which\n\nprovides that in a § 1326 prosecution, the court “shall not have jurisdiction to hear any\n\nclaim attacking the validity of an order of removal” issued under the expedited removal\n\nprovision — and requested briefing on the constitutionality of that section insofar as it\n\nprohibited any challenge to the validity of the removal element of Villarreal’s § 1326\n\nprosecution. Following briefing, the court held that § 1225(b)(1)(D) was unconstitutional\n\nand that Villarreal was entitled to a due process review of his prior expedited removal\n\norder. On conducting that review, however, the court held that Villarreal failed to\n\nestablish that the removal was fundamentally unfair and accordingly denied his motion to\n\ndismiss.\n\n 2\n\f Reserving review of the district court’s denial of his motion to dismiss, Villarreal\n\npleaded guilty, and the district court sentenced him to 21 months’ imprisonment.\n\n For the reasons that follow, we affirm.\n\n\n I\n\n Villarreal has a long record of entering the United States illegally and committing\n\ncrimes while in the United States. On March 4 and March 14, 1998, and on March 18,\n\nJuly 26, and July 28, 1999, Villarreal was apprehended by U.S. Border Patrol agents,\n\nprocessed as a “voluntary return” rather than placed in removal proceedings or\n\nprosecuted, and returned to Mexico. In addition to those five illegal entries, Villarreal\n\nentered illegally at sometime thereafter for a sixth time, as he was arrested and\n\nsubsequently convicted on August 19, 2000, in Winston-Salem, North Carolina, for\n\ndischarging a firearm inside city limits. Several months later, he was again arrested in\n\nWinston-Salem for robbery with a dangerous weapon and resisting an officer and, on\n\nFebruary 10, 2001, was convicted of resisting arrest. On January 16, 2008, he was\n\nconvicted in Chesterfield County, Virginia, for driving while intoxicated and identity\n\ntheft. In 2009 and 2014, for a second and third time, he was again convicted in\n\nChesterfield County for driving while intoxicated. Following the third DWI conviction,\n\nVillarreal was removed to Mexico on September 11, 2014.\n\n Two months later, on November 20, 2014, Villarreal arrived at the border for\n\nadmission to the United States and presented another person’s passport card, falsely\n\nclaimed that the card was his, and falsely claimed that he was a United States citizen.\n\n\n 3\n\fWhen the immigration officer discovered the fraud, Villarreal admitted that the passport\n\ncard was not his. This time, rather than permitting Villarreal to depart voluntarily, the\n\nofficer issued an expedited order of removal under 8 U.S.C. § 1225(b)(1)(A)(i) and\n\nreferred Villarreal to the U.S. Attorney for criminal prosecution. Villarreal was charged\n\nwith and convicted of violating 8 U.S.C. § 1326 (punishing aliens for attempted entry\n\nafter removal) and 18 U.S.C. § 1544 (punishing aliens for attempted entry with another’s\n\npassport). After serving 15 months’ imprisonment, he was removed to Mexico on\n\nDecember 23, 2015.\n\n For an eighth time, Villarreal illegally entered the United States at sometime after\n\n2015 and, on August 6, 2017, was arrested in Chesterfield County, Virginia, for DWI,\n\nobstruction of justice, and driving on a suspended or revoked license. This arrest led to\n\nVillarreal’s prosecution in this case for his violation of § 1326(a), (b)(1). For the removal\n\nelement of this violation, the government relied on Villarreal’s November 20, 2014\n\nexpedited removal.\n\n Villarreal filed a motion to dismiss the indictment, asserting the defense afforded\n\nunder § 1326(d) that his 2014 expedited removal “was fundamentally unfair” and\n\ntherefore could not be used to satisfy the removal element of his § 1326 offense. The\n\ndistrict court invited the parties to consider § 1225(b)(1)(D), which provides that “[i]n\n\nany action brought against an alien under . . . section 1326 of this title, the court shall not\n\nhave jurisdiction to hear any claim attacking the validity of an order of removal entered\n\nunder subparagraph (A)(i) [of § 1225(b)(1), the expedited removal provision].”\n\n(Emphasis added). After additional briefing, the court concluded, relying on United\n\n 4\n\fStates v. Mendoza-Lopez, 481 U.S. 828 (1987), that § 1225(b)(1)(D) was unconstitutional\n\ninsofar as it denied Villarreal the right to challenge his 2014 expedited removal, which\n\nwas an element of his § 1326 offense. The court then considered Villarreal’s challenge\n\non the merits and, applying § 1326(d)(3), concluded that the 2014 removal order was not\n\nfundamentally unfair because the alleged due process violation on which Villarreal relied\n\ndid not result in any prejudice.\n\n Villarreal then pleaded guilty, retaining the right to appeal the district court’s\n\ndenial of his motion to dismiss, and the district court sentenced him to 21 months’\n\nimprisonment.\n\n From the judgment against him dated August 27, 2018, Villarreal filed this appeal,\n\nchallenging the district court’s denial of his motion to dismiss the indictment.\n\n\n II\n\n Villarreal contends that the removal order of November 20, 2014, that formed the\n\nbasis for his § 1326 conviction was “fundamentally unfair” and thus invalid under\n\n§ 1326(d). He argues, therefore, that his conviction must be set aside. Section 1326\n\nprovides that “any alien who . . . has been . . . removed . . . and thereafter . . . is at any\n\ntime found in the United States . . . shall be fined . . . or imprisoned . . . or both.” 8\n\nU.S.C. § 1326(a) (emphasis added). Villarreal asserts that in issuing the expedited\n\nremoval order under § 1225(b)(1)(A)(i), the immigration officer failed to provide him\n\nwith procedural due process.\n\n\n\n\n 5\n\f To address Villarreal’s argument, the district court found it necessary to consider\n\n§ 1225(b)(1)(D), which strips courts of jurisdiction in proceedings under § 1326 “to hear\n\nany claim attacking the validity of an order of removal” entered under the expedited\n\nremoval provision of § 1225(b)(1)(A)(i). After receiving additional briefing, the court\n\nheld that § 1225(b)(1)(D) was unconstitutional under United States v. Mendoza-Lopez,\n\n481 U.S. 828 (1987), and then considered and rejected Villarreal’s attack on the validity\n\nof his expedited removal order.\n\n Because § 1225(b)(1)(D) purports to strip both the district court and this court of\n\njurisdiction to hear Villarreal’s attack on the 2014 expedited removal order entered under\n\n§ 1225(b)(1)(A)(i), we too conclude that we cannot consider Villarreal’s arguments\n\nbefore determining the effect of § 1225(b)(1)(D). See Steel Co. v. Citizens for a Better\n\nEnv’t, 523 U.S. 83, 94–95 (1988).\n\n Section 1225(b)(1)(A)(i) requires immigration officers to issue an expedited order\n\nof removal to any alien arriving at the border of the United States if the officer\n\ndetermines that the alien is inadmissible because he was seeking admission by fraudulent\n\nor willful misrepresentations or without valid entry and travel documents. The order\n\nmust be entered “without further hearing or review,” unless the alien is seeking asylum or\n\nindicates a fear of persecution. 8 U.S.C. § 1225(b)(1)(A)(i). Because Villarreal met the\n\ncriteria for expedited removal, the immigration officer ordered him removed without\n\nfurther hearing or review.\n\n When focusing on § 1225(b)(1)(A)(i) alone, it is well established that Congress is\n\nconstitutionally authorized to provide for expedited removals without review. As the\n\n 6\n\fSupreme Court has explained, “an alien seeking initial admission to the United States\n\nrequests a privilege and has no constitutional rights regarding his admission, for the\n\npower to admit or exclude aliens is a sovereign prerogative.” Landon v. Plasencia, 459\n\nU.S. 21, 32 (1982) (citing United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542\n\n(1950), and Nishimura Ekiu v. United States, 142 U.S. 651, 659–60 (1892)).\n\nAccordingly, “[w]hatever the procedure authorized by Congress is, it is due process as far\n\nas an alien denied entry is concerned.” Knauff, 338 U.S at 544; see also Zadvyas v.\n\nDavis, 533 U.S. 678, 693 (2001).\n\n But the issue in this case is not whether expedited removal is constitutional but\n\nwhether an alien can challenge an expedited removal when the government later uses that\n\nremoval as a basis for a criminal prosecution under § 1326. Even though the removal\n\nthus becomes an element of the § 1326 criminal offense, § 1225(b)(1)(D) provides that a\n\ncourt in a § 1326 prosecution lacks jurisdiction to hear a claim attacking the validity of\n\nthe removal when it was an expedited removal.\n\n We conclude that when an expedited removal is alleged to be an element in a\n\ncriminal prosecution, the defendant in that prosecution must, as a matter of due process,\n\nbe able to challenge the element — i.e., to contend that the removal was invalid — if he\n\ndid not have a prior opportunity to do so. Because the rules attendant to expedited\n\nremoval preclude review of the removal order, the defendant in a § 1326 prosecution\n\npremised on an expedited removal order under § 1225(b)(1)(A)(i) must be given the\n\nopportunity in the § 1326 prosecution to challenge the validity of that order. And\n\nbecause § 1225(b)(1)(D) strips courts in § 1326 prosecutions from hearing a defendant’s\n\n 7\n\fchallenge to an expedited removal element, we conclude that this jurisdiction-stripping\n\nprovision is unconstitutional. See Mendoza-Lopez, 481 U.S. 837–39.\n\n In Mendoza-Lopez, the Supreme Court concluded that when a “statute envisions\n\nthat a court may impose a criminal penalty for reentry after any deportation, regardless of\n\nhow violative of the rights of the alien the deportation proceeding may have been, the\n\nstatute does not comport with the constitutional requirement of due process.” 481 U.S. at\n\n837. It explained that “where a determination made in an administrative proceeding is to\n\nplay a critical role in the subsequent imposition of a criminal sanction, there must be\n\nsome meaningful review of the administrative proceeding.” Id. at 837–38 (emphasis\n\nadded). Addressing the version of § 1326 in effect at the time, the Court held that “where\n\nthe defects in an administrative proceeding foreclose judicial review of that proceeding,\n\nan alternative means of obtaining judicial review must be made available before the\n\nadministrative order may be used to establish conclusively an element of a criminal\n\noffense.” Id. at 838 (emphasis added). Stated otherwise, “[d]epriving an alien of the\n\nright to have the disposition in a deportation hearing reviewed in a judicial forum\n\nrequires, at a minimum, that review be made available in any subsequent proceeding in\n\nwhich the result of the deportation proceeding is used to establish an element of a\n\ncriminal offense.” Id. at 839.\n\n The government contends that the district court erred in finding § 1225(b)(1)(D)\n\nunconstitutional under Mendoza-Lopez for two distinct reasons. First, it contends that we\n\nneed not address the constitutionality of § 1225(b)(1)(D) because the alleged\n\nconstitutional violation during the November 20, 2014 removal proceeding, about which\n\n 8\n\fVillarreal complains, was harmless. Second, it seeks to distinguish the holding of\n\nMendoza-Lopez, thus arguing that § 1225(b)(1)(D) is constitutional and by its plain terms\n\nprecludes Villarreal’s attack on his prior removal. Alternatively, it argues that even if\n\n§ 1225(b)(1)(D) were unconstitutional, Villarreal’s claims attacking his removal\n\nproceeding fail under the standards for the defense afforded him under § 1326(d).\n\n On its first contention, the government argues that neither the district court nor this\n\ncourt needs to reach the constitutionality of § 1225(b)(1)(D) because any due process\n\nviolation in the 2014 removal proceeding was harmless. But in considering\n\nharmlessness, we would still have to consider the nature of Villarreal’s challenge to his\n\n2014 removal, the strength of his arguments, and the consequences of the challenged\n\nconduct. It would be impossible for a court to consider the harm of a constitutional\n\nviolation without considering its impact on the defendant. Thus, a finding that we have\n\njurisdiction would have to precede any effort by us to consider the harm or lack thereof of\n\nthe alleged due process violation.\n\n Focusing specifically on the district court’s finding of unconstitutionality, the\n\ngovernment argues that because Congress had authority to adopt expedited removal at the\n\nNation’s borders, it also could constitutionally bar direct review of such removal orders.\n\nBut that is not disputed, and we agree with that proposition as far as it goes. Rather, the\n\ndispute here concerns whether a defendant in a later criminal prosecution that relies on\n\nan expedited removal as an element can attack the validity of that element. Because that\n\ninquiry takes us to the holding of Mendoza-Lopez, the government attempts to limit the\n\napplication of Mendoza-Lopez by noting that the defendants removed in Mendoza-Lopez\n\n 9\n\fhad already entered the country and were not aliens attempting to enter at the border. See\n\n481 U.S. at 830. The force of that distinction, however, goes only to the question of\n\nwhether Congress had the power to authorize expedited removal for aliens at the border\n\nand does not explain why a defendant who was formerly detained at the border would\n\nnot need to be able to challenge the elements of a § 1326 criminal prosecution that is\n\nlater initiated in the United States. Under the principles announced by Mendoza-Lopez,\n\nremoval — of whatever kind — when made an element of a criminal offense must be\n\nsubject to some meaningful review, either administratively or during the subsequent\n\nprosecution. And while administrative and court reviews can undoubtedly be denied for\n\nexpedited removals at the border, some meaningful review of such a removal cannot be\n\ndenied when the government chooses to elevate the fact of removal to become an element\n\nof a criminal offense. In this case, Mendoza-Lopez requires that the defendant have the\n\nright to challenge each element, including the validity of the underlying removal, when\n\nhe has not had a prior opportunity to do so. “Depriving an alien of the right to have the\n\ndisposition in a deportation hearing reviewed in the judicial forum requires . . . that\n\nreview be made available in any subsequent proceeding in which the result of the\n\ndeportation proceeding is used to establish an element of a criminal offense.” Mendoza-\n\nLopez, 481 U.S. at 839 (emphasis added).\n\n Additionally, the government argues that the standards for reviewing removals\n\nincluded in § 1326(d) somehow redeem any flaw created by § 1225(b)(1)(D). But this\n\nargument fails to recognize the operation of the two provisions, which serve distinct\n\nroles. Section 1326(d) provides standards for review of all removal orders used as\n\n 10\n\felements to prosecute § 1326 violations, whereas § 1225(b)(1)(D) prohibits review of\n\nonly a subclass of those removal orders that are known as expedited removal orders.\n\nWhen an expedited removal forms the basis of a § 1326 prosecution, § 1225(b)(1)(D)\n\nprecludes a court from reviewing the validity of the removal. Thus, while § 1326(d)\n\nprovides general standards for challenging removals that form the basis of a § 1326\n\nprosecution, § 1225(b)(1)(D) purports to carve out expedited removals from the operation\n\nof § 1326(d).\n\n Because § 1225(b)(1)(D) prohibits Villarreal from challenging the validity of the\n\nremoval order that forms the basis — an element — of the § 1326 offense being\n\nprosecuted, it denies him due process. Accordingly, we conclude, as did the district\n\ncourt, that the provision is unconstitutional as it operates in the circumstances of this\n\ncase. See United States v. Barajas-Alvarado, 655 F.3d 1077, 1087 (9th Cir. 2011)\n\n(holding § 1225(b)(1)(D) unconstitutional to the extent it bars review of an expedited\n\nremoval order in a § 1326 prosecution). But cf. United States v. Lopez-Vasquez, 227 F.3d\n\n476, 486 (5th Cir. 2000) (holding that it was unnecessary to address the constitutionality\n\nof § 1225(b)(1)(D) because the alien suffered no prejudice from the allegedly illegal\n\nremoval).\n\n\n III\n\n On the merits of his challenge to the validity of his expedited removal order of\n\nNovember 20, 2014, Villarreal contends that the procedures were “fundamentally unfair”\n\nand therefore that his § 1326 conviction, which relied on that removal order, cannot\n\n\n 11\n\fstand. 8 U.S.C. § 1326(d)(3); see also Mendoza-Lopez, 481 U.S. at 839–40. He asserts\n\nthat after he arrived at the border and the immigration officer discovered that he was\n\nusing another person’s passport card, a fraudulent identity, and falsely claimed\n\ncitizenship, the officer advised him of the right to have counsel, which he invoked, thus\n\n“cut[ting] off communication” and precluding his participation in the expedited removal\n\nproceeding. He argues that in this manner, he was “forced to choose between two non-\n\nexclusive constitutional rights.” He also argues that as a result, he was prejudiced\n\n“because absent the procedural violation, there was a reasonable probability the officers\n\nwould have granted statutory relief in the form of withdrawal” of his application for\n\nadmission under 8 U.S.C. § 1225(a)(4).\n\n To demonstrate that a removal order used in a § 1326 criminal prosecution is\n\n“fundamentally unfair,” the defendant must show, first, a violation of his due process\n\nrights and, second, prejudice caused by the violation. United States v. El Shami, 434 F.3d\n\n659, 664 (4th Cir. 2005); United States v. Wilson, 316 F.3d 506, 510 (4th Cir. 2003).\n\nAnd, to establish prejudice, the defendant must show that, “but for the errors complained\n\nof, there was a reasonable probability that he would not have been deported.” El Shami,\n\n434 F.3d at 665; Wilson, 316 F.3d at 511.\n\n In this case, when the immigration officer discovered that Villarreal’s admission to\n\nthe United States on November 20, 2014, was being sought by fraud, the officer advised\n\nVillarreal of his Miranda rights in light of a potential criminal prosecution. Villarreal\n\nalso became subject to the expedited removal procedure under § 1225(b)(1)(A)(i). That\n\nsection provides that if an immigration officer determines that an alien arriving at the\n\n 12\n\fborder is inadmissible under § 1182(a)(6)(C) (for (i) seeking admission “by fraud or\n\nwillfully misrepresenting a material fact” or (ii) falsely representing himself to be a\n\ncitizen) or under § 1182(a)(7) (for not being in possession of valid entry documents and\n\npassports or travel documents), “the officer shall order the alien removed from the United\n\nStates without further hearing or review unless the alien indicates either an intention to\n\napply for asylum . . . or a fear of persecution.” 8 U.S.C. § 1225(b)(1)(A)(i). Under this\n\nabbreviated process, the immigration officer advises the alien of his determination and\n\nprovides the alien “an opportunity to respond.” 8 C.F.R. § 235.3(b)(2)(i). Villarreal\n\nnotes that after he had invoked his right to counsel, he could not respond to the\n\nimmigration officer’s determination and contends therefore that it was the conflict\n\nbetween exercising his right to counsel and his right to participate in this expedited\n\nremoval proceeding that violated his due process rights.\n\n The district court declined to address Villarreal’s procedural due process\n\nargument, reasoning that because Villarreal could not “demonstrate prejudice that could\n\nhave resulted from” the violation, he had failed to establish that the expedited removal\n\nprocedure was fundamentally unfair. We agree.\n\n To show prejudice, Villarreal argues that, but for the alleged due process violation,\n\n“there was a reasonable probability the officers would have granted [him] statutory relief\n\nin the form of withdrawal” of admission under 8 U.S.C. § 1225(a)(4), which provides that\n\n“[a]n alien applying for admission may, in the discretion of the Attorney General and at\n\nany time, be permitted to withdraw the application for admission and depart immediately\n\nfrom the United States.” Such relief would have displaced the expedited removal order,\n\n 13\n\fwhich was an essential element of his § 1326 violation. But, as the district court\n\nconcluded, Villarreal’s attempt to show prejudice fails.\n\n First, Villarreal presented nothing to establish that he would have requested a\n\n§ 1225(a)(4) withdrawal had he responded to the immigration officer. Indeed, the district\n\ncourt observed that Villarreal submitted no evidence, or even argument, that he knew of\n\nhis ability to request withdrawal of his application, and there was no requirement that he\n\nbe so advised.\n\n Second, withdrawal of admission under § 1225(a)(4) is granted “in the discretion\n\nof the Attorney General” (emphasis added), and numerous factors suggest that the\n\nAttorney General would not have exercised his discretion in Villarreal’s favor. As of the\n\ntime of his removal, Villarreal had seven criminal convictions — six misdemeanors and\n\none felony. In addition, Villarreal had been deported only shortly before his November\n\n20, 2014 attempted entry. Moreover, before that removal, Villarreal had five times been\n\nallowed to return to Mexico voluntarily after entering illegally. And Villarreal’s most\n\nrecent attempt to enter the country in 2014 was accompanied by fraud, including his use\n\nof someone else’s passport card, his misidentification of himself, and his representation\n\nthat he was a citizen. But perhaps most indicative was the fact that the immigration\n\nofficer, to whom Villarreal would have requested withdrawal, exercised his discretion to\n\nrefer Villarreal to the U.S. Attorney for criminal prosecution. The officer would not have\n\nmade that recommendation if he were inclined to exercise discretion to let Villarreal\n\nvoluntarily withdraw his admission application under § 1225(a)(4).\n\n\n\n 14\n\f Despite these facts, which strongly indicate that the Attorney General would not\n\nhave exercised his discretion favorably with respect to any request by Villarreal for\n\nwithdrawal under § 1225(a)(4), Villarreal presented the district court with an anonymous\n\ndocument indicating that withdrawal had been granted to an alien in circumstances\n\npurportedly similar to those of Villarreal. But, as the district court pointed out, the\n\ncircumstances of the posited comparator were substantially different in that, for example,\n\nhe had only one criminal conviction, while Villarreal had seven.\n\n In sum, because Villarreal did not sufficiently demonstrate a reasonable\n\nprobability that the Attorney General would have allowed him to withdraw his\n\napplication for admission under § 1225(a)(4), he failed to show prejudice, as required to\n\ndemonstrate that his removal was fundamentally unfair. Accordingly, Villarreal’s\n\nconviction under § 1326 based on his November 20, 2014 expedited removal is affirmed.\n\n AFFIRMED\n\n\n\n\n 15\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Omar VILLARREAL SILVA, A/K/A Nolberto Ruiz Trinidad, A/K/A Nolberto Trinidad Ruiz, Defendant - Appellant.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-07-25\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-4652\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nOMAR VILLARREAL SILVA, a/k/a Nolberto Ruiz Trinidad, a/k/a Nolberto\\nTrinidad Ruiz,\\n\\n Defendant - Appellant.\\n\\n\\nAppeal from the United States District Court for the Eastern District of Virginia, at\\nRichmond. M. Hannah Lauck, District Judge. (3:17-cr-00125-MHL-1)\\n\\n\\nArgued: May 9, 2019 Decided: July 25, 2019\\n\\n\\nBefore NIEMEYER, KEENAN, and QUATTLEBAUM, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge\\nKeenan and Judge Quattlebaum joined.\\n\\n\\nARGUED: Joseph Stephen Camden, OFFICE OF THE FEDERAL PUBLIC\\nDEFENDER, Richmond, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF\\nTHE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF:\\nGeremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC\\nDEFENDER, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States\\nAttorney, S. David Schiller, Assistant United States Attorney, OFFICE OF THE\\nUNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.\\n\\fNIEMEYER, Circuit Judge:\\n\\n Omar Villarreal Silva, a citizen of Mexico, was, during a traffic arrest on August\\n\\n6, 2017, found in the United States after having been removed following conviction for a\\n\\nfelony. A grand jury indicted him for violating 8 U.S.C. § 1326(a), (b)(1), which\\n\\npunishes “any alien who has been . . . removed . . . and thereafter . . . is at any time found\\n\\nin the United States” and which enhances the penalty when the “removal was subsequent\\n\\nto a conviction for . . . a felony.”\\n\\n Villarreal filed a motion to dismiss the indictment, challenging the validity of his\\n\\nunderlying removal, which was an element of the § 1326 offense. He contended that\\n\\nduring the removal, which was an expedited removal conducted under 8 U.S.C.\\n\\n§ 1225(b)(1)(A)(i), he was denied procedural due process and therefore that the removal\\n\\n“was fundamentally unfair.” 8 U.S.C. § 1326(d)(3). The district court observed that\\n\\nneither party had addressed the “relevance of 8 U.S.C. § 1225(b)(1)(D)” — which\\n\\nprovides that in a § 1326 prosecution, the court “shall not have jurisdiction to hear any\\n\\nclaim attacking the validity of an order of removal” issued under the expedited removal\\n\\nprovision — and requested briefing on the constitutionality of that section insofar as it\\n\\nprohibited any challenge to the validity of the removal element of Villarreal’s § 1326\\n\\nprosecution. Following briefing, the court held that § 1225(b)(1)(D) was unconstitutional\\n\\nand that Villarreal was entitled to a due process review of his prior expedited removal\\n\\norder. On conducting that review, however, the court held that Villarreal failed to\\n\\nestablish that the removal was fundamentally unfair and accordingly denied his motion to\\n\\ndismiss.\\n\\n 2\\n\\f Reserving review of the district court’s denial of his motion to dismiss, Villarreal\\n\\npleaded guilty, and the district court sentenced him to 21 months’ imprisonment.\\n\\n For the reasons that follow, we affirm.\\n\\n\\n I\\n\\n Villarreal has a long record of entering the United States illegally and committing\\n\\ncrimes while in the United States. On March 4 and March 14, 1998, and on March 18,\\n\\nJuly 26, and July 28, 1999, Villarreal was apprehended by U.S. Border Patrol agents,\\n\\nprocessed as a “voluntary return” rather than placed in removal proceedings or\\n\\nprosecuted, and returned to Mexico. In addition to those five illegal entries, Villarreal\\n\\nentered illegally at sometime thereafter for a sixth time, as he was arrested and\\n\\nsubsequently convicted on August 19, 2000, in Winston-Salem, North Carolina, for\\n\\ndischarging a firearm inside city limits. Several months later, he was again arrested in\\n\\nWinston-Salem for robbery with a dangerous weapon and resisting an officer and, on\\n\\nFebruary 10, 2001, was convicted of resisting arrest. On January 16, 2008, he was\\n\\nconvicted in Chesterfield County, Virginia, for driving while intoxicated and identity\\n\\ntheft. In 2009 and 2014, for a second and third time, he was again convicted in\\n\\nChesterfield County for driving while intoxicated. Following the third DWI conviction,\\n\\nVillarreal was removed to Mexico on September 11, 2014.\\n\\n Two months later, on November 20, 2014, Villarreal arrived at the border for\\n\\nadmission to the United States and presented another person’s passport card, falsely\\n\\nclaimed that the card was his, and falsely claimed that he was a United States citizen.\\n\\n\\n 3\\n\\fWhen the immigration officer discovered the fraud, Villarreal admitted that the passport\\n\\ncard was not his. This time, rather than permitting Villarreal to depart voluntarily, the\\n\\nofficer issued an expedited order of removal under 8 U.S.C. § 1225(b)(1)(A)(i) and\\n\\nreferred Villarreal to the U.S. Attorney for criminal prosecution. Villarreal was charged\\n\\nwith and convicted of violating 8 U.S.C. § 1326 (punishing aliens for attempted entry\\n\\nafter removal) and 18 U.S.C. § 1544 (punishing aliens for attempted entry with another’s\\n\\npassport). After serving 15 months’ imprisonment, he was removed to Mexico on\\n\\nDecember 23, 2015.\\n\\n For an eighth time, Villarreal illegally entered the United States at sometime after\\n\\n2015 and, on August 6, 2017, was arrested in Chesterfield County, Virginia, for DWI,\\n\\nobstruction of justice, and driving on a suspended or revoked license. This arrest led to\\n\\nVillarreal’s prosecution in this case for his violation of § 1326(a), (b)(1). For the removal\\n\\nelement of this violation, the government relied on Villarreal’s November 20, 2014\\n\\nexpedited removal.\\n\\n Villarreal filed a motion to dismiss the indictment, asserting the defense afforded\\n\\nunder § 1326(d) that his 2014 expedited removal “was fundamentally unfair” and\\n\\ntherefore could not be used to satisfy the removal element of his § 1326 offense. The\\n\\ndistrict court invited the parties to consider § 1225(b)(1)(D), which provides that “[i]n\\n\\nany action brought against an alien under . . . section 1326 of this title, the court shall not\\n\\nhave jurisdiction to hear any claim attacking the validity of an order of removal entered\\n\\nunder subparagraph (A)(i) [of § 1225(b)(1), the expedited removal provision].”\\n\\n(Emphasis added). After additional briefing, the court concluded, relying on United\\n\\n 4\\n\\fStates v. Mendoza-Lopez, 481 U.S. 828 (1987), that § 1225(b)(1)(D) was unconstitutional\\n\\ninsofar as it denied Villarreal the right to challenge his 2014 expedited removal, which\\n\\nwas an element of his § 1326 offense. The court then considered Villarreal’s challenge\\n\\non the merits and, applying § 1326(d)(3), concluded that the 2014 removal order was not\\n\\nfundamentally unfair because the alleged due process violation on which Villarreal relied\\n\\ndid not result in any prejudice.\\n\\n Villarreal then pleaded guilty, retaining the right to appeal the district court’s\\n\\ndenial of his motion to dismiss, and the district court sentenced him to 21 months’\\n\\nimprisonment.\\n\\n From the judgment against him dated August 27, 2018, Villarreal filed this appeal,\\n\\nchallenging the district court’s denial of his motion to dismiss the indictment.\\n\\n\\n II\\n\\n Villarreal contends that the removal order of November 20, 2014, that formed the\\n\\nbasis for his § 1326 conviction was “fundamentally unfair” and thus invalid under\\n\\n§ 1326(d). He argues, therefore, that his conviction must be set aside. Section 1326\\n\\nprovides that “any alien who . . . has been . . . removed . . . and thereafter . . . is at any\\n\\ntime found in the United States . . . shall be fined . . . or imprisoned . . . or both.” 8\\n\\nU.S.C. § 1326(a) (emphasis added). Villarreal asserts that in issuing the expedited\\n\\nremoval order under § 1225(b)(1)(A)(i), the immigration officer failed to provide him\\n\\nwith procedural due process.\\n\\n\\n\\n\\n 5\\n\\f To address Villarreal’s argument, the district court found it necessary to consider\\n\\n§ 1225(b)(1)(D), which strips courts of jurisdiction in proceedings under § 1326 “to hear\\n\\nany claim attacking the validity of an order of removal” entered under the expedited\\n\\nremoval provision of § 1225(b)(1)(A)(i). After receiving additional briefing, the court\\n\\nheld that § 1225(b)(1)(D) was unconstitutional under United States v. Mendoza-Lopez,\\n\\n481 U.S. 828 (1987), and then considered and rejected Villarreal’s attack on the validity\\n\\nof his expedited removal order.\\n\\n Because § 1225(b)(1)(D) purports to strip both the district court and this court of\\n\\njurisdiction to hear Villarreal’s attack on the 2014 expedited removal order entered under\\n\\n§ 1225(b)(1)(A)(i), we too conclude that we cannot consider Villarreal’s arguments\\n\\nbefore determining the effect of § 1225(b)(1)(D). See Steel Co. v. Citizens for a Better\\n\\nEnv’t, 523 U.S. 83, 94–95 (1988).\\n\\n Section 1225(b)(1)(A)(i) requires immigration officers to issue an expedited order\\n\\nof removal to any alien arriving at the border of the United States if the officer\\n\\ndetermines that the alien is inadmissible because he was seeking admission by fraudulent\\n\\nor willful misrepresentations or without valid entry and travel documents. The order\\n\\nmust be entered “without further hearing or review,” unless the alien is seeking asylum or\\n\\nindicates a fear of persecution. 8 U.S.C. § 1225(b)(1)(A)(i). Because Villarreal met the\\n\\ncriteria for expedited removal, the immigration officer ordered him removed without\\n\\nfurther hearing or review.\\n\\n When focusing on § 1225(b)(1)(A)(i) alone, it is well established that Congress is\\n\\nconstitutionally authorized to provide for expedited removals without review. As the\\n\\n 6\\n\\fSupreme Court has explained, “an alien seeking initial admission to the United States\\n\\nrequests a privilege and has no constitutional rights regarding his admission, for the\\n\\npower to admit or exclude aliens is a sovereign prerogative.” Landon v. Plasencia, 459\\n\\nU.S. 21, 32 (1982) (citing United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542\\n\\n(1950), and Nishimura Ekiu v. United States, 142 U.S. 651, 659–60 (1892)).\\n\\nAccordingly, “[w]hatever the procedure authorized by Congress is, it is due process as far\\n\\nas an alien denied entry is concerned.” Knauff, 338 U.S at 544; see also Zadvyas v.\\n\\nDavis, 533 U.S. 678, 693 (2001).\\n\\n But the issue in this case is not whether expedited removal is constitutional but\\n\\nwhether an alien can challenge an expedited removal when the government later uses that\\n\\nremoval as a basis for a criminal prosecution under § 1326. Even though the removal\\n\\nthus becomes an element of the § 1326 criminal offense, § 1225(b)(1)(D) provides that a\\n\\ncourt in a § 1326 prosecution lacks jurisdiction to hear a claim attacking the validity of\\n\\nthe removal when it was an expedited removal.\\n\\n We conclude that when an expedited removal is alleged to be an element in a\\n\\ncriminal prosecution, the defendant in that prosecution must, as a matter of due process,\\n\\nbe able to challenge the element — i.e., to contend that the removal was invalid — if he\\n\\ndid not have a prior opportunity to do so. Because the rules attendant to expedited\\n\\nremoval preclude review of the removal order, the defendant in a § 1326 prosecution\\n\\npremised on an expedited removal order under § 1225(b)(1)(A)(i) must be given the\\n\\nopportunity in the § 1326 prosecution to challenge the validity of that order. And\\n\\nbecause § 1225(b)(1)(D) strips courts in § 1326 prosecutions from hearing a defendant’s\\n\\n 7\\n\\fchallenge to an expedited removal element, we conclude that this jurisdiction-stripping\\n\\nprovision is unconstitutional. See Mendoza-Lopez, 481 U.S. 837–39.\\n\\n In Mendoza-Lopez, the Supreme Court concluded that when a “statute envisions\\n\\nthat a court may impose a criminal penalty for reentry after any deportation, regardless of\\n\\nhow violative of the rights of the alien the deportation proceeding may have been, the\\n\\nstatute does not comport with the constitutional requirement of due process.” 481 U.S. at\\n\\n837. It explained that “where a determination made in an administrative proceeding is to\\n\\nplay a critical role in the subsequent imposition of a criminal sanction, there must be\\n\\nsome meaningful review of the administrative proceeding.” Id. at 837–38 (emphasis\\n\\nadded). Addressing the version of § 1326 in effect at the time, the Court held that “where\\n\\nthe defects in an administrative proceeding foreclose judicial review of that proceeding,\\n\\nan alternative means of obtaining judicial review must be made available before the\\n\\nadministrative order may be used to establish conclusively an element of a criminal\\n\\noffense.” Id. at 838 (emphasis added). Stated otherwise, “[d]epriving an alien of the\\n\\nright to have the disposition in a deportation hearing reviewed in a judicial forum\\n\\nrequires, at a minimum, that review be made available in any subsequent proceeding in\\n\\nwhich the result of the deportation proceeding is used to establish an element of a\\n\\ncriminal offense.” Id. at 839.\\n\\n The government contends that the district court erred in finding § 1225(b)(1)(D)\\n\\nunconstitutional under Mendoza-Lopez for two distinct reasons. First, it contends that we\\n\\nneed not address the constitutionality of § 1225(b)(1)(D) because the alleged\\n\\nconstitutional violation during the November 20, 2014 removal proceeding, about which\\n\\n 8\\n\\fVillarreal complains, was harmless. Second, it seeks to distinguish the holding of\\n\\nMendoza-Lopez, thus arguing that § 1225(b)(1)(D) is constitutional and by its plain terms\\n\\nprecludes Villarreal’s attack on his prior removal. Alternatively, it argues that even if\\n\\n§ 1225(b)(1)(D) were unconstitutional, Villarreal’s claims attacking his removal\\n\\nproceeding fail under the standards for the defense afforded him under § 1326(d).\\n\\n On its first contention, the government argues that neither the district court nor this\\n\\ncourt needs to reach the constitutionality of § 1225(b)(1)(D) because any due process\\n\\nviolation in the 2014 removal proceeding was harmless. But in considering\\n\\nharmlessness, we would still have to consider the nature of Villarreal’s challenge to his\\n\\n2014 removal, the strength of his arguments, and the consequences of the challenged\\n\\nconduct. It would be impossible for a court to consider the harm of a constitutional\\n\\nviolation without considering its impact on the defendant. Thus, a finding that we have\\n\\njurisdiction would have to precede any effort by us to consider the harm or lack thereof of\\n\\nthe alleged due process violation.\\n\\n Focusing specifically on the district court’s finding of unconstitutionality, the\\n\\ngovernment argues that because Congress had authority to adopt expedited removal at the\\n\\nNation’s borders, it also could constitutionally bar direct review of such removal orders.\\n\\nBut that is not disputed, and we agree with that proposition as far as it goes. Rather, the\\n\\ndispute here concerns whether a defendant in a later criminal prosecution that relies on\\n\\nan expedited removal as an element can attack the validity of that element. Because that\\n\\ninquiry takes us to the holding of Mendoza-Lopez, the government attempts to limit the\\n\\napplication of Mendoza-Lopez by noting that the defendants removed in Mendoza-Lopez\\n\\n 9\\n\\fhad already entered the country and were not aliens attempting to enter at the border. See\\n\\n481 U.S. at 830. The force of that distinction, however, goes only to the question of\\n\\nwhether Congress had the power to authorize expedited removal for aliens at the border\\n\\nand does not explain why a defendant who was formerly detained at the border would\\n\\nnot need to be able to challenge the elements of a § 1326 criminal prosecution that is\\n\\nlater initiated in the United States. Under the principles announced by Mendoza-Lopez,\\n\\nremoval — of whatever kind — when made an element of a criminal offense must be\\n\\nsubject to some meaningful review, either administratively or during the subsequent\\n\\nprosecution. And while administrative and court reviews can undoubtedly be denied for\\n\\nexpedited removals at the border, some meaningful review of such a removal cannot be\\n\\ndenied when the government chooses to elevate the fact of removal to become an element\\n\\nof a criminal offense. In this case, Mendoza-Lopez requires that the defendant have the\\n\\nright to challenge each element, including the validity of the underlying removal, when\\n\\nhe has not had a prior opportunity to do so. “Depriving an alien of the right to have the\\n\\ndisposition in a deportation hearing reviewed in the judicial forum requires . . . that\\n\\nreview be made available in any subsequent proceeding in which the result of the\\n\\ndeportation proceeding is used to establish an element of a criminal offense.” Mendoza-\\n\\nLopez, 481 U.S. at 839 (emphasis added).\\n\\n Additionally, the government argues that the standards for reviewing removals\\n\\nincluded in § 1326(d) somehow redeem any flaw created by § 1225(b)(1)(D). But this\\n\\nargument fails to recognize the operation of the two provisions, which serve distinct\\n\\nroles. Section 1326(d) provides standards for review of all removal orders used as\\n\\n 10\\n\\felements to prosecute § 1326 violations, whereas § 1225(b)(1)(D) prohibits review of\\n\\nonly a subclass of those removal orders that are known as expedited removal orders.\\n\\nWhen an expedited removal forms the basis of a § 1326 prosecution, § 1225(b)(1)(D)\\n\\nprecludes a court from reviewing the validity of the removal. Thus, while § 1326(d)\\n\\nprovides general standards for challenging removals that form the basis of a § 1326\\n\\nprosecution, § 1225(b)(1)(D) purports to carve out expedited removals from the operation\\n\\nof § 1326(d).\\n\\n Because § 1225(b)(1)(D) prohibits Villarreal from challenging the validity of the\\n\\nremoval order that forms the basis — an element — of the § 1326 offense being\\n\\nprosecuted, it denies him due process. Accordingly, we conclude, as did the district\\n\\ncourt, that the provision is unconstitutional as it operates in the circumstances of this\\n\\ncase. See United States v. Barajas-Alvarado, 655 F.3d 1077, 1087 (9th Cir. 2011)\\n\\n(holding § 1225(b)(1)(D) unconstitutional to the extent it bars review of an expedited\\n\\nremoval order in a § 1326 prosecution). But cf. United States v. Lopez-Vasquez, 227 F.3d\\n\\n476, 486 (5th Cir. 2000) (holding that it was unnecessary to address the constitutionality\\n\\nof § 1225(b)(1)(D) because the alien suffered no prejudice from the allegedly illegal\\n\\nremoval).\\n\\n\\n III\\n\\n On the merits of his challenge to the validity of his expedited removal order of\\n\\nNovember 20, 2014, Villarreal contends that the procedures were “fundamentally unfair”\\n\\nand therefore that his § 1326 conviction, which relied on that removal order, cannot\\n\\n\\n 11\\n\\fstand. 8 U.S.C. § 1326(d)(3); see also Mendoza-Lopez, 481 U.S. at 839–40. He asserts\\n\\nthat after he arrived at the border and the immigration officer discovered that he was\\n\\nusing another person’s passport card, a fraudulent identity, and falsely claimed\\n\\ncitizenship, the officer advised him of the right to have counsel, which he invoked, thus\\n\\n“cut[ting] off communication” and precluding his participation in the expedited removal\\n\\nproceeding. He argues that in this manner, he was “forced to choose between two non-\\n\\nexclusive constitutional rights.” He also argues that as a result, he was prejudiced\\n\\n“because absent the procedural violation, there was a reasonable probability the officers\\n\\nwould have granted statutory relief in the form of withdrawal” of his application for\\n\\nadmission under 8 U.S.C. § 1225(a)(4).\\n\\n To demonstrate that a removal order used in a § 1326 criminal prosecution is\\n\\n“fundamentally unfair,” the defendant must show, first, a violation of his due process\\n\\nrights and, second, prejudice caused by the violation. United States v. El Shami, 434 F.3d\\n\\n659, 664 (4th Cir. 2005); United States v. Wilson, 316 F.3d 506, 510 (4th Cir. 2003).\\n\\nAnd, to establish prejudice, the defendant must show that, “but for the errors complained\\n\\nof, there was a reasonable probability that he would not have been deported.” El Shami,\\n\\n434 F.3d at 665; Wilson, 316 F.3d at 511.\\n\\n In this case, when the immigration officer discovered that Villarreal’s admission to\\n\\nthe United States on November 20, 2014, was being sought by fraud, the officer advised\\n\\nVillarreal of his Miranda rights in light of a potential criminal prosecution. Villarreal\\n\\nalso became subject to the expedited removal procedure under § 1225(b)(1)(A)(i). That\\n\\nsection provides that if an immigration officer determines that an alien arriving at the\\n\\n 12\\n\\fborder is inadmissible under § 1182(a)(6)(C) (for (i) seeking admission “by fraud or\\n\\nwillfully misrepresenting a material fact” or (ii) falsely representing himself to be a\\n\\ncitizen) or under § 1182(a)(7) (for not being in possession of valid entry documents and\\n\\npassports or travel documents), “the officer shall order the alien removed from the United\\n\\nStates without further hearing or review unless the alien indicates either an intention to\\n\\napply for asylum . . . or a fear of persecution.” 8 U.S.C. § 1225(b)(1)(A)(i). Under this\\n\\nabbreviated process, the immigration officer advises the alien of his determination and\\n\\nprovides the alien “an opportunity to respond.” 8 C.F.R. § 235.3(b)(2)(i). Villarreal\\n\\nnotes that after he had invoked his right to counsel, he could not respond to the\\n\\nimmigration officer’s determination and contends therefore that it was the conflict\\n\\nbetween exercising his right to counsel and his right to participate in this expedited\\n\\nremoval proceeding that violated his due process rights.\\n\\n The district court declined to address Villarreal’s procedural due process\\n\\nargument, reasoning that because Villarreal could not “demonstrate prejudice that could\\n\\nhave resulted from” the violation, he had failed to establish that the expedited removal\\n\\nprocedure was fundamentally unfair. We agree.\\n\\n To show prejudice, Villarreal argues that, but for the alleged due process violation,\\n\\n“there was a reasonable probability the officers would have granted [him] statutory relief\\n\\nin the form of withdrawal” of admission under 8 U.S.C. § 1225(a)(4), which provides that\\n\\n“[a]n alien applying for admission may, in the discretion of the Attorney General and at\\n\\nany time, be permitted to withdraw the application for admission and depart immediately\\n\\nfrom the United States.” Such relief would have displaced the expedited removal order,\\n\\n 13\\n\\fwhich was an essential element of his § 1326 violation. But, as the district court\\n\\nconcluded, Villarreal’s attempt to show prejudice fails.\\n\\n First, Villarreal presented nothing to establish that he would have requested a\\n\\n§ 1225(a)(4) withdrawal had he responded to the immigration officer. Indeed, the district\\n\\ncourt observed that Villarreal submitted no evidence, or even argument, that he knew of\\n\\nhis ability to request withdrawal of his application, and there was no requirement that he\\n\\nbe so advised.\\n\\n Second, withdrawal of admission under § 1225(a)(4) is granted “in the discretion\\n\\nof the Attorney General” (emphasis added), and numerous factors suggest that the\\n\\nAttorney General would not have exercised his discretion in Villarreal’s favor. As of the\\n\\ntime of his removal, Villarreal had seven criminal convictions — six misdemeanors and\\n\\none felony. In addition, Villarreal had been deported only shortly before his November\\n\\n20, 2014 attempted entry. Moreover, before that removal, Villarreal had five times been\\n\\nallowed to return to Mexico voluntarily after entering illegally. And Villarreal’s most\\n\\nrecent attempt to enter the country in 2014 was accompanied by fraud, including his use\\n\\nof someone else’s passport card, his misidentification of himself, and his representation\\n\\nthat he was a citizen. But perhaps most indicative was the fact that the immigration\\n\\nofficer, to whom Villarreal would have requested withdrawal, exercised his discretion to\\n\\nrefer Villarreal to the U.S. Attorney for criminal prosecution. The officer would not have\\n\\nmade that recommendation if he were inclined to exercise discretion to let Villarreal\\n\\nvoluntarily withdraw his admission application under § 1225(a)(4).\\n\\n\\n\\n 14\\n\\f Despite these facts, which strongly indicate that the Attorney General would not\\n\\nhave exercised his discretion favorably with respect to any request by Villarreal for\\n\\nwithdrawal under § 1225(a)(4), Villarreal presented the district court with an anonymous\\n\\ndocument indicating that withdrawal had been granted to an alien in circumstances\\n\\npurportedly similar to those of Villarreal. But, as the district court pointed out, the\\n\\ncircumstances of the posited comparator were substantially different in that, for example,\\n\\nhe had only one criminal conviction, while Villarreal had seven.\\n\\n In sum, because Villarreal did not sufficiently demonstrate a reasonable\\n\\nprobability that the Attorney General would have allowed him to withdraw his\\n\\napplication for admission under § 1225(a)(4), he failed to show prejudice, as required to\\n\\ndemonstrate that his removal was fundamentally unfair. Accordingly, Villarreal’s\\n\\nconviction under § 1326 based on his November 20, 2014 expedited removal is affirmed.\\n\\n AFFIRMED\\n\\n\\n\\n\\n 15\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2959,"cells":{"id":{"kind":"number","value":4642928,"string":"4,642,928"},"name":{"kind":"string","value":"Tiffanie HUPP; R.H., a Minor, by and Through His Next Friend, Tiffanie Hupp; Clifford Myers, Plaintiffs - Appellants, v. State Trooper Seth COOK; Colonel C.R. Jay Smithers, Defendants - Appellees, and West Virginia State Police, Defendant."},"name_abbreviation":{"kind":"string","value":"Tiffanie Hupp v. State Trooper Seth Cook"},"decision_date":{"kind":"string","value":"2019-07-25"},"docket_number":{"kind":"string","value":"18-1845"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Gregory, King\", \"parties\": \"\", \"opinions\": [{\"author\": \"at Charleston. Thomas E. Johnston, Chief District Judge\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1845\\n\\n\\nTIFFANIE HUPP; R.H., a minor, by and through his next friend, Tiffanie Hupp;\\nCLIFFORD MYERS,\\n\\n Plaintiffs – Appellants,\\n\\n v.\\n\\nSTATE TROOPER SETH COOK; COLONEL C.R. JAY SMITHERS,\\n\\n Defendants – Appellees,\\n\\n and\\n\\nWEST VIRGINIA STATE POLICE,\\n\\n Defendant.\\n\\n\\nAppeal from the United States District Court for the Southern District of West Virginia,\\nat Charleston. Thomas E. Johnston, Chief District Judge. (2:17–cv–00926)\\n\\n\\nArgued: April 2, 2019 Decided: July 25, 2019\\n\\n\\nBefore GREGORY, Chief Judge, and KING, Circuit Judge. 1\\n\\n\\nAffirmed in part, reversed in part, and remanded by published opinion. Chief Judge\\nGregory wrote the opinion, in which Judge King joined.\\n\\n 1\\n Judge Thacker was unable to participate in oral argument. The decision is filed\\nby a quorum of the panel pursuant to 28 U.S.C. § 46(d).\\n\\fARGUED: John Eric Campbell, CAMPBELL LAW, Denver, Colorado;\\nJustin F. Marceau, UNIVERSITY OF DENVER, Denver, Colorado, for Appellants.\\nMichael Deering Mullins, STEPTOE & JOHNSON PLLC, Charleston, West Virginia,\\nfor Appellees. ON BRIEF: Alene Anello, ALDF, Cotati, California, for Appellants.\\nRobert L. Bailey, STEPTOE & JOHNSON PLLC, Charleston, West Virginia, for\\nAppellees.\\n\\n\\n\\n\\n 2\\n\\fGREGORY, Chief Judge:\\n\\n Appellant Tiffanie Hupp was arrested for obstruction when she attempted to stop a\\n\\nstate trooper from shooting her family’s dog. After her husband video-recorded the\\n\\nincident, the state trooper entered the family’s home, without consent and without a\\n\\nwarrant, and seized several of the family’s electronic devices. Hupp, her minor son, and\\n\\nher father-in-law filed suit against the state trooper, asserting various violations of the\\n\\nFourth Amendment under 42 U.S.C. § 1983. The district court granted summary\\n\\njudgment to the state trooper and denied Appellants’ motion for partial summary\\n\\njudgment. Because issues of fact exist, we affirm the denial of Appellants’ partial\\n\\nsummary judgment motion but reverse the grant of summary judgment in Trooper Seth\\n\\nCook’s favor and remand for trial on each of Appellants’ claims.\\n\\n\\n\\n I.\\n\\n A.\\n\\n Buddy, a 13-year-old husky-Akita mix, lives with his owner, Appellant Clifford\\n\\nMyers, in Waverly, West Virginia. Buddy has been the source of contention between\\n\\nMyers and his neighbor David Wayne, who lives across the street.\\n\\n On May 9, 2015, the police were called out in response to a dispute earlier that day\\n\\nbetween the two men over the dog. West Virginia State Troopers Seth Cook and Sean\\n\\nMichael responded to the call. Trooper Cook was there to provide backup to Trooper\\n\\nMichael. Upon their arrival, the troopers spoke with Myers, who was in his front yard\\n\\ndrinking a beer. The troopers then went across the street to speak with the Waynes. In\\n\\n 3\\n\\fspeaking with the Waynes, Trooper Cook was told of the “ongoing problem” with Myers\\n\\nover Buddy, that Buddy was, in their mind, “vicious and had killed several of their cats\\n\\nand had chased the children.” J.A. 302. Trooper Cook was also told that Buddy had\\n\\nchased Wayne’s grandmother back into the house and that Wayne’s grandfather had to\\n\\ntake a stick with him when he checked the mail “to shoo the dog away.” Id. 2\\n\\n At the time, Myers had another dog, a black Labrador, on a chain in his front yard;\\n\\nBuddy was loose in the yard. According to Myers, Trooper Cook was aware that Buddy\\n\\nwas not on a leash. Trooper Cook testified, however, that he did not see Buddy when he\\n\\nfirst went to speak with Myers. While the troopers spoke with the Waynes, Myers took\\n\\nthe Labrador off the chain and placed the chain on Buddy. Myers later explained that it\\n\\nwas mere happenstance that he switched the dogs; according to him, it was not because\\n\\n“the black lab was the friendlier of the two dogs.” J.A. 82.\\n\\n After speaking with the Waynes, the troopers returned to Myers’s house. Trooper\\n\\nMichael asked Myers for his identification. Myers asked his daughter, Lindsey, to\\n\\nretrieve it for him. As Lindsey headed back toward the house to retrieve the ID, Trooper\\n\\nCook followed her into Myers’s front yard. Trooper Cook testified that he followed\\n\\nLindsey “because of the people gathering in the door [of Myers’s home] and just a\\n\\ngeneral, again, situation awareness.” J.A. 208. At that point, Myers had six of his family\\n\\nmembers at his house, and Trooper Cook wanted to “have a little bit of personal contact\\n\\nwith them to, again, determine their nature” and determine if “there were potential other\\n\\n 2\\n Myers maintained that Buddy had never harmed a person and simply chased\\nsquirrels.\\n\\n 4\\n\\fpeople that [he] needed to be paying closer attention to.” J.A. 56, 207–08. Trooper Cook\\n\\nalso testified that, due to the slope of Myers’s front yard, he wanted to “get closer to\\n\\nwhere [he] could see better than from down at the road in the driveway looking up at a\\n\\nposition of tactical advantage over [him].” J.A. 208.\\n\\n Video evidence captured much, but not all, of what happened next. 3 A dog barked\\n\\nas Trooper Cook walked into Myers’s yard. J.A. 610 at 1:17–1:20. Trooper Cook, who\\n\\nwas trained to identify and “handle” aggressive dogs, took a few steps back after seeing\\n\\nBuddy. J.A. 189, 610 at 1:20–1:22. He then pulled his gun out and, holding it with his\\n\\nleft hand, pointed it at Buddy. J.A. 610 at 1:23–1:26. Hupp, Myers’s 113-pound\\n\\ndaughter-in-law, ran down the front yard from near the house toward Trooper Cook. Id.\\n\\nat 1:26–1:27. She stood with her left side next to Trooper Cook’s right side, her body\\n\\nperpendicular to Trooper Cook. Buddy was at Hupp’s right. Hupp’s arms were at her\\n\\nside and her hands were visibly empty. Id. at 1:26–1:28. Within seconds of Hupp’s\\n\\narrival, Trooper Cook grabbed Hupp’s left arm with his right hand. Id. at 1:29. A brief\\n\\nstruggle ensued during which Trooper Cook turned to his left, Hupp moved to her right\\n\\nand directly facing Trooper Cook, all while the two struggled for two seconds with\\n\\nTrooper Cook’s grasp on Hupp’s arm. Id. at 1:29–1:30. As Trooper Cook and Hupp\\n\\nspun around, Hupp fell to the ground. Id. at 1:31. When Hupp stood up, Trooper Cook\\n\\n 3\\n To the extent the video depicts material facts of this case, we review those facts\\nas they are depicted in the video. Scott v. Harris, 550 U.S. 372, 380–81 (2007). Where,\\nhowever, the video “does not ‘clearly’ or ‘blatantly’ contradict” Hupp’s version of the\\nfacts, we adopt her version in reviewing the grant of summary judgment to Trooper\\nCook. Witt v. W. Va. State Police, Troop 2, 633 F.3d 272, 276–77 (4th Cir. 2011)\\n(quoting Scott, 550 U.S. at 378).\\n\\n 5\\n\\fgrabbed her arms from behind and walked her to the police car parked a few feet away.\\n\\nId. at 1:34–39. Bending Hupp over the hood of the police car, the troopers handcuffed\\n\\nher. Id. at 1:40–2:05.\\n\\n Though not depicted clearly in the video, Trooper Cook testified that after seeing\\n\\nBuddy as he entered the yard, he yelled for someone to control the dog or to “get a hold\\n\\nof your dog.” J.A. 201, 569–70. According to Trooper Cook, he did not at first notice\\n\\nthat Buddy was on a chain. Hupp testified that she ran toward Trooper Cook both in\\n\\nresponse to Buddy’s barks but also in response to the trooper’s order to control the dog.\\n\\n Also not clear from the video is what was said by Trooper Cook and Hupp in their\\n\\nbrief encounter. Trooper Cook testified that he told Hupp at least twice to back away and\\n\\nthat her response was that he could not tell her what to do on her property. Trooper Cook\\n\\nalso maintained that Hupp was “cursing” and “screaming profanities” at him. J.A. 210,\\n\\n509. Hupp testified, on the other hand, that she did not hear any of Trooper Cook’s\\n\\norders and simply told him, “Whoa, whoa, don’t do that, stop.” J.A. 121.\\n\\n Hupp’s husband, Ryan, recorded the incident with his cell phone from inside\\n\\nMyers’s home. As Hupp was being arrested, she asked Ryan, “Did you get that on\\n\\nvideo?” J.A. 86. Ryan answered, “Don’t worry, babe. I’ve got that shit.” J.A. 244.\\n\\nTrooper Cook later testified that he understood that statement to mean that Ryan “was\\n\\nglad he had” the video and “wouldn’t get rid of it for his—his possession of it.” J.A. 247.\\n\\n Upon learning that a video had been recorded, Trooper Cook “stepped in” to\\n\\nMyers’s home without a warrant and without consent. J.A. 237, 258. He seized four\\n\\nelectronic devices: a child’s tablet and three cell phones, including Ryan’s phone that\\n\\n 6\\n\\frecorded the incident. J.A. 237, 572. 4 Trooper Cook explained in his deposition that it is\\n\\nhis practice to seize electronic recording devices without first obtaining a warrant if he\\n\\nbelieves that someone has used the device to capture evidence. The State Police retained\\n\\nthe devices for a month before returning them.\\n\\n B.\\n\\n Hupp was charged with obstruction under West Virginia Code § 61-5-17(a). She\\n\\nwas arraigned, and after the magistrate judge concluded that probable cause existed for\\n\\nher arrest, she was released on bond. Following a jury trial in the Wood County\\n\\nmagistrate court, Hupp was acquitted.\\n\\n Appellants Hupp, Myers, and Hupp’s minor son—who witnessed his mother’s\\n\\narrest—filed suit against Trooper Cook, West Virginia State Police Colonel C.R. “Jay”\\n\\nSmithers (the superintendent), and the West Virginia State Police. Appellants brought\\n\\nseveral claims for violation of their constitutional rights under 42 U.S.C. § 1983 and\\n\\nparallel state law claims. Appellants later amended their complaint, bringing claims\\n\\nagainst the police officers in their individual and official capacities and against the West\\n\\nVirginia State Police. The district court granted in part a motion to dismiss, dismissing\\n\\nthe claims against the West Virginia State Police and those brought against the police\\n\\nofficers in their official capacities. As a result, claims remained against only Trooper\\n\\nCook and Colonel Smithers in their individual capacities. The claims against Trooper\\n\\nCook included section 1983 claims for false arrest, excessive force, malicious\\n\\n 4\\n Trooper Cook testified that after he “took the phones,” Ryan and Tiffanie Hupp\\ngave him the passwords for the phones and signed a property receipt. J.A. 572–73.\\n\\n 7\\n\\fprosecution, unlawful search of Myers’s house, unlawful seizure of the electronic\\n\\ndevices, and unlawful seizure of Buddy; and state law claims for malicious prosecution,\\n\\nintentional infliction of emotional distress (outrage), and battery. A claim for supervisory\\n\\nliability under section 1983 also remained against Colonel Smithers.\\n\\n Trooper Cook and Colonel Smithers moved for summary judgment on all of the\\n\\nremaining claims, and Appellants moved for partial summary judgment on the false\\n\\narrest, excessive force, and unlawful search and seizure claims. The district court granted\\n\\nsummary judgment to Trooper Cook and Colonel Smithers and denied summary\\n\\njudgment to Appellants. The district court found that Trooper Cook is entitled to\\n\\nqualified immunity on the false arrest, excessive force, and malicious prosecution claims\\n\\nbrought under section 1983 as well as on the common law malicious prosecution claim.\\n\\nThe district court granted summary judgment to Trooper Cook on the outrage and battery\\n\\nclaims as well. Because the court found that Trooper Cook did not violate Hupp’s\\n\\nconstitutional rights, it granted summary judgment to Colonel Smithers on the one\\n\\nremaining claim of supervisory liability against him.\\n\\n The district court also granted summary judgment to Trooper Cook on the\\n\\nunlawful search and seizure claims. The court concluded that exigent circumstances\\n\\njustified the search of Myers’s home and the seizure of the electronic devices because an\\n\\nobjectively reasonable officer would have believed that Myers’s family members would\\n\\ndestroy or conceal the video evidence before a warrant could be obtained. With respect\\n\\nto the claim of unlawful seizure of Buddy, the court found that Trooper Cook’s actions\\n\\n\\n\\n 8\\n\\fdid not “meaningfully interfere[ ]” with Appellants’ “possessory interest in Buddy.” J.A.\\n\\n636.\\n\\n Appellants timely appealed the grant of summary judgment on the claims for false\\n\\narrest, excessive force, malicious prosecution, unlawful entry, and unlawful seizure of the\\n\\nelectronic devices. Appellants also appealed the denial of summary judgment in their\\n\\nfavor on the Fourth Amendment claims related to the entry of Myers’s home and seizure\\n\\nof the electronic devices. Appellants did not appeal the grant of summary judgment on\\n\\nthe supervisory liability claim, claim for unlawful seizure of Buddy, or the state law\\n\\nclaims of outrage and battery.\\n\\n The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), and\\n\\n1367, and we have jurisdiction under 28 U.S.C. § 1291.\\n\\n\\n\\n II.\\n\\n We review a district court’s grant of summary judgment de novo, “applying the\\n\\nsame legal standards as the district court, and viewing all facts and reasonable inferences\\n\\ntherefrom in the light most favorable to the nonmoving party.” Heyer v. U.S. Bureau of\\n\\nPrisons, 849 F.3d 202, 208 (4th Cir. 2017) (quoting T-Mobile Ne., LLC v. City Council of\\n\\nNewport News, 674 F.3d 380, 384–85 (4th Cir. 2012)). Summary judgment is\\n\\nappropriate “if the movant shows that there is no genuine dispute as to any material fact\\n\\nand the movant is entitled to judgment as a matter of law.” Id. (quoting Fed. R. Civ. P.\\n\\n56(a)). “A dispute is genuine if ‘a reasonable jury could return a verdict for the\\n\\nnonmoving party.’” Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013)\\n\\n 9\\n\\f(quoting Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012)). “A fact\\n\\nis material if it ‘might affect the outcome of the suit under the governing law.’” Id.\\n\\n(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).\\n\\n\\n\\n III.\\n\\n A.\\n\\n We first address the district court’s determination that Trooper Cook is entitled to\\n\\nqualified immunity on the claims for false arrest, excessive force, and malicious\\n\\nprosecution. “The doctrine of qualified immunity shields government officials from\\n\\nliability for civil damages when their conduct does not violate clearly established\\n\\nconstitutional or other rights that a reasonable officer would have known.” Sims v.\\n\\nLabowitz, 885 F.3d 254, 260 (4th Cir. 2018). The doctrine is intended to “balance[ ] two\\n\\nimportant interests—the need to hold public officials accountable when they exercise\\n\\npower irresponsibly and the need to shield officials from harassment, distraction, and\\n\\nliability when they perform their duties reasonably.” Smith v. Ray, 781 F.3d 95, 100 (4th\\n\\nCir. 2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). It “gives\\n\\ngovernment officials breathing room to make reasonable but mistaken judgments, and\\n\\nprotects all but the plainly incompetent or those who knowingly violate the law.” Stanton\\n\\nv. Sims, 571 U.S. 3, 5 (2013) (internal quotation marks and citation omitted).\\n\\n An official is not entitled to qualified immunity if he or she deprived an individual\\n\\nof a constitutional right and that right was clearly established at the time of the violation.\\n\\nPearson, 555 U.S. at 231. Our analysis is, therefore, two-fold. We must determine\\n\\n 10\\n\\fwhether the facts, viewed in the light most favorable to Appellants, show that Trooper\\n\\nCook violated Appellants’ constitutional or other rights and whether those rights were\\n\\nclearly established at the time of Trooper Cook’s conduct such that a reasonable officer\\n\\nwould have known that the conduct was unconstitutional. Smith, 781 F.3d at 100. We\\n\\nmay consider either prong of the analysis first. Sims, 885 F.3d at 260. The question of\\n\\nwhether a right is clearly established is a question of law for the Court to decide.\\n\\nPritchett v. Alford, 973 F.2d 307, 312 (4th Cir. 1992). The question of whether a\\n\\nreasonable officer would have known that the conduct at issue violated that right, on the\\n\\nother hand, cannot be decided on summary judgment if disputes of the historical facts\\n\\nexist. Smith, 781 F.3d at 100. Thus, “while the purely legal question of whether the\\n\\nconstitutional right at issue was clearly established ‘is always capable of decision at the\\n\\nsummary judgment stage,’ a genuine question of material fact regarding ‘[w]hether the\\n\\nconduct allegedly violative of the right actually occurred . . . must be reserved for trial.’”\\n\\nWillingham v. Crooke, 412 F.3d 553, 559 (4th Cir. 2005) (alteration and omission in\\n\\noriginal) (quoting Pritchett, 973 F.2d at 313).\\n\\n 1. False Arrest\\n\\n We begin with Hupp’s false arrest claim. The Fourth Amendment protects “[t]he\\n\\nright of the people to be secure in their persons . . . against unreasonable searches and\\n\\nseizures.” U.S. Const. amend. IV. A seizure is unreasonable under the Fourth\\n\\nAmendment if it is not based on probable cause. Dunaway v. New York, 442 U.S. 200,\\n\\n213 (1979). Thus, “[i]f a person is arrested when no reasonable officer could believe . . .\\n\\nthat probable cause exists to arrest that person, a violation of a clearly established Fourth\\n\\n 11\\n\\fAmendment right to be arrested only upon probable cause ensues.” Rogers v. Pendleton,\\n\\n249 F.3d 279, 290 (4th Cir. 2001) (citation omitted).\\n\\n The district court determined that a reasonable officer would have believed that\\n\\nprobable cause existed for Hupp’s arrest for obstruction. Appellants, on the other hand,\\n\\ncontend that the historical facts material to a probable cause finding are in dispute.\\n\\n“Probable cause is determined by a ‘totality-of-the-circumstances’ approach.” Smith v.\\n\\nMunday, 848 F.3d 248, 253 (4th Cir. 2017) (citing Illinois v. Gates, 462 U.S. 213, 230\\n\\n(1983)). The inquiry “turns on two factors: ‘the suspect’s conduct as known to the\\n\\nofficer, and the contours of the offense thought to be committed by that conduct.’” Id.\\n\\n(quoting Graham v. Gagnon, 831 F.3d 176, 184 (4th Cir. 2016)). While we look to the\\n\\ninformation available to the officer on the scene at the time, we apply an objective test to\\n\\ndetermine whether a reasonably prudent officer with that information would have thought\\n\\nthat probable cause existed for the arrest. Graham, 831 F.3d at 185. Evidence sufficient\\n\\nto secure a conviction is not required, but probable cause exists only if there is sufficient\\n\\nevidence on which a reasonable officer at the time could have believed that probable\\n\\ncause existed for the arrest. Wong Sun v. United States, 371 U.S. 471, 479 (1963).\\n\\n Because the probable cause inquiry is informed by the “contours of the offense” at\\n\\nissue, we are guided by West Virginia law in determining the scope of the offense of\\n\\nobstruction proscribed by West Virginia Code § 61-5-17(a)—the offense for which Hupp\\n\\nwas arrested. Rogers, 249 F.3d at 291; see Graham, 831 F.3d at 188 (Although “an\\n\\nactual lack of probable cause is not dispositive for qualified immunity purposes[,] . . .\\n\\n[t]he boundaries of the statute [allegedly violated by the plaintiff] are extremely relevant\\n\\n 12\\n\\fto an assessment of whether [an officer’s] mistake was reasonable.”). The plain language\\n\\nof the statute establishes that a person is guilty of obstruction when she, “by threats,\\n\\nmenaces, acts or otherwise forcibly or illegally hinders or obstructs or attempts to hinder\\n\\nor obstruct a law-enforcement officer, probation officer or parole officer acting in his or\\n\\nher official capacity.” W. Va. Code § 61-5-17(a).\\n\\n Interpreting this statute, the Supreme Court of Appeals of West Virginia has held\\n\\nthat a person is guilty of obstruction when she “check[s] or hamper[s] the action of the\\n\\nofficer,” does “something which hinders or prevents or tends to prevent the performance\\n\\nof [the officer’s] legal duty,” or acts in “direct or indirect opposition or resistance to the\\n\\nlawful discharge of [the officer’s] official duty.” State v. Johnson, 59 S.E.2d 485, 487\\n\\n(W. Va. 1950). As West Virginia’s high court has “succinct[ly]” explained, to secure a\\n\\nconviction under section 61-5-17(a), the State must show “forcible or illegal conduct that\\n\\ninterferes with a police officer’s discharge of official duties.” State v. Davis, 735 S.E.2d\\n\\n570, 573 (W. Va. 2012) (quoting State v. Carney, 663 S.E.2d 606, 611 (2008)). Because\\n\\nconduct can obstruct an officer if it is either forcible or illegal, a person may be guilty of\\n\\nobstruction “whether or not force be actually present.” Johnson, 59 S.E.2d at 487.\\n\\nHowever, where “force is not involved to effect an obstruction,” the resulting obstruction\\n\\nitself is insufficient to establish the illegality required by section 61-5-17. Carney, 663\\n\\nS.E.2d at 611. That is, when force is not used, obstruction lies only where an illegal act\\n\\nis performed. This is because “lawful conduct is not sufficient to establish the statutory\\n\\noffense.” Id.\\n\\n\\n\\n 13\\n\\f Of particular relevance to our inquiry here, West Virginia courts have held that\\n\\n“when done in an orderly manner, merely questioning or remonstrating with an officer\\n\\nwhile he or she is performing his or her duty, does not ordinarily constitute the offense of\\n\\nobstructing an officer.” State v. Srnsky, 582 S.E.2d 859, 867 (W. Va. 2003) (quoting\\n\\nState ex rel. Wilmoth v. Gustke, 373 S.E.2d 484, 486 (W. Va. 1988)). For example, the\\n\\nSupreme Court of Appeals has found that no obstruction is committed when a property\\n\\nowner asks a law enforcement officer, “without the use of fighting or insulting words or\\n\\nother opprobrious language and without forcible or other illegal hindrance,” to leave her\\n\\nproperty. Wilmoth, 373 S.E.2d at 487. This principle is based on the First Amendment\\n\\n“right to question or challenge the authority of a police officer, provided that fighting\\n\\nwords or other opprobrious language is not used.” Id.; see Graham, 831 F.3d at 188\\n\\n(“Peaceful verbal criticism of an officer who is making an arrest cannot be targeted under\\n\\na general obstruction of justice statute . . . without running afoul of the First\\n\\nAmendment.” (citation omitted)).\\n\\n On the other hand, certain “threats, language, and menacing demeanor” can\\n\\nconstitute obstruction. State v. Davis, 483 S.E.2d 84, 87 (W. Va. 1996). In Davis, for\\n\\nexample, a police officer responded to a call of shots fired and encountered an intoxicated\\n\\nman who was fighting with his live-in girlfriend. Id. The man told the officer that he had\\n\\na loaded shotgun in the corner of the home, “gestured toward the gun, reminded the\\n\\nofficer in a threatening manner that it was loaded, and employed language indicative of\\n\\nboth his agitated state and his intention to discharge the gun at any time and any place he\\n\\nchose.” Id. The police officer exited the home and was forced to call for backup. Id. at\\n\\n 14\\n\\f86. The court concluded that the “verbal threats and behavior” “had the effect of\\n\\nhindering the police investigation of shots [ ] fired.” Id. at 87.\\n\\n With respect to conduct that involves more than mere verbal interactions with law\\n\\nenforcement, obstruction may be found when a person refuses to comply with an officer’s\\n\\norder. For example, the Supreme Court of Appeals of West Virginia upheld a conviction\\n\\nfor obstruction where the defendant was told that he was being placed under arrest and\\n\\nthen “struggled against arrest.” State v. Forsythe, 460 S.E.2d 742, 745–46 (W. Va.\\n\\n1995). More recently, the court upheld a conviction for obstruction where the defendant\\n\\nrefused to obey a state trooper’s numerous orders to stand to be frisked, began a physical\\n\\naltercation with the trooper, and ultimately grabbed the trooper’s baton and struck the\\n\\ntrooper twice on the head. State v. Lowery, No. 17-0210, 2018 WL 2193241, at *1, 5 (W.\\n\\nVa. May 14, 2018) (unpublished).\\n\\n Applying these principles here, we find that disputes of fact preclude a finding that\\n\\na reasonable officer in Trooper Cook’s position would have believed that probable cause\\n\\nexisted for Hupp’s arrest. Trooper Cook maintains that Hupp’s obstruction began when\\n\\nshe approached him in “an aggressive manner” and continued as she failed to comply\\n\\nwith his orders and “met [Trooper Cook’s order] with a verbal further noncompliance.”\\n\\nJ.A. 210. First, disputes of fact exist with respect to Hupp’s verbal interaction with\\n\\nTrooper Cook. The video evidence shows Hupp running toward Trooper Cook, with her\\n\\narms to her side and her hands empty, after he pulled a gun on her father-in-law’s dog.\\n\\n\\n\\n\\n 15\\n\\fShe testified that she said only “Whoa, whoa, don’t do that, stop.” J.A. 121–22. 5 Even if\\n\\nTrooper Cook’s testimony is to be believed—that Hupp told him that he could not tell her\\n\\nwhat to do on her property—such language is a challenge to the trooper’s authority and\\n\\ndoes not constitute the type of menacing language found be to obstructionist in Davis.\\n\\nThe parties dispute, however, whether Hupp also cursed at Trooper Cook when she\\n\\napproached him. Compare J.A. 210 (Trooper Cook’s testimony that Hupp was\\n\\n“screaming profanities” at him) and J.A. 509 (criminal complaint describing Hupp as\\n\\n“cursing”), with J.A. 122 (Hupp’s testimony that “[t]here was no cussing”) and J.A. 140\\n\\n(Dalton’s testimony that Hupp was not cursing). While a reasonable jury could credit\\n\\nTrooper Cook’s version of the interaction, it could instead believe Hupp that no “fighting\\n\\nor insulting words or other opprobrious language” were used. Wilmoth, 373 S.E.2d at\\n\\n487.\\n\\n Disputes of fact also exist with respect to Hupp’s alleged failure to comply with\\n\\nTrooper Cook’s order to step aside. See Lowery, 2018 WL 2193241, at *5. Trooper\\n\\nCook testified that he gave at least two orders to Hupp to step back, with which she\\n\\nrefused to comply. J.A. 570. Specifically, he testified that he told Hupp to “step back”;\\n\\nthat Hupp responded, “You can’t tell me to f-ing do that”; that he then told Hupp,\\n\\n“Ma’am, I’m not asking you; I’m telling you. Step back”; and that Hupp was “coming\\n\\nback with her opinions and why she’s not going to comply.” J.A. 215. The defense’s\\n\\n\\n 5\\n The video does not contain clear audio of the incident. Therefore, we must look\\nto the parties’ respective deposition testimony and other evidence in the record regarding\\nwhat was said.\\n\\n 16\\n\\fexpert described three orders for Hupp to step back. J.A. 443. 6 Hupp, on the other hand,\\n\\ntestified that her only words to Trooper Cook were, “Whoa, whoa, don’t do that, stop”\\n\\nand that she “didn’t get a chance to hear” any of Trooper Cook’s orders. J.A. 121–22.\\n\\nTrooper Cook even acknowledged that Hupp had only “a split second to comply” with\\n\\nhis order before he grabbed her arm. J.A. 604. Clearly, there is a dispute as to whether\\n\\nHupp refused to comply with Trooper Cook’s orders or was even given the opportunity to\\n\\ncomply with them before she was arrested mere seconds later.\\n\\n Indeed, there is evidence to suggest that, rather than defying Trooper Cook’s order\\n\\nto step back, Hupp was actually acting to comply with his earlier order to restrain Buddy.\\n\\nHupp testified in deposition that she approached Trooper Cook and Buddy partly in\\n\\nresponse to Trooper Cook’s undisputed command to “get control of the dog” or “get a\\n\\nhold of your dog.” J.A. 121, 201, 569–70. Although Trooper Cook testified that Hupp\\n\\nbegan to obstruct him when she approached him in an “aggressive manner,” J.A. 209–10,\\n\\nTrooper Michael testified that Hupp’s “coming down the hill” toward Trooper Cook and\\n\\nBuddy after Trooper Cook’s command to control Buddy “could be viewed as complying\\n\\nwith his request,” J.A. 316.\\n\\n On this disputed evidence, we cannot conclude that a reasonable officer in Trooper\\n\\nCook’s position would have believed that probable cause existed for Hupp’s arrest. With\\n\\n\\n 6\\n All of these orders, and Hupp’s responses and “opinions,” are alleged to have\\nbeen spoken in the incredibly short period of two seconds. Such a back-and-forth\\nexchange would seem to require more than two seconds. At this stage, however, like the\\ndistrict court, we make no determination regarding the credibility of Trooper Cook’s\\ntestimony.\\n\\n 17\\n\\fthe facts viewed in the light most favorable to Hupp, the record shows that she ran to\\n\\nTrooper Cook to comply with his order to have Buddy controlled. Her arms were down\\n\\nat her side and her hands visibly empty. She told Trooper Cook to stop but did not curse\\n\\nat him. Yet a mere second or two later, before she heard any order to move, Trooper\\n\\nCook grabbed her arm and flung her to the ground. Such facts do not reasonably support\\n\\na charge of obstruction under West Virginia law. Accordingly, we reverse the grant of\\n\\nsummary judgment on the false arrest claim. 7\\n\\n 2. Excessive Force\\n\\n Turning to Hupp’s excessive force claim, we also conclude that the district court\\n\\nerred in granting summary judgment to Trooper Cook on qualified immunity grounds.\\n\\nThe Fourth Amendment prohibits police officers from “using excessive force to seize a\\n\\nfree citizen.” Jones v. Buchanan, 325 F.3d 520, 527 (4th Cir. 2003); Graham v. Connor,\\n\\n490 U.S. 386, 395 (1989). Rather, police officers are constitutionally permitted to use\\n\\nonly that force which is reasonable under the circumstances.\\n\\n\\n\\n\\n 7\\n Appellants presented expert reports and deposition testimony from two expert\\nwitnesses, an expert in canine behavior and an expert in police training. Appellants argue\\nthat the expert testimony establishes the unreasonableness of Trooper Cook’s actions in\\nthe way in which he approached Buddy and drew his gun. According to Appellants, the\\ndistrict court’s failure to engage with any of their proffered expert testimony constitutes\\nreversible error in itself. As we have explained, the district court’s grant of qualified\\nimmunity on the false arrest claim is reversed for reasons other than the court’s failure to\\nengage with the expert evidence. That being said, we note that the district court did not\\naddress the expert testimony in its evaluation of the summary judgment motions. We\\nexpect that upon remand, the expert testimony presented by the parties will be\\nappropriately addressed, including any objections to the admissibility of that testimony.\\n\\n 18\\n\\f In determining whether excessive force was used, we consider the facts “from the\\n\\nperspective of a reasonable officer on the scene,” without the “20/20 vision of hindsight.”\\n\\nGraham, 490 U.S. at 397. Therefore, while we do not consider the officer’s “intent or\\n\\nmotivation,” Jones, 325 F.3d at 527 (quoting Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir.\\n\\n1996)), we ask “whether a reasonable officer in the same circumstances would have\\n\\nconcluded that a threat existed justifying the particular use of force,” Elliott, 99 F.3d at\\n\\n642 (citing Graham, 490 U.S. at 396–97). In answering this question, we consider\\n\\nseveral factors, including “the severity of the crime at issue,” whether the “suspect\\n\\npose[d] an immediate threat to the safety of the officers or others,” and whether the\\n\\nsuspect was “actively resisting arrest or attempting to evade arrest by flight.” Graham,\\n\\n490 U.S. at 396; Jones, 325 F.3d at 527. We also consider the extent of the plaintiff’s\\n\\ninjuries. Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994). Ultimately, we must\\n\\ndecide “whether the totality of the circumstances justifie[d] a particular sort of . . .\\n\\nseizure.” Smith, 781 F.3d at 101 (omission in original) (quoting Tennessee v. Garner,\\n\\n471 U.S. 1, 8–9 (1985)).\\n\\n Here, Hupp alleges that Trooper Cook used unlawful force against her by\\n\\n“grabbing and throwing” her to the ground and “pushing her against the police car.” J.A.\\n\\n25. We first dispense with Hupp’s argument that because she was unlawfully arrested,\\n\\nthe use of any force was necessarily unconstitutional. Certainly, we may consider any\\n\\nlack of probable cause for the arrest as we evaluate the reasonableness of the force used.\\n\\nBut we consider the crime that is alleged to have been committed in connection with our\\n\\noverall analysis of all of the circumstances surrounding the use of force. See Graham,\\n\\n 19\\n\\f490 U.S. at 396; Jones, 325 F.3d at 528–31 (explaining that the lack of any crime\\n\\ncommitted by plaintiff weighed heavily in favor of plaintiff’s excessive force claim but\\n\\nnonetheless evaluating remaining Graham factors).\\n\\n Moreover, we do not make any determination as to whether Hupp’s arrest was\\n\\nactually unlawful. Our finding that Trooper Cook is not entitled to qualified immunity on\\n\\nthe false arrest claim at this stage of litigation does not preclude a finding at a later stage\\n\\nthat he lawfully arrested Hupp; a trier of fact could resolve the factual disputes that\\n\\ncurrently exist in Trooper Cook’s favor. Therefore, we cannot agree with Hupp that our\\n\\nevaluation of the grant of qualified immunity on the excessive force claim turns entirely\\n\\non any lack of probable cause for her arrest. Instead, we evaluate the totality of the\\n\\ncircumstances surrounding the use of force against her.\\n\\n In evaluating those circumstances, we note that the extent of Hupp’s injuries is\\n\\nslight. The complaint alleges that Hupp suffered emotional trauma, including anxiety and\\n\\nan inability to sleep, as well as physical injuries. According to her medical records, Hupp\\n\\nsuffered from middle and lower back pain and was diagnosed with a contusion and\\n\\nlumbosacral strain two days after the incident with Trooper Cook. J.A. 543–44. The\\n\\nrecord contains no additional evidence of injury. There is no evidence of serious or\\n\\npermanent physical injuries. Cf. Rowland, 41 F.3d at 172, 174 (finding extent of injuries\\n\\nsignificant where plaintiff suffered torn ligament in his leg, underwent two surgeries, and\\n\\nremained permanently partially disabled).\\n\\n Hupp’s minor injuries, however, are “but one ‘consideration in determining\\n\\nwhether force was excessive.’” E.W. by and through T.W. v. Dolgos, 884 F.3d 172, 185\\n\\n 20\\n\\f(4th Cir. 2018) (quoting Jones, 325 F.3d at 530). Other factors call into question the\\n\\nreasonableness of the use of force against Hupp. First, the severity of the crime for which\\n\\nshe was arrested is slight: obstruction is a misdemeanor. See W. Va. Code § 61-5-17(a).\\n\\nWhen the offense is a “minor one,” we have found “that the first Graham factor weighed\\n\\nin plaintiff’s favor.” Jones, 325 F.3d at 528 (citations omitted). We see no reason to find\\n\\notherwise here.\\n\\n Second, the evidence suggests that Hupp did not “pose[ ] an immediate threat to\\n\\nthe safety of the officers or others.” Graham, 490 U.S. at 396; Jones, 325 F.3d at 528.\\n\\nThe district court found that this factor weighed in favor of qualified immunity, as Hupp\\n\\npositioned herself between Trooper Cook and Buddy, “which could reasonably be\\n\\nconstrued as hindering Cook’s ability to protect himself.” J.A. 620. A review of the\\n\\nrecord, however, suggests otherwise. Hupp is a slender, short, 113-pound female.\\n\\nTrooper Cook, on the other hand, weighs 200 pounds, is a trained police officer, and had\\n\\nundergone training in how to identify and handle aggressive dogs months before Hupp’s\\n\\narrest. Trooper Cook was armed, had his gun drawn, and the video shows that Hupp\\n\\napproached him with her arms down and hands visibly empty. Hupp stood perpendicular\\n\\nto Trooper Cook, did not place herself directly in front of him or his drawn gun, and it\\n\\nwas only after Trooper Cook grabbed her arm that she moved in front of his weapon. In\\n\\nlight of these facts, we cannot agree with the district court that, as a matter of law, Hupp\\n\\nposed a sufficient threat to tip the scale in Trooper Cook’s favor. See Smith, 781 F.3d at\\n\\n102 (finding that second Graham factor weighed in favor of section 1983 plaintiff where\\n\\nplaintiff was a “smaller woman,” officer was “a pretty good size man” as a “200-\\n\\n 21\\n\\fsomething-pound man,” and officer had no reason to believe that the plaintiff was\\n\\narmed); see also Rowland, 41 F.3d at 174 (finding “no threat to the officer or anyone\\n\\nelse” where plaintiff was not armed, officer did not suspect plaintiff was armed, and there\\n\\nwas no “real evidence that this relatively passive, retarded man was a danger to the\\n\\nlarger, trained police officer”).\\n\\n Third, there is disputed evidence of Hupp’s resistance to arrest. The video depicts\\n\\na brief struggle between Hupp and Trooper Cook lasting mere seconds after he grabbed\\n\\nher arm and before she fell to the ground. Trooper Cook grabbed Hupp’s arm mere\\n\\nseconds after she approached him and, according to Hupp, before she had the opportunity\\n\\nto hear any order that he may have given for her to move. She testified that her reaction\\n\\nafter having her arm seized was to try to put her arms up in surrender. J.A. 123. We\\n\\nhave held that a reasonable officer could not believe that the “initial act of pulling [one’s]\\n\\narm away” when an officer grabs a person “without warning or explanation” justifies the\\n\\nofficer’s decision to throw the person to the ground. Smith, 781 F.3d at 103.\\n\\n Trooper Cook, on the other hand, testified that Hupp took a “fighting stance” with\\n\\nhim and that he “stiff armed” her in order to holster his weapon. J.A. 219, 571. Trooper\\n\\nCook also testified that immediately before Hupp fell to the ground, she grabbed his\\n\\nclothing and cursed at him. 8 On these disputed versions of the facts, and in light of the\\n\\nother Graham factors that are unfavorable to Trooper Cook, we cannot say that a\\n\\n\\n 8\\n Hupp’s alleged grabbing of Trooper Cook is not captured in the video because\\nshe allegedly did so when his back was turned to the camera and blocking the camera’s\\nview of Hupp.\\n\\n 22\\n\\freasonable officer would consider Trooper Cook’s use of force reasonable under the\\n\\ncircumstances. See Rowland, 41 F.3d at 174 (concluding that disputed versions of\\n\\nplaintiff’s resistance combined with other “unfavorable” Graham factors precluded\\n\\nqualified immunity on excessive force claim).\\n\\n 3. Malicious Prosecution\\n\\n We next address Hupp’s section 1983 malicious prosecution claim. A malicious\\n\\nprosecution claim brought under section 1983 “is properly understood as a Fourth\\n\\nAmendment claim for unreasonable seizure which incorporates certain elements of the\\n\\ncommon law tort.” Evans v. Chalmers, 703 F.3d 636, 646 (4th Cir. 2012) (quoting\\n\\nLambert v. Williams, 223 F.3d 257, 261 (4th Cir. 2000)); see Manuel v. City of Joliet, Ill.,\\n\\n137 S. Ct. 911, 919 (2017) (“If the complaint is that a form of legal process resulted in\\n\\npretrial detention unsupported by probable cause, then the right allegedly infringed lies in\\n\\nthe Fourth Amendment.”). To prove such a claim, a plaintiff must show “that the\\n\\ndefendant (1) caused (2) a seizure of the plaintiff pursuant to legal process unsupported\\n\\nby probable cause, and (3) criminal proceedings terminated in plaintiff’s favor.” Evans,\\n\\n703 F.3d at 647.\\n\\n There is no dispute here that Hupp was arrested, prosecuted, and acquitted. What\\n\\nis disputed is whether probable cause existed for Hupp’s prosecution. On this point, the\\n\\ndistrict court determined that probable cause existed for Hupp’s arrest and that the\\n\\nmagistrate’s subsequent finding of probable cause rendered Hupp’s prosecution\\n\\nreasonable. J.A. 624. To be sure, we have held that “[o]nce a pretrial seizure has been\\n\\nrendered reasonable by virtue of a probable cause determination by a neutral and\\n\\n 23\\n\\fdetached magistrate, the continuing pretrial seizure of a criminal defendant—either by\\n\\ndetention or by bond restrictions—is reasonable.” Brooks v. City of Winston-Salem, N.C.,\\n\\n85 F.3d 178, 184 (4th Cir. 1996). We later explained, though, that a finding of probable\\n\\ncause by a neutral magistrate only “weigh[s] heavily toward a finding that [the\\n\\ndefendant] is immune” from suit. Merchant v. Bauer, 677 F.3d 656, 664 (4th Cir.)\\n\\n(quoting Wadkins v. Arnold, 214 F.3d 535, 541 (4th Cir. 2000)), cert. denied, 568 U.S.\\n\\n1068 (2012). Thus, where a police officer takes certain steps, such as first conferring\\n\\nwith a prosecutor about moving forward with a criminal prosecution, and a magistrate\\n\\njudge later affirms the officer’s determination that probable cause exists for the\\n\\nprosecution, those steps weigh in favor of a finding of qualified immunity. They do not\\n\\nend the qualified immunity inquiry, however, as they “need only appropriately be taken\\n\\ninto account in assessing the reasonableness of [the officer’s] actions.” Id. (internal\\n\\nquotation marks and citation omitted). A grant of qualified immunity still rests on our\\n\\ndetermination that an officer acted reasonably under the circumstances.\\n\\n Because a magistrate’s finding of probable cause is but a factor in our\\n\\nconsideration of the overall reasonableness of the officer’s actions, a defendant to a\\n\\nmalicious prosecution claim is not absolved from liability when the magistrate’s\\n\\nprobable-cause finding “is predicated solely on a police officer’s false statements.”\\n\\nManuel, 137 S. Ct. at 918. An officer who lies to secure a probable-cause determination\\n\\ncan hardly be called reasonable. Likewise, where an officer provides misleading\\n\\ninformation to the prosecuting attorney or where probable cause is “plainly lacking,”\\n\\nMcKinney v. Richland Cty. Sheriff’s Dep’t, 431 F.3d 415, 419 (4th Cir. 2005), the\\n\\n 24\\n\\fprocedural steps taken by an officer no longer afford a shield against a Fourth\\n\\nAmendment claim. This is because “[l]egal process has gone forward, but it has done\\n\\nnothing to satisfy the Fourth Amendment’s probable-cause requirement.” Manuel, 137 S.\\n\\nCt. at 918–19.\\n\\n Hupp contends that the magistrate’s finding of probable cause does not afford\\n\\nTrooper Cook qualified immunity on her malicious prosecution claim because the\\n\\nprobable-cause finding rested on false statements made by Trooper Cook in the criminal\\n\\ncomplaint against her. Specifically, Hupp asserts that the criminal complaint falsely\\n\\nstated, inter alia, that she refused to comply with Trooper Cook’s orders to “step aside,”\\n\\nbegan cursing at him, “raised her hands towards” him before he grabbed her arm, and\\n\\nthen grabbed at him and “began cursing” after he grabbed her arm. J.A. 509; Opening\\n\\nBr. 18, 55.\\n\\n We agree with Hupp that the district court’s finding of qualified immunity on this\\n\\nclaim was in error. As we have explained, disputes of fact preclude a finding at this stage\\n\\nthat a reasonable officer would have believed that probable cause existed for Hupp’s\\n\\narrest. Those disputes relate to many of the facts set forth in the criminal complaint on\\n\\nwhich the magistrate relied. For example, there is a dispute as to whether Hupp refused\\n\\nto comply with Trooper Cook’s orders for her to move or whether she was instead\\n\\nattempting to obey his order to control Buddy. There is also a dispute as to whether\\n\\nHupp was cursing at Trooper Cook. Moreover, contrary to Trooper Cook’s statement in\\n\\nthe criminal complaint, the video clearly depicts Hupp’s hands down at her side during\\n\\n\\n\\n 25\\n\\fthe entirety of the few seconds before Trooper Cook grabbed her arm. It was only after\\n\\nhe grabbed her arm that she struggled, very briefly, with him.\\n\\n If we excise the contested statements from the criminal complaint, the additional\\n\\nfacts available to the magistrate do not, as the district court found, provide “ample\\n\\nevidence” for a probable-cause determination. J.A. 624. The district court emphasized\\n\\nthe fact that Hupp “stepped in between the dog and the undersigned officer,” which,\\n\\naccording to the district court, showed that Hupp stepped in between Buddy and Trooper\\n\\nCook as Trooper Cook was attempting to protect himself from the dog. J.A. 509, 624.\\n\\nHowever, in the criminal complaint, Trooper Cook also clearly stated that Buddy had\\n\\n“reached the end of the tether” and could not “reach” Trooper Cook. J.A. 509. Contrary\\n\\nto showing that Hupp interfered with Trooper Cook’s ability to protect himself from\\n\\nBuddy, the complaint established that Trooper Cook knew Buddy was no longer a danger\\n\\nto him. No other basis for Hupp’s alleged obstruction of Trooper Cook is identified in\\n\\nthe complaint.\\n\\n Given the disputes of the underlying historical facts, the supported assertion that\\n\\nTrooper Cook’s statements in the criminal complaint were not entirely truthful, and the\\n\\nlack of undisputed evidence that otherwise would support a probable-cause finding, we\\n\\ncannot find that Trooper Cook is entitled to qualified immunity on Hupp’s malicious\\n\\nprosecution claim under section 1983.\\n\\n 4. Common Law Malicious Prosecution\\n\\n Trooper Cook’s entitlement to immunity on Hupp’s common law malicious\\n\\nprosecution claim fares no better. Under West Virginia law, a plaintiff bringing a\\n\\n 26\\n\\fmalicious prosecution claim must show “(1) that the prosecution was set on foot and\\n\\nconducted to its termination, resulting in plaintiff’s discharge; (2) that it was caused or\\n\\nprocured by defendant; (3) that it was without probable cause; and (4) that it was\\n\\nmalicious.” Goodwin v. City of Shepherdstown, 825 S.E.2d 363, 368 (W. Va. 2019)\\n\\n(citation omitted). Where a “want of probable cause for [the] prosecution is shown by a\\n\\npreponderance of the evidence,” malice may be inferred. Truman v. Fid. & Cas. Co. of\\n\\nN.Y., 123 S.E.2d 59, 68 (W. Va. 1961); Morton v. Chesapeake & Ohio Ry. Co., 399\\n\\nS.E.2d 464, 467 (W. Va. 1990).\\n\\n The district court determined that, like with the section 1983 malicious\\n\\nprosecution claim, Trooper Cook is entitled to qualified immunity on the common law\\n\\nclaim because probable cause existed for Hupp’s arrest. The qualified immunity\\n\\navailable against claims brought under section 1983 generally does not extend to\\n\\ncommon law claims. Nonetheless, West Virginia affords immunity “from personal\\n\\nliability for official acts if the involved conduct did not violate clearly established laws of\\n\\nwhich a reasonable official would have known.” W. Va. Reg’l Jail & Corr. Facility Auth.\\n\\nv. A.B., 766 S.E.2d 751, 762 (W. Va. 2014) (citation omitted). The state’s qualified\\n\\nimmunity doctrine borrows heavily from the analogous federal qualified immunity\\n\\njurisprudence but also requires an additional finding that the defendant’s alleged conduct\\n\\nnot be “fraudulent, malicious, or otherwise oppressive” to the plaintiff. Id.; Hutchison v.\\n\\nCity of Huntington, 479 S.E.2d 649, 659 (W. Va. 1996).\\n\\n As discussed above, questions of fact exist that must first be resolved before a\\n\\ncourt can determine that a reasonable officer in Trooper Cook’s position would have\\n\\n 27\\n\\fbelieved that probable cause existed for Hupp’s arrest and prosecution. Therefore,\\n\\nTrooper Cook is not entitled to immunity on Hupp’s common law malicious prosecution\\n\\nclaim, and the district court’s grant of summary judgment is reversed.\\n\\n * * *\\n\\n To summarize, qualified immunity is appropriate at this stage only if there are no\\n\\ndisputes of the historical facts underlying the false arrest, excessive force, and malicious\\n\\nprosecution claims. As we have explained, disputes exist. Those disputes must be\\n\\nsubmitted to a jury. The district court may then “reserve for itself the legal question of\\n\\nwhether [Trooper Cook] is entitled to qualified immunity on the facts found by the jury.”\\n\\nWillingham, 412 F.3d at 560.\\n\\n B.\\n\\n We turn finally to Appellants’ claims that Trooper Cook unlawfully entered\\n\\nMyers’s home and unlawfully seized electronic devices from within the home. Under the\\n\\nFourth Amendment, “searches and seizures inside a home without a warrant are\\n\\npresumptively unreasonable” and, thus, presumptively unconstitutional. Payton v. New\\n\\nYork, 445 U.S. 573, 586 (1980); United States v. Yengel, 711 F.3d 392, 396 (4th Cir.\\n\\n2013). This rule is subject to “narrow and well-delineated” exceptions, Yengel, 711 F.3d\\n\\nat 396, one of which is when exigent circumstances justify the warrantless entry of a\\n\\nhome, Mincey v. Arizona, 437 U.S. 385, 392–94 (1978). Exigent circumstances that may\\n\\njustify a warrantless entry include “the imminent destruction of evidence.” United States\\n\\nv. Brown, 701 F.3d 120, 126 (4th Cir. 2012). That is, police officers may enter a home\\n\\nwithout a warrant when they “(1) have probable cause to believe that evidence of illegal\\n\\n 28\\n\\factivity is present and (2) reasonably believe that evidence may be destroyed or removed\\n\\nbefore they could obtain a search warrant.” United States v. Cephas, 254 F.3d 488, 494–\\n\\n95 (4th Cir. 2001) (citing United States v. Turner, 650 F.2d 526, 528 (4th Cir. 1981)).\\n\\nLikewise, “[w]here law enforcement authorities have probable cause to believe that\\n\\n[property] holds contraband or evidence of a crime,” warrantless seizure of the property\\n\\nis permitted under the Fourth Amendment “if the exigencies of the circumstances demand\\n\\nit.” United States v. Place, 462 U.S. 696, 701 (1983).\\n\\n Factors to be considered in determining whether exigent circumstances justify a\\n\\nwarrantless entry include: “(1) the degree of urgency involved and the amount of time\\n\\nnecessary to obtain a warrant; (2) the officers’ reasonable belief that the contraband is\\n\\nabout to be removed or destroyed; (3) the possibility of danger to police guarding the site;\\n\\n(4) information indicating the possessors of the contraband are aware that the police are\\n\\non their trail; and (5) the ready destructibility of the contraband.” Turner, 650 F.2d at\\n\\n528. In evaluating these factors, courts consider “[t]he appearance of the scene of the\\n\\nsearch in the circumstances presented as it would appear to reasonable and prudent men\\n\\nstanding in the shoes of the officers.” United States v. Reed, 935 F.2d 641, 643 (4th Cir.\\n\\n1991) (alteration in original) (citations omitted).\\n\\n This case does not present the usual case for exigency; it does not involve a\\n\\nwarrantless entry into a home to seize contraband that may be imminently destroyed. See\\n\\nCephas, 254 F.3d at 495–96 (finding exigency where officer had probable cause to\\n\\nbelieve marijuana was inside apartment and would be destroyed if officer waited to\\n\\nsecure warrant); Brown, 701 F.3d at 126–27 (finding exigency where probable cause\\n\\n 29\\n\\fexisted to believe that defendant had evidence of child pornography on computers at\\n\\nwork that could be deleted before a warrant was obtained). Rather, this case involves a\\n\\nwarrantless entry into a home to seize evidence that the police officer understood would\\n\\nnot be destroyed. The video was taken by Hupp’s husband, and Trooper Cook conceded\\n\\nthat he believed Hupp’s husband was glad to have the evidence and would not want to\\n\\npart with it. Ryan recorded the video as “[p]roof, if anything were to happen,” for his\\n\\nwife’s benefit. J.A. 160. That is, he believed that the video could exonerate his wife, not\\n\\nincriminate her. Thus, this case is unlike the “vast majority of cases in which evidence is\\n\\ndestroyed by persons who are engaged in illegal conduct, [where] the reason for the\\n\\ndestruction is fear that the evidence will fall into the hands of law enforcement.”\\n\\nKentucky v. King, 563 U.S. 452, 461 (2011).\\n\\n 1.\\n\\n Appellants argue that the exigency test cannot be satisfied as a matter of law\\n\\nbecause there is no evidence that Ryan Hupp intended to destroy or conceal the video.\\n\\nTrooper Cook counters that there is evidence that Ryan intended to destroy or at least\\n\\nconceal the video from the police before a warrant could issue. According to Trooper\\n\\nCook, Ryan was “glad to have” the video only before he realized that Trooper Cook\\n\\nwanted it. Resp. Br. 39 n.150. Trooper Cook points to evidence that after he entered the\\n\\nhouse and asked about the video, Ryan told him, “Don’t worry. I deleted it. It was on\\n\\nthis phone.” J.A. 258. Additionally, another of Ryan’s family members, Dalton, is heard\\n\\non the video telling Ryan not to let the troopers know that Ryan was recording them.\\n\\n\\n\\n 30\\n\\fThus, Trooper Cook asserts, it was reasonable for him to believe that if he did not enter\\n\\nand seize the devices at that time, the evidence would be destroyed or concealed.\\n\\n The evidence highlighted by Trooper Cook, however, is irrelevant to the exigency\\n\\nanalysis. This is because the “existence of exigent circumstances must be determined as\\n\\nof the moment of the warrantless entry of the officers onto the premises.” Reed, 935 F.2d\\n\\nat 643. Ryan’s comments to Trooper Cook about deleting the video footage were made\\n\\nonly after Trooper Cook had entered Myers’s home and seized three of the electronic\\n\\ndevices. According to Trooper Cook’s own testimony, he stepped across the threshold\\n\\ninto the home, asked Myers’s family members that were in the house about the location\\n\\nof the video, received no response, began to seize electronic devices within sight, and\\n\\nonly then did Ryan “step[ ] forward from back up the hallway” and tell Trooper Cook\\n\\nthat he had deleted the video from his cell phone. J.A. 258–59. Similarly, Dalton’s\\n\\ncomments heard in the video were not made in Trooper Cook’s presence; an officer\\n\\nwould have heard those comments only after seizing the cell phone and watching the\\n\\nvideo. Thus, before Trooper Cook entered the home and began seizing the devices, his\\n\\nadmitted understanding was that Ryan was happy to have the video footage and would\\n\\nnot want to destroy it. Of course, we must determine whether a reasonable person in\\n\\nTrooper Cook’s position would have believed that Ryan intended to destroy the video.\\n\\nOn the facts presented to us, we see no reason to believe that an objective officer would\\n\\nhave believed any differently than Trooper Cook did—that Ryan had recorded his wife’s\\n\\narrest, was happy about having recorded it, and would not want to delete that recording.\\n\\n\\n\\n 31\\n\\f Trooper Cook’s subjective understanding, however, is not the determinative\\n\\nfactor. Rather, we must determine whether a reasonable officer in Trooper Cook’s\\n\\nposition would have believed that Ryan—or another of Hupp’s family members present\\n\\nat the time—was likely to destroy or conceal the video. See Reed, 935 F.2d at 643.\\n\\nBased on the information available to an officer in Trooper Cook’s position at the\\n\\nmoment that he entered Myers’s home, we cannot say as a matter of law that no\\n\\nreasonable officer would have believed that the video would be preserved while the\\n\\ntroopers obtained a warrant. Having heard Ryan yell to his wife not to worry because he\\n\\nrecorded her interaction with Trooper Cook, a reasonable officer could conclude, like\\n\\nTrooper Cook initially did, that Ryan was glad to have the video and would not destroy it.\\n\\nOn the other hand, Hupp was believed to have committed a crime; the video documenting\\n\\nthat crime was recorded by Hupp’s husband; and a reasonable officer could have believed\\n\\nthat, as Hupp’s husband, Ryan would conceal or destroy the video evidence of her crime\\n\\nbefore handing it over to the police. We are thus hesitant to find that, as a matter of law,\\n\\nTrooper Cook unreasonably believed that the video was likely to be concealed before a\\n\\nwarrant could issue. Instead, the question of whether such a belief was reasonable under\\n\\nthe circumstances known to the officers at the time of Trooper Cook’s entry into Myers’s\\n\\nhome must be submitted to a factfinder.\\n\\n Turning to the other exigency factors, we note that there is no evidence regarding\\n\\nthe time needed to secure a warrant. The record suggests, though, that there was little to\\n\\nno possibility of danger to the troopers if they stood guard while a warrant was secured.\\n\\nSee Turner, 650 F.2d at 528. Trooper Cook testified that when he first approached\\n\\n 32\\n\\fMyers’s house, he saw Hupp and Lindsey with a “pistol crossbow” but saw no arrows\\n\\nand believed that Hupp and Lindsey “were playing with something with [sic] the creek”\\n\\nnext to the house. J.A. 565–66. Trooper Cook did nothing to secure the crossbow and\\n\\napparently did not consider it a threat; in fact, there is evidence that the crossbow was a\\n\\nbroken plastic toy that belonged to Hupp’s three-year-old son. J.A. 85, 128, 141. Buddy,\\n\\nthe dog believed to be vicious, was tethered at the time of Hupp’s arrest. And although\\n\\nthe two troopers were outnumbered by Myers’s family members, one of those family\\n\\nmembers was a toddler, another was pregnant, and there is no evidence that any of them\\n\\nwere armed. Therefore, there does not appear to have been any danger to the troopers.\\n\\nSee Yengel, 711 F.3d at 398 (finding no exigency when officer was informed that there\\n\\nwas a grenade in house but other information available to officer indicated “stable nature\\n\\nof the threat”); United States v. Whitehorn, 813 F.2d 646, 649 (4th Cir. 1987) (affirming\\n\\nfinding that exigency did not justify warrantless bomb sweep when there was no evidence\\n\\n“that anyone was evacuated from the building or warned of the potential danger, or that\\n\\nthe agents had otherwise prepared for the risk of an exploding bomb”); cf. Reed, 935 F.2d\\n\\nat 642–43 (finding exigency where police officers saw sawed-off shotgun eighteen inches\\n\\nfrom man sleeping in a home where another man, known to carry firearms and with past\\n\\narrests for assault and brandishing weapons, resided).\\n\\n Nor was the video the only corroborating evidence of Hupp’s alleged crime;\\n\\nTrooper Michael was also a witness, as were several of Hupp’s family members. That\\n\\nfact, coupled with the minor crime for which Hupp was arrested, suggest that the level of\\n\\nurgency to obtain the video was not high. See Welsh v. Wisconsin, 466 U.S. 740, 750\\n\\n 33\\n\\f(1984) (“Our hesitation in finding exigent circumstances . . . is particularly appropriate\\n\\nwhen the underlying offense for which there is probable cause to arrest is relatively\\n\\nminor.”).\\n\\n While these other factors weigh against a finding of exigency, a jury could\\n\\nnonetheless find that Trooper Cook reasonably believed that the video was at risk of\\n\\nbeing deleted or concealed. Therefore, we decline Appellants’ invitation to find that\\n\\nTrooper Cook’s entry into Myers’s home and his seizure of the electronic devices were\\n\\nunreasonable as a matter of law. Instead, we remand for a trial to determine whether\\n\\nTrooper Cook’s actions were reasonable. 9\\n\\n 2.\\n\\n We also take a moment to address Trooper Cook’s view of the exigency exception\\n\\nto the warrant requirement. In an era in which cell phones are increasingly used to\\n\\ncapture much of what happens in daily life, it is important to emphasize the limitations\\n\\nthat the Fourth Amendment continues to place on a state’s seizure of video evidence.\\n\\n Trooper Cook testified that his regular practice is to seize any video recording that\\n\\nhe believes to contain evidence of a crime he is investigating. J.A. 237–39. But the\\n\\nexigent-circumstances exception does not permit police officers to do what Trooper Cook\\n\\nroutinely does: seize video evidence without a warrant even when there is no reason to\\n\\n\\n 9\\n Because we cannot say as a matter of law that an officer in Trooper Cook’s\\nposition would reasonably have believed that the video evidence would be concealed or\\ndestroyed before a warrant for the video’s seizure could be obtained, Trooper Cook is not\\nentitled to qualified immunity on the search and seizure claims. See Smith, 781 F.3d at\\n100.\\n\\n 34\\n\\fbelieve that the evidence will likely be destroyed or concealed. Such a rule would allow\\n\\nofficers to seize as a matter of course video-recording devices from not just those\\n\\ninvolved in an incident, but also from neighbors and other curious bystanders who\\n\\nhappen to record the events as they transpire. Under this view, police officers would\\n\\nlawfully be permitted to enter the home of every person living nearby who stands in her\\n\\ndoorway or window recording an arrest, to seize her recording device, and to do so\\n\\nwithout a warrant or her consent—simply because video evidence, by its nature, can be\\n\\neasily deleted.\\n\\n Such a view finds no support in our Fourth Amendment jurisprudence. While\\n\\nvideo evidence contained in a cell phone can be easily deleted or concealed, it is not\\n\\nmerely the ease with which evidence may be destroyed or concealed that dictates\\n\\nexigency. An officer must also have reason to believe that the evidence will be destroyed\\n\\nor concealed. In short, adopting the broad definition of exigency urged by Trooper Cook\\n\\nwould remove the exigent-circumstances exception to the warrant requirement from the\\n\\nclass of “narrow and well-delineated” exceptions permissible under the Fourth\\n\\nAmendment. Yengel, 711 F.3d at 396. It would convert exigency from an exception to\\n\\nthe rule.\\n\\n\\n\\n IV.\\n\\n For the foregoing reasons, we hold that the district court erred in granting\\n\\nsummary judgment to Trooper Cook on the false arrest, excessive force, malicious\\n\\nprosecution, and unlawful entry and seizure claims. We also hold that the district court\\n\\n 35\\n\\fproperly denied Appellants summary judgment on the unlawful entry and seizure-of-\\n\\ndevices claims. Accordingly, the district court’s order denying Appellants’ partial\\n\\nsummary judgment motion on the search and seizure claims is affirmed and its order\\n\\ngranting summary judgment to Trooper Cook is reversed. This matter is remanded to the\\n\\ndistrict court for trial on each of Appellants’ claims.\\n\\n\\n\\n AFFIRMED IN PART, REVERSED IN PART, AND REMANDED\\n\\n\\n\\n\\n 36\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4420181/\", \"author_raw\": \"at Charleston. Thomas E. Johnston, Chief District Judge\"}]}"},"judge1":{"kind":"string","value":"GREGORY"},"judge2":{"kind":"string","value":"KING"},"judge3":{"kind":"string","value":"GREGORY"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4642928/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Tiffanie HUPP; R.H., a Minor, by and Through His Next Friend, Tiffanie Hupp; Clifford Myers, Plaintiffs - Appellants, v. State Trooper Seth COOK; Colonel C.R. Jay Smithers, Defendants - Appellees, and West Virginia State Police, Defendant.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-07-25\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1845\n\n\nTIFFANIE HUPP; R.H., a minor, by and through his next friend, Tiffanie Hupp;\nCLIFFORD MYERS,\n\n Plaintiffs – Appellants,\n\n v.\n\nSTATE TROOPER SETH COOK; COLONEL C.R. JAY SMITHERS,\n\n Defendants – Appellees,\n\n and\n\nWEST VIRGINIA STATE POLICE,\n\n Defendant.\n\n\nAppeal from the United States District Court for the Southern District of West Virginia,\nat Charleston. Thomas E. Johnston, Chief District Judge. (2:17–cv–00926)\n\n\nArgued: April 2, 2019 Decided: July 25, 2019\n\n\nBefore GREGORY, Chief Judge, and KING, Circuit Judge. 1\n\n\nAffirmed in part, reversed in part, and remanded by published opinion. Chief Judge\nGregory wrote the opinion, in which Judge King joined.\n\n 1\n Judge Thacker was unable to participate in oral argument. The decision is filed\nby a quorum of the panel pursuant to 28 U.S.C. § 46(d).\n\fARGUED: John Eric Campbell, CAMPBELL LAW, Denver, Colorado;\nJustin F. Marceau, UNIVERSITY OF DENVER, Denver, Colorado, for Appellants.\nMichael Deering Mullins, STEPTOE & JOHNSON PLLC, Charleston, West Virginia,\nfor Appellees. ON BRIEF: Alene Anello, ALDF, Cotati, California, for Appellants.\nRobert L. Bailey, STEPTOE & JOHNSON PLLC, Charleston, West Virginia, for\nAppellees.\n\n\n\n\n 2\n\fGREGORY, Chief Judge:\n\n Appellant Tiffanie Hupp was arrested for obstruction when she attempted to stop a\n\nstate trooper from shooting her family’s dog. After her husband video-recorded the\n\nincident, the state trooper entered the family’s home, without consent and without a\n\nwarrant, and seized several of the family’s electronic devices. Hupp, her minor son, and\n\nher father-in-law filed suit against the state trooper, asserting various violations of the\n\nFourth Amendment under 42 U.S.C. § 1983. The district court granted summary\n\njudgment to the state trooper and denied Appellants’ motion for partial summary\n\njudgment. Because issues of fact exist, we affirm the denial of Appellants’ partial\n\nsummary judgment motion but reverse the grant of summary judgment in Trooper Seth\n\nCook’s favor and remand for trial on each of Appellants’ claims.\n\n\n\n I.\n\n A.\n\n Buddy, a 13-year-old husky-Akita mix, lives with his owner, Appellant Clifford\n\nMyers, in Waverly, West Virginia. Buddy has been the source of contention between\n\nMyers and his neighbor David Wayne, who lives across the street.\n\n On May 9, 2015, the police were called out in response to a dispute earlier that day\n\nbetween the two men over the dog. West Virginia State Troopers Seth Cook and Sean\n\nMichael responded to the call. Trooper Cook was there to provide backup to Trooper\n\nMichael. Upon their arrival, the troopers spoke with Myers, who was in his front yard\n\ndrinking a beer. The troopers then went across the street to speak with the Waynes. In\n\n 3\n\fspeaking with the Waynes, Trooper Cook was told of the “ongoing problem” with Myers\n\nover Buddy, that Buddy was, in their mind, “vicious and had killed several of their cats\n\nand had chased the children.” J.A. 302. Trooper Cook was also told that Buddy had\n\nchased Wayne’s grandmother back into the house and that Wayne’s grandfather had to\n\ntake a stick with him when he checked the mail “to shoo the dog away.” Id. 2\n\n At the time, Myers had another dog, a black Labrador, on a chain in his front yard;\n\nBuddy was loose in the yard. According to Myers, Trooper Cook was aware that Buddy\n\nwas not on a leash. Trooper Cook testified, however, that he did not see Buddy when he\n\nfirst went to speak with Myers. While the troopers spoke with the Waynes, Myers took\n\nthe Labrador off the chain and placed the chain on Buddy. Myers later explained that it\n\nwas mere happenstance that he switched the dogs; according to him, it was not because\n\n“the black lab was the friendlier of the two dogs.” J.A. 82.\n\n After speaking with the Waynes, the troopers returned to Myers’s house. Trooper\n\nMichael asked Myers for his identification. Myers asked his daughter, Lindsey, to\n\nretrieve it for him. As Lindsey headed back toward the house to retrieve the ID, Trooper\n\nCook followed her into Myers’s front yard. Trooper Cook testified that he followed\n\nLindsey “because of the people gathering in the door [of Myers’s home] and just a\n\ngeneral, again, situation awareness.” J.A. 208. At that point, Myers had six of his family\n\nmembers at his house, and Trooper Cook wanted to “have a little bit of personal contact\n\nwith them to, again, determine their nature” and determine if “there were potential other\n\n 2\n Myers maintained that Buddy had never harmed a person and simply chased\nsquirrels.\n\n 4\n\fpeople that [he] needed to be paying closer attention to.” J.A. 56, 207–08. Trooper Cook\n\nalso testified that, due to the slope of Myers’s front yard, he wanted to “get closer to\n\nwhere [he] could see better than from down at the road in the driveway looking up at a\n\nposition of tactical advantage over [him].” J.A. 208.\n\n Video evidence captured much, but not all, of what happened next. 3 A dog barked\n\nas Trooper Cook walked into Myers’s yard. J.A. 610 at 1:17–1:20. Trooper Cook, who\n\nwas trained to identify and “handle” aggressive dogs, took a few steps back after seeing\n\nBuddy. J.A. 189, 610 at 1:20–1:22. He then pulled his gun out and, holding it with his\n\nleft hand, pointed it at Buddy. J.A. 610 at 1:23–1:26. Hupp, Myers’s 113-pound\n\ndaughter-in-law, ran down the front yard from near the house toward Trooper Cook. Id.\n\nat 1:26–1:27. She stood with her left side next to Trooper Cook’s right side, her body\n\nperpendicular to Trooper Cook. Buddy was at Hupp’s right. Hupp’s arms were at her\n\nside and her hands were visibly empty. Id. at 1:26–1:28. Within seconds of Hupp’s\n\narrival, Trooper Cook grabbed Hupp’s left arm with his right hand. Id. at 1:29. A brief\n\nstruggle ensued during which Trooper Cook turned to his left, Hupp moved to her right\n\nand directly facing Trooper Cook, all while the two struggled for two seconds with\n\nTrooper Cook’s grasp on Hupp’s arm. Id. at 1:29–1:30. As Trooper Cook and Hupp\n\nspun around, Hupp fell to the ground. Id. at 1:31. When Hupp stood up, Trooper Cook\n\n 3\n To the extent the video depicts material facts of this case, we review those facts\nas they are depicted in the video. Scott v. Harris, 550 U.S. 372, 380–81 (2007). Where,\nhowever, the video “does not ‘clearly’ or ‘blatantly’ contradict” Hupp’s version of the\nfacts, we adopt her version in reviewing the grant of summary judgment to Trooper\nCook. Witt v. W. Va. State Police, Troop 2, 633 F.3d 272, 276–77 (4th Cir. 2011)\n(quoting Scott, 550 U.S. at 378).\n\n 5\n\fgrabbed her arms from behind and walked her to the police car parked a few feet away.\n\nId. at 1:34–39. Bending Hupp over the hood of the police car, the troopers handcuffed\n\nher. Id. at 1:40–2:05.\n\n Though not depicted clearly in the video, Trooper Cook testified that after seeing\n\nBuddy as he entered the yard, he yelled for someone to control the dog or to “get a hold\n\nof your dog.” J.A. 201, 569–70. According to Trooper Cook, he did not at first notice\n\nthat Buddy was on a chain. Hupp testified that she ran toward Trooper Cook both in\n\nresponse to Buddy’s barks but also in response to the trooper’s order to control the dog.\n\n Also not clear from the video is what was said by Trooper Cook and Hupp in their\n\nbrief encounter. Trooper Cook testified that he told Hupp at least twice to back away and\n\nthat her response was that he could not tell her what to do on her property. Trooper Cook\n\nalso maintained that Hupp was “cursing” and “screaming profanities” at him. J.A. 210,\n\n509. Hupp testified, on the other hand, that she did not hear any of Trooper Cook’s\n\norders and simply told him, “Whoa, whoa, don’t do that, stop.” J.A. 121.\n\n Hupp’s husband, Ryan, recorded the incident with his cell phone from inside\n\nMyers’s home. As Hupp was being arrested, she asked Ryan, “Did you get that on\n\nvideo?” J.A. 86. Ryan answered, “Don’t worry, babe. I’ve got that shit.” J.A. 244.\n\nTrooper Cook later testified that he understood that statement to mean that Ryan “was\n\nglad he had” the video and “wouldn’t get rid of it for his—his possession of it.” J.A. 247.\n\n Upon learning that a video had been recorded, Trooper Cook “stepped in” to\n\nMyers’s home without a warrant and without consent. J.A. 237, 258. He seized four\n\nelectronic devices: a child’s tablet and three cell phones, including Ryan’s phone that\n\n 6\n\frecorded the incident. J.A. 237, 572. 4 Trooper Cook explained in his deposition that it is\n\nhis practice to seize electronic recording devices without first obtaining a warrant if he\n\nbelieves that someone has used the device to capture evidence. The State Police retained\n\nthe devices for a month before returning them.\n\n B.\n\n Hupp was charged with obstruction under West Virginia Code § 61-5-17(a). She\n\nwas arraigned, and after the magistrate judge concluded that probable cause existed for\n\nher arrest, she was released on bond. Following a jury trial in the Wood County\n\nmagistrate court, Hupp was acquitted.\n\n Appellants Hupp, Myers, and Hupp’s minor son—who witnessed his mother’s\n\narrest—filed suit against Trooper Cook, West Virginia State Police Colonel C.R. “Jay”\n\nSmithers (the superintendent), and the West Virginia State Police. Appellants brought\n\nseveral claims for violation of their constitutional rights under 42 U.S.C. § 1983 and\n\nparallel state law claims. Appellants later amended their complaint, bringing claims\n\nagainst the police officers in their individual and official capacities and against the West\n\nVirginia State Police. The district court granted in part a motion to dismiss, dismissing\n\nthe claims against the West Virginia State Police and those brought against the police\n\nofficers in their official capacities. As a result, claims remained against only Trooper\n\nCook and Colonel Smithers in their individual capacities. The claims against Trooper\n\nCook included section 1983 claims for false arrest, excessive force, malicious\n\n 4\n Trooper Cook testified that after he “took the phones,” Ryan and Tiffanie Hupp\ngave him the passwords for the phones and signed a property receipt. J.A. 572–73.\n\n 7\n\fprosecution, unlawful search of Myers’s house, unlawful seizure of the electronic\n\ndevices, and unlawful seizure of Buddy; and state law claims for malicious prosecution,\n\nintentional infliction of emotional distress (outrage), and battery. A claim for supervisory\n\nliability under section 1983 also remained against Colonel Smithers.\n\n Trooper Cook and Colonel Smithers moved for summary judgment on all of the\n\nremaining claims, and Appellants moved for partial summary judgment on the false\n\narrest, excessive force, and unlawful search and seizure claims. The district court granted\n\nsummary judgment to Trooper Cook and Colonel Smithers and denied summary\n\njudgment to Appellants. The district court found that Trooper Cook is entitled to\n\nqualified immunity on the false arrest, excessive force, and malicious prosecution claims\n\nbrought under section 1983 as well as on the common law malicious prosecution claim.\n\nThe district court granted summary judgment to Trooper Cook on the outrage and battery\n\nclaims as well. Because the court found that Trooper Cook did not violate Hupp’s\n\nconstitutional rights, it granted summary judgment to Colonel Smithers on the one\n\nremaining claim of supervisory liability against him.\n\n The district court also granted summary judgment to Trooper Cook on the\n\nunlawful search and seizure claims. The court concluded that exigent circumstances\n\njustified the search of Myers’s home and the seizure of the electronic devices because an\n\nobjectively reasonable officer would have believed that Myers’s family members would\n\ndestroy or conceal the video evidence before a warrant could be obtained. With respect\n\nto the claim of unlawful seizure of Buddy, the court found that Trooper Cook’s actions\n\n\n\n 8\n\fdid not “meaningfully interfere[ ]” with Appellants’ “possessory interest in Buddy.” J.A.\n\n636.\n\n Appellants timely appealed the grant of summary judgment on the claims for false\n\narrest, excessive force, malicious prosecution, unlawful entry, and unlawful seizure of the\n\nelectronic devices. Appellants also appealed the denial of summary judgment in their\n\nfavor on the Fourth Amendment claims related to the entry of Myers’s home and seizure\n\nof the electronic devices. Appellants did not appeal the grant of summary judgment on\n\nthe supervisory liability claim, claim for unlawful seizure of Buddy, or the state law\n\nclaims of outrage and battery.\n\n The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), and\n\n1367, and we have jurisdiction under 28 U.S.C. § 1291.\n\n\n\n II.\n\n We review a district court’s grant of summary judgment de novo, “applying the\n\nsame legal standards as the district court, and viewing all facts and reasonable inferences\n\ntherefrom in the light most favorable to the nonmoving party.” Heyer v. U.S. Bureau of\n\nPrisons, 849 F.3d 202, 208 (4th Cir. 2017) (quoting T-Mobile Ne., LLC v. City Council of\n\nNewport News, 674 F.3d 380, 384–85 (4th Cir. 2012)). Summary judgment is\n\nappropriate “if the movant shows that there is no genuine dispute as to any material fact\n\nand the movant is entitled to judgment as a matter of law.” Id. (quoting Fed. R. Civ. P.\n\n56(a)). “A dispute is genuine if ‘a reasonable jury could return a verdict for the\n\nnonmoving party.’” Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013)\n\n 9\n\f(quoting Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012)). “A fact\n\nis material if it ‘might affect the outcome of the suit under the governing law.’” Id.\n\n(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).\n\n\n\n III.\n\n A.\n\n We first address the district court’s determination that Trooper Cook is entitled to\n\nqualified immunity on the claims for false arrest, excessive force, and malicious\n\nprosecution. “The doctrine of qualified immunity shields government officials from\n\nliability for civil damages when their conduct does not violate clearly established\n\nconstitutional or other rights that a reasonable officer would have known.” Sims v.\n\nLabowitz, 885 F.3d 254, 260 (4th Cir. 2018). The doctrine is intended to “balance[ ] two\n\nimportant interests—the need to hold public officials accountable when they exercise\n\npower irresponsibly and the need to shield officials from harassment, distraction, and\n\nliability when they perform their duties reasonably.” Smith v. Ray, 781 F.3d 95, 100 (4th\n\nCir. 2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). It “gives\n\ngovernment officials breathing room to make reasonable but mistaken judgments, and\n\nprotects all but the plainly incompetent or those who knowingly violate the law.” Stanton\n\nv. Sims, 571 U.S. 3, 5 (2013) (internal quotation marks and citation omitted).\n\n An official is not entitled to qualified immunity if he or she deprived an individual\n\nof a constitutional right and that right was clearly established at the time of the violation.\n\nPearson, 555 U.S. at 231. Our analysis is, therefore, two-fold. We must determine\n\n 10\n\fwhether the facts, viewed in the light most favorable to Appellants, show that Trooper\n\nCook violated Appellants’ constitutional or other rights and whether those rights were\n\nclearly established at the time of Trooper Cook’s conduct such that a reasonable officer\n\nwould have known that the conduct was unconstitutional. Smith, 781 F.3d at 100. We\n\nmay consider either prong of the analysis first. Sims, 885 F.3d at 260. The question of\n\nwhether a right is clearly established is a question of law for the Court to decide.\n\nPritchett v. Alford, 973 F.2d 307, 312 (4th Cir. 1992). The question of whether a\n\nreasonable officer would have known that the conduct at issue violated that right, on the\n\nother hand, cannot be decided on summary judgment if disputes of the historical facts\n\nexist. Smith, 781 F.3d at 100. Thus, “while the purely legal question of whether the\n\nconstitutional right at issue was clearly established ‘is always capable of decision at the\n\nsummary judgment stage,’ a genuine question of material fact regarding ‘[w]hether the\n\nconduct allegedly violative of the right actually occurred . . . must be reserved for trial.’”\n\nWillingham v. Crooke, 412 F.3d 553, 559 (4th Cir. 2005) (alteration and omission in\n\noriginal) (quoting Pritchett, 973 F.2d at 313).\n\n 1. False Arrest\n\n We begin with Hupp’s false arrest claim. The Fourth Amendment protects “[t]he\n\nright of the people to be secure in their persons . . . against unreasonable searches and\n\nseizures.” U.S. Const. amend. IV. A seizure is unreasonable under the Fourth\n\nAmendment if it is not based on probable cause. Dunaway v. New York, 442 U.S. 200,\n\n213 (1979). Thus, “[i]f a person is arrested when no reasonable officer could believe . . .\n\nthat probable cause exists to arrest that person, a violation of a clearly established Fourth\n\n 11\n\fAmendment right to be arrested only upon probable cause ensues.” Rogers v. Pendleton,\n\n249 F.3d 279, 290 (4th Cir. 2001) (citation omitted).\n\n The district court determined that a reasonable officer would have believed that\n\nprobable cause existed for Hupp’s arrest for obstruction. Appellants, on the other hand,\n\ncontend that the historical facts material to a probable cause finding are in dispute.\n\n“Probable cause is determined by a ‘totality-of-the-circumstances’ approach.” Smith v.\n\nMunday, 848 F.3d 248, 253 (4th Cir. 2017) (citing Illinois v. Gates, 462 U.S. 213, 230\n\n(1983)). The inquiry “turns on two factors: ‘the suspect’s conduct as known to the\n\nofficer, and the contours of the offense thought to be committed by that conduct.’” Id.\n\n(quoting Graham v. Gagnon, 831 F.3d 176, 184 (4th Cir. 2016)). While we look to the\n\ninformation available to the officer on the scene at the time, we apply an objective test to\n\ndetermine whether a reasonably prudent officer with that information would have thought\n\nthat probable cause existed for the arrest. Graham, 831 F.3d at 185. Evidence sufficient\n\nto secure a conviction is not required, but probable cause exists only if there is sufficient\n\nevidence on which a reasonable officer at the time could have believed that probable\n\ncause existed for the arrest. Wong Sun v. United States, 371 U.S. 471, 479 (1963).\n\n Because the probable cause inquiry is informed by the “contours of the offense” at\n\nissue, we are guided by West Virginia law in determining the scope of the offense of\n\nobstruction proscribed by West Virginia Code § 61-5-17(a)—the offense for which Hupp\n\nwas arrested. Rogers, 249 F.3d at 291; see Graham, 831 F.3d at 188 (Although “an\n\nactual lack of probable cause is not dispositive for qualified immunity purposes[,] . . .\n\n[t]he boundaries of the statute [allegedly violated by the plaintiff] are extremely relevant\n\n 12\n\fto an assessment of whether [an officer’s] mistake was reasonable.”). The plain language\n\nof the statute establishes that a person is guilty of obstruction when she, “by threats,\n\nmenaces, acts or otherwise forcibly or illegally hinders or obstructs or attempts to hinder\n\nor obstruct a law-enforcement officer, probation officer or parole officer acting in his or\n\nher official capacity.” W. Va. Code § 61-5-17(a).\n\n Interpreting this statute, the Supreme Court of Appeals of West Virginia has held\n\nthat a person is guilty of obstruction when she “check[s] or hamper[s] the action of the\n\nofficer,” does “something which hinders or prevents or tends to prevent the performance\n\nof [the officer’s] legal duty,” or acts in “direct or indirect opposition or resistance to the\n\nlawful discharge of [the officer’s] official duty.” State v. Johnson, 59 S.E.2d 485, 487\n\n(W. Va. 1950). As West Virginia’s high court has “succinct[ly]” explained, to secure a\n\nconviction under section 61-5-17(a), the State must show “forcible or illegal conduct that\n\ninterferes with a police officer’s discharge of official duties.” State v. Davis, 735 S.E.2d\n\n570, 573 (W. Va. 2012) (quoting State v. Carney, 663 S.E.2d 606, 611 (2008)). Because\n\nconduct can obstruct an officer if it is either forcible or illegal, a person may be guilty of\n\nobstruction “whether or not force be actually present.” Johnson, 59 S.E.2d at 487.\n\nHowever, where “force is not involved to effect an obstruction,” the resulting obstruction\n\nitself is insufficient to establish the illegality required by section 61-5-17. Carney, 663\n\nS.E.2d at 611. That is, when force is not used, obstruction lies only where an illegal act\n\nis performed. This is because “lawful conduct is not sufficient to establish the statutory\n\noffense.” Id.\n\n\n\n 13\n\f Of particular relevance to our inquiry here, West Virginia courts have held that\n\n“when done in an orderly manner, merely questioning or remonstrating with an officer\n\nwhile he or she is performing his or her duty, does not ordinarily constitute the offense of\n\nobstructing an officer.” State v. Srnsky, 582 S.E.2d 859, 867 (W. Va. 2003) (quoting\n\nState ex rel. Wilmoth v. Gustke, 373 S.E.2d 484, 486 (W. Va. 1988)). For example, the\n\nSupreme Court of Appeals has found that no obstruction is committed when a property\n\nowner asks a law enforcement officer, “without the use of fighting or insulting words or\n\nother opprobrious language and without forcible or other illegal hindrance,” to leave her\n\nproperty. Wilmoth, 373 S.E.2d at 487. This principle is based on the First Amendment\n\n“right to question or challenge the authority of a police officer, provided that fighting\n\nwords or other opprobrious language is not used.” Id.; see Graham, 831 F.3d at 188\n\n(“Peaceful verbal criticism of an officer who is making an arrest cannot be targeted under\n\na general obstruction of justice statute . . . without running afoul of the First\n\nAmendment.” (citation omitted)).\n\n On the other hand, certain “threats, language, and menacing demeanor” can\n\nconstitute obstruction. State v. Davis, 483 S.E.2d 84, 87 (W. Va. 1996). In Davis, for\n\nexample, a police officer responded to a call of shots fired and encountered an intoxicated\n\nman who was fighting with his live-in girlfriend. Id. The man told the officer that he had\n\na loaded shotgun in the corner of the home, “gestured toward the gun, reminded the\n\nofficer in a threatening manner that it was loaded, and employed language indicative of\n\nboth his agitated state and his intention to discharge the gun at any time and any place he\n\nchose.” Id. The police officer exited the home and was forced to call for backup. Id. at\n\n 14\n\f86. The court concluded that the “verbal threats and behavior” “had the effect of\n\nhindering the police investigation of shots [ ] fired.” Id. at 87.\n\n With respect to conduct that involves more than mere verbal interactions with law\n\nenforcement, obstruction may be found when a person refuses to comply with an officer’s\n\norder. For example, the Supreme Court of Appeals of West Virginia upheld a conviction\n\nfor obstruction where the defendant was told that he was being placed under arrest and\n\nthen “struggled against arrest.” State v. Forsythe, 460 S.E.2d 742, 745–46 (W. Va.\n\n1995). More recently, the court upheld a conviction for obstruction where the defendant\n\nrefused to obey a state trooper’s numerous orders to stand to be frisked, began a physical\n\naltercation with the trooper, and ultimately grabbed the trooper’s baton and struck the\n\ntrooper twice on the head. State v. Lowery, No. 17-0210, 2018 WL 2193241, at *1, 5 (W.\n\nVa. May 14, 2018) (unpublished).\n\n Applying these principles here, we find that disputes of fact preclude a finding that\n\na reasonable officer in Trooper Cook’s position would have believed that probable cause\n\nexisted for Hupp’s arrest. Trooper Cook maintains that Hupp’s obstruction began when\n\nshe approached him in “an aggressive manner” and continued as she failed to comply\n\nwith his orders and “met [Trooper Cook’s order] with a verbal further noncompliance.”\n\nJ.A. 210. First, disputes of fact exist with respect to Hupp’s verbal interaction with\n\nTrooper Cook. The video evidence shows Hupp running toward Trooper Cook, with her\n\narms to her side and her hands empty, after he pulled a gun on her father-in-law’s dog.\n\n\n\n\n 15\n\fShe testified that she said only “Whoa, whoa, don’t do that, stop.” J.A. 121–22. 5 Even if\n\nTrooper Cook’s testimony is to be believed—that Hupp told him that he could not tell her\n\nwhat to do on her property—such language is a challenge to the trooper’s authority and\n\ndoes not constitute the type of menacing language found be to obstructionist in Davis.\n\nThe parties dispute, however, whether Hupp also cursed at Trooper Cook when she\n\napproached him. Compare J.A. 210 (Trooper Cook’s testimony that Hupp was\n\n“screaming profanities” at him) and J.A. 509 (criminal complaint describing Hupp as\n\n“cursing”), with J.A. 122 (Hupp’s testimony that “[t]here was no cussing”) and J.A. 140\n\n(Dalton’s testimony that Hupp was not cursing). While a reasonable jury could credit\n\nTrooper Cook’s version of the interaction, it could instead believe Hupp that no “fighting\n\nor insulting words or other opprobrious language” were used. Wilmoth, 373 S.E.2d at\n\n487.\n\n Disputes of fact also exist with respect to Hupp’s alleged failure to comply with\n\nTrooper Cook’s order to step aside. See Lowery, 2018 WL 2193241, at *5. Trooper\n\nCook testified that he gave at least two orders to Hupp to step back, with which she\n\nrefused to comply. J.A. 570. Specifically, he testified that he told Hupp to “step back”;\n\nthat Hupp responded, “You can’t tell me to f-ing do that”; that he then told Hupp,\n\n“Ma’am, I’m not asking you; I’m telling you. Step back”; and that Hupp was “coming\n\nback with her opinions and why she’s not going to comply.” J.A. 215. The defense’s\n\n\n 5\n The video does not contain clear audio of the incident. Therefore, we must look\nto the parties’ respective deposition testimony and other evidence in the record regarding\nwhat was said.\n\n 16\n\fexpert described three orders for Hupp to step back. J.A. 443. 6 Hupp, on the other hand,\n\ntestified that her only words to Trooper Cook were, “Whoa, whoa, don’t do that, stop”\n\nand that she “didn’t get a chance to hear” any of Trooper Cook’s orders. J.A. 121–22.\n\nTrooper Cook even acknowledged that Hupp had only “a split second to comply” with\n\nhis order before he grabbed her arm. J.A. 604. Clearly, there is a dispute as to whether\n\nHupp refused to comply with Trooper Cook’s orders or was even given the opportunity to\n\ncomply with them before she was arrested mere seconds later.\n\n Indeed, there is evidence to suggest that, rather than defying Trooper Cook’s order\n\nto step back, Hupp was actually acting to comply with his earlier order to restrain Buddy.\n\nHupp testified in deposition that she approached Trooper Cook and Buddy partly in\n\nresponse to Trooper Cook’s undisputed command to “get control of the dog” or “get a\n\nhold of your dog.” J.A. 121, 201, 569–70. Although Trooper Cook testified that Hupp\n\nbegan to obstruct him when she approached him in an “aggressive manner,” J.A. 209–10,\n\nTrooper Michael testified that Hupp’s “coming down the hill” toward Trooper Cook and\n\nBuddy after Trooper Cook’s command to control Buddy “could be viewed as complying\n\nwith his request,” J.A. 316.\n\n On this disputed evidence, we cannot conclude that a reasonable officer in Trooper\n\nCook’s position would have believed that probable cause existed for Hupp’s arrest. With\n\n\n 6\n All of these orders, and Hupp’s responses and “opinions,” are alleged to have\nbeen spoken in the incredibly short period of two seconds. Such a back-and-forth\nexchange would seem to require more than two seconds. At this stage, however, like the\ndistrict court, we make no determination regarding the credibility of Trooper Cook’s\ntestimony.\n\n 17\n\fthe facts viewed in the light most favorable to Hupp, the record shows that she ran to\n\nTrooper Cook to comply with his order to have Buddy controlled. Her arms were down\n\nat her side and her hands visibly empty. She told Trooper Cook to stop but did not curse\n\nat him. Yet a mere second or two later, before she heard any order to move, Trooper\n\nCook grabbed her arm and flung her to the ground. Such facts do not reasonably support\n\na charge of obstruction under West Virginia law. Accordingly, we reverse the grant of\n\nsummary judgment on the false arrest claim. 7\n\n 2. Excessive Force\n\n Turning to Hupp’s excessive force claim, we also conclude that the district court\n\nerred in granting summary judgment to Trooper Cook on qualified immunity grounds.\n\nThe Fourth Amendment prohibits police officers from “using excessive force to seize a\n\nfree citizen.” Jones v. Buchanan, 325 F.3d 520, 527 (4th Cir. 2003); Graham v. Connor,\n\n490 U.S. 386, 395 (1989). Rather, police officers are constitutionally permitted to use\n\nonly that force which is reasonable under the circumstances.\n\n\n\n\n 7\n Appellants presented expert reports and deposition testimony from two expert\nwitnesses, an expert in canine behavior and an expert in police training. Appellants argue\nthat the expert testimony establishes the unreasonableness of Trooper Cook’s actions in\nthe way in which he approached Buddy and drew his gun. According to Appellants, the\ndistrict court’s failure to engage with any of their proffered expert testimony constitutes\nreversible error in itself. As we have explained, the district court’s grant of qualified\nimmunity on the false arrest claim is reversed for reasons other than the court’s failure to\nengage with the expert evidence. That being said, we note that the district court did not\naddress the expert testimony in its evaluation of the summary judgment motions. We\nexpect that upon remand, the expert testimony presented by the parties will be\nappropriately addressed, including any objections to the admissibility of that testimony.\n\n 18\n\f In determining whether excessive force was used, we consider the facts “from the\n\nperspective of a reasonable officer on the scene,” without the “20/20 vision of hindsight.”\n\nGraham, 490 U.S. at 397. Therefore, while we do not consider the officer’s “intent or\n\nmotivation,” Jones, 325 F.3d at 527 (quoting Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir.\n\n1996)), we ask “whether a reasonable officer in the same circumstances would have\n\nconcluded that a threat existed justifying the particular use of force,” Elliott, 99 F.3d at\n\n642 (citing Graham, 490 U.S. at 396–97). In answering this question, we consider\n\nseveral factors, including “the severity of the crime at issue,” whether the “suspect\n\npose[d] an immediate threat to the safety of the officers or others,” and whether the\n\nsuspect was “actively resisting arrest or attempting to evade arrest by flight.” Graham,\n\n490 U.S. at 396; Jones, 325 F.3d at 527. We also consider the extent of the plaintiff’s\n\ninjuries. Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994). Ultimately, we must\n\ndecide “whether the totality of the circumstances justifie[d] a particular sort of . . .\n\nseizure.” Smith, 781 F.3d at 101 (omission in original) (quoting Tennessee v. Garner,\n\n471 U.S. 1, 8–9 (1985)).\n\n Here, Hupp alleges that Trooper Cook used unlawful force against her by\n\n“grabbing and throwing” her to the ground and “pushing her against the police car.” J.A.\n\n25. We first dispense with Hupp’s argument that because she was unlawfully arrested,\n\nthe use of any force was necessarily unconstitutional. Certainly, we may consider any\n\nlack of probable cause for the arrest as we evaluate the reasonableness of the force used.\n\nBut we consider the crime that is alleged to have been committed in connection with our\n\noverall analysis of all of the circumstances surrounding the use of force. See Graham,\n\n 19\n\f490 U.S. at 396; Jones, 325 F.3d at 528–31 (explaining that the lack of any crime\n\ncommitted by plaintiff weighed heavily in favor of plaintiff’s excessive force claim but\n\nnonetheless evaluating remaining Graham factors).\n\n Moreover, we do not make any determination as to whether Hupp’s arrest was\n\nactually unlawful. Our finding that Trooper Cook is not entitled to qualified immunity on\n\nthe false arrest claim at this stage of litigation does not preclude a finding at a later stage\n\nthat he lawfully arrested Hupp; a trier of fact could resolve the factual disputes that\n\ncurrently exist in Trooper Cook’s favor. Therefore, we cannot agree with Hupp that our\n\nevaluation of the grant of qualified immunity on the excessive force claim turns entirely\n\non any lack of probable cause for her arrest. Instead, we evaluate the totality of the\n\ncircumstances surrounding the use of force against her.\n\n In evaluating those circumstances, we note that the extent of Hupp’s injuries is\n\nslight. The complaint alleges that Hupp suffered emotional trauma, including anxiety and\n\nan inability to sleep, as well as physical injuries. According to her medical records, Hupp\n\nsuffered from middle and lower back pain and was diagnosed with a contusion and\n\nlumbosacral strain two days after the incident with Trooper Cook. J.A. 543–44. The\n\nrecord contains no additional evidence of injury. There is no evidence of serious or\n\npermanent physical injuries. Cf. Rowland, 41 F.3d at 172, 174 (finding extent of injuries\n\nsignificant where plaintiff suffered torn ligament in his leg, underwent two surgeries, and\n\nremained permanently partially disabled).\n\n Hupp’s minor injuries, however, are “but one ‘consideration in determining\n\nwhether force was excessive.’” E.W. by and through T.W. v. Dolgos, 884 F.3d 172, 185\n\n 20\n\f(4th Cir. 2018) (quoting Jones, 325 F.3d at 530). Other factors call into question the\n\nreasonableness of the use of force against Hupp. First, the severity of the crime for which\n\nshe was arrested is slight: obstruction is a misdemeanor. See W. Va. Code § 61-5-17(a).\n\nWhen the offense is a “minor one,” we have found “that the first Graham factor weighed\n\nin plaintiff’s favor.” Jones, 325 F.3d at 528 (citations omitted). We see no reason to find\n\notherwise here.\n\n Second, the evidence suggests that Hupp did not “pose[ ] an immediate threat to\n\nthe safety of the officers or others.” Graham, 490 U.S. at 396; Jones, 325 F.3d at 528.\n\nThe district court found that this factor weighed in favor of qualified immunity, as Hupp\n\npositioned herself between Trooper Cook and Buddy, “which could reasonably be\n\nconstrued as hindering Cook’s ability to protect himself.” J.A. 620. A review of the\n\nrecord, however, suggests otherwise. Hupp is a slender, short, 113-pound female.\n\nTrooper Cook, on the other hand, weighs 200 pounds, is a trained police officer, and had\n\nundergone training in how to identify and handle aggressive dogs months before Hupp’s\n\narrest. Trooper Cook was armed, had his gun drawn, and the video shows that Hupp\n\napproached him with her arms down and hands visibly empty. Hupp stood perpendicular\n\nto Trooper Cook, did not place herself directly in front of him or his drawn gun, and it\n\nwas only after Trooper Cook grabbed her arm that she moved in front of his weapon. In\n\nlight of these facts, we cannot agree with the district court that, as a matter of law, Hupp\n\nposed a sufficient threat to tip the scale in Trooper Cook’s favor. See Smith, 781 F.3d at\n\n102 (finding that second Graham factor weighed in favor of section 1983 plaintiff where\n\nplaintiff was a “smaller woman,” officer was “a pretty good size man” as a “200-\n\n 21\n\fsomething-pound man,” and officer had no reason to believe that the plaintiff was\n\narmed); see also Rowland, 41 F.3d at 174 (finding “no threat to the officer or anyone\n\nelse” where plaintiff was not armed, officer did not suspect plaintiff was armed, and there\n\nwas no “real evidence that this relatively passive, retarded man was a danger to the\n\nlarger, trained police officer”).\n\n Third, there is disputed evidence of Hupp’s resistance to arrest. The video depicts\n\na brief struggle between Hupp and Trooper Cook lasting mere seconds after he grabbed\n\nher arm and before she fell to the ground. Trooper Cook grabbed Hupp’s arm mere\n\nseconds after she approached him and, according to Hupp, before she had the opportunity\n\nto hear any order that he may have given for her to move. She testified that her reaction\n\nafter having her arm seized was to try to put her arms up in surrender. J.A. 123. We\n\nhave held that a reasonable officer could not believe that the “initial act of pulling [one’s]\n\narm away” when an officer grabs a person “without warning or explanation” justifies the\n\nofficer’s decision to throw the person to the ground. Smith, 781 F.3d at 103.\n\n Trooper Cook, on the other hand, testified that Hupp took a “fighting stance” with\n\nhim and that he “stiff armed” her in order to holster his weapon. J.A. 219, 571. Trooper\n\nCook also testified that immediately before Hupp fell to the ground, she grabbed his\n\nclothing and cursed at him. 8 On these disputed versions of the facts, and in light of the\n\nother Graham factors that are unfavorable to Trooper Cook, we cannot say that a\n\n\n 8\n Hupp’s alleged grabbing of Trooper Cook is not captured in the video because\nshe allegedly did so when his back was turned to the camera and blocking the camera’s\nview of Hupp.\n\n 22\n\freasonable officer would consider Trooper Cook’s use of force reasonable under the\n\ncircumstances. See Rowland, 41 F.3d at 174 (concluding that disputed versions of\n\nplaintiff’s resistance combined with other “unfavorable” Graham factors precluded\n\nqualified immunity on excessive force claim).\n\n 3. Malicious Prosecution\n\n We next address Hupp’s section 1983 malicious prosecution claim. A malicious\n\nprosecution claim brought under section 1983 “is properly understood as a Fourth\n\nAmendment claim for unreasonable seizure which incorporates certain elements of the\n\ncommon law tort.” Evans v. Chalmers, 703 F.3d 636, 646 (4th Cir. 2012) (quoting\n\nLambert v. Williams, 223 F.3d 257, 261 (4th Cir. 2000)); see Manuel v. City of Joliet, Ill.,\n\n137 S. Ct. 911, 919 (2017) (“If the complaint is that a form of legal process resulted in\n\npretrial detention unsupported by probable cause, then the right allegedly infringed lies in\n\nthe Fourth Amendment.”). To prove such a claim, a plaintiff must show “that the\n\ndefendant (1) caused (2) a seizure of the plaintiff pursuant to legal process unsupported\n\nby probable cause, and (3) criminal proceedings terminated in plaintiff’s favor.” Evans,\n\n703 F.3d at 647.\n\n There is no dispute here that Hupp was arrested, prosecuted, and acquitted. What\n\nis disputed is whether probable cause existed for Hupp’s prosecution. On this point, the\n\ndistrict court determined that probable cause existed for Hupp’s arrest and that the\n\nmagistrate’s subsequent finding of probable cause rendered Hupp’s prosecution\n\nreasonable. J.A. 624. To be sure, we have held that “[o]nce a pretrial seizure has been\n\nrendered reasonable by virtue of a probable cause determination by a neutral and\n\n 23\n\fdetached magistrate, the continuing pretrial seizure of a criminal defendant—either by\n\ndetention or by bond restrictions—is reasonable.” Brooks v. City of Winston-Salem, N.C.,\n\n85 F.3d 178, 184 (4th Cir. 1996). We later explained, though, that a finding of probable\n\ncause by a neutral magistrate only “weigh[s] heavily toward a finding that [the\n\ndefendant] is immune” from suit. Merchant v. Bauer, 677 F.3d 656, 664 (4th Cir.)\n\n(quoting Wadkins v. Arnold, 214 F.3d 535, 541 (4th Cir. 2000)), cert. denied, 568 U.S.\n\n1068 (2012). Thus, where a police officer takes certain steps, such as first conferring\n\nwith a prosecutor about moving forward with a criminal prosecution, and a magistrate\n\njudge later affirms the officer’s determination that probable cause exists for the\n\nprosecution, those steps weigh in favor of a finding of qualified immunity. They do not\n\nend the qualified immunity inquiry, however, as they “need only appropriately be taken\n\ninto account in assessing the reasonableness of [the officer’s] actions.” Id. (internal\n\nquotation marks and citation omitted). A grant of qualified immunity still rests on our\n\ndetermination that an officer acted reasonably under the circumstances.\n\n Because a magistrate’s finding of probable cause is but a factor in our\n\nconsideration of the overall reasonableness of the officer’s actions, a defendant to a\n\nmalicious prosecution claim is not absolved from liability when the magistrate’s\n\nprobable-cause finding “is predicated solely on a police officer’s false statements.”\n\nManuel, 137 S. Ct. at 918. An officer who lies to secure a probable-cause determination\n\ncan hardly be called reasonable. Likewise, where an officer provides misleading\n\ninformation to the prosecuting attorney or where probable cause is “plainly lacking,”\n\nMcKinney v. Richland Cty. Sheriff’s Dep’t, 431 F.3d 415, 419 (4th Cir. 2005), the\n\n 24\n\fprocedural steps taken by an officer no longer afford a shield against a Fourth\n\nAmendment claim. This is because “[l]egal process has gone forward, but it has done\n\nnothing to satisfy the Fourth Amendment’s probable-cause requirement.” Manuel, 137 S.\n\nCt. at 918–19.\n\n Hupp contends that the magistrate’s finding of probable cause does not afford\n\nTrooper Cook qualified immunity on her malicious prosecution claim because the\n\nprobable-cause finding rested on false statements made by Trooper Cook in the criminal\n\ncomplaint against her. Specifically, Hupp asserts that the criminal complaint falsely\n\nstated, inter alia, that she refused to comply with Trooper Cook’s orders to “step aside,”\n\nbegan cursing at him, “raised her hands towards” him before he grabbed her arm, and\n\nthen grabbed at him and “began cursing” after he grabbed her arm. J.A. 509; Opening\n\nBr. 18, 55.\n\n We agree with Hupp that the district court’s finding of qualified immunity on this\n\nclaim was in error. As we have explained, disputes of fact preclude a finding at this stage\n\nthat a reasonable officer would have believed that probable cause existed for Hupp’s\n\narrest. Those disputes relate to many of the facts set forth in the criminal complaint on\n\nwhich the magistrate relied. For example, there is a dispute as to whether Hupp refused\n\nto comply with Trooper Cook’s orders for her to move or whether she was instead\n\nattempting to obey his order to control Buddy. There is also a dispute as to whether\n\nHupp was cursing at Trooper Cook. Moreover, contrary to Trooper Cook’s statement in\n\nthe criminal complaint, the video clearly depicts Hupp’s hands down at her side during\n\n\n\n 25\n\fthe entirety of the few seconds before Trooper Cook grabbed her arm. It was only after\n\nhe grabbed her arm that she struggled, very briefly, with him.\n\n If we excise the contested statements from the criminal complaint, the additional\n\nfacts available to the magistrate do not, as the district court found, provide “ample\n\nevidence” for a probable-cause determination. J.A. 624. The district court emphasized\n\nthe fact that Hupp “stepped in between the dog and the undersigned officer,” which,\n\naccording to the district court, showed that Hupp stepped in between Buddy and Trooper\n\nCook as Trooper Cook was attempting to protect himself from the dog. J.A. 509, 624.\n\nHowever, in the criminal complaint, Trooper Cook also clearly stated that Buddy had\n\n“reached the end of the tether” and could not “reach” Trooper Cook. J.A. 509. Contrary\n\nto showing that Hupp interfered with Trooper Cook’s ability to protect himself from\n\nBuddy, the complaint established that Trooper Cook knew Buddy was no longer a danger\n\nto him. No other basis for Hupp’s alleged obstruction of Trooper Cook is identified in\n\nthe complaint.\n\n Given the disputes of the underlying historical facts, the supported assertion that\n\nTrooper Cook’s statements in the criminal complaint were not entirely truthful, and the\n\nlack of undisputed evidence that otherwise would support a probable-cause finding, we\n\ncannot find that Trooper Cook is entitled to qualified immunity on Hupp’s malicious\n\nprosecution claim under section 1983.\n\n 4. Common Law Malicious Prosecution\n\n Trooper Cook’s entitlement to immunity on Hupp’s common law malicious\n\nprosecution claim fares no better. Under West Virginia law, a plaintiff bringing a\n\n 26\n\fmalicious prosecution claim must show “(1) that the prosecution was set on foot and\n\nconducted to its termination, resulting in plaintiff’s discharge; (2) that it was caused or\n\nprocured by defendant; (3) that it was without probable cause; and (4) that it was\n\nmalicious.” Goodwin v. City of Shepherdstown, 825 S.E.2d 363, 368 (W. Va. 2019)\n\n(citation omitted). Where a “want of probable cause for [the] prosecution is shown by a\n\npreponderance of the evidence,” malice may be inferred. Truman v. Fid. & Cas. Co. of\n\nN.Y., 123 S.E.2d 59, 68 (W. Va. 1961); Morton v. Chesapeake & Ohio Ry. Co., 399\n\nS.E.2d 464, 467 (W. Va. 1990).\n\n The district court determined that, like with the section 1983 malicious\n\nprosecution claim, Trooper Cook is entitled to qualified immunity on the common law\n\nclaim because probable cause existed for Hupp’s arrest. The qualified immunity\n\navailable against claims brought under section 1983 generally does not extend to\n\ncommon law claims. Nonetheless, West Virginia affords immunity “from personal\n\nliability for official acts if the involved conduct did not violate clearly established laws of\n\nwhich a reasonable official would have known.” W. Va. Reg’l Jail & Corr. Facility Auth.\n\nv. A.B., 766 S.E.2d 751, 762 (W. Va. 2014) (citation omitted). The state’s qualified\n\nimmunity doctrine borrows heavily from the analogous federal qualified immunity\n\njurisprudence but also requires an additional finding that the defendant’s alleged conduct\n\nnot be “fraudulent, malicious, or otherwise oppressive” to the plaintiff. Id.; Hutchison v.\n\nCity of Huntington, 479 S.E.2d 649, 659 (W. Va. 1996).\n\n As discussed above, questions of fact exist that must first be resolved before a\n\ncourt can determine that a reasonable officer in Trooper Cook’s position would have\n\n 27\n\fbelieved that probable cause existed for Hupp’s arrest and prosecution. Therefore,\n\nTrooper Cook is not entitled to immunity on Hupp’s common law malicious prosecution\n\nclaim, and the district court’s grant of summary judgment is reversed.\n\n * * *\n\n To summarize, qualified immunity is appropriate at this stage only if there are no\n\ndisputes of the historical facts underlying the false arrest, excessive force, and malicious\n\nprosecution claims. As we have explained, disputes exist. Those disputes must be\n\nsubmitted to a jury. The district court may then “reserve for itself the legal question of\n\nwhether [Trooper Cook] is entitled to qualified immunity on the facts found by the jury.”\n\nWillingham, 412 F.3d at 560.\n\n B.\n\n We turn finally to Appellants’ claims that Trooper Cook unlawfully entered\n\nMyers’s home and unlawfully seized electronic devices from within the home. Under the\n\nFourth Amendment, “searches and seizures inside a home without a warrant are\n\npresumptively unreasonable” and, thus, presumptively unconstitutional. Payton v. New\n\nYork, 445 U.S. 573, 586 (1980); United States v. Yengel, 711 F.3d 392, 396 (4th Cir.\n\n2013). This rule is subject to “narrow and well-delineated” exceptions, Yengel, 711 F.3d\n\nat 396, one of which is when exigent circumstances justify the warrantless entry of a\n\nhome, Mincey v. Arizona, 437 U.S. 385, 392–94 (1978). Exigent circumstances that may\n\njustify a warrantless entry include “the imminent destruction of evidence.” United States\n\nv. Brown, 701 F.3d 120, 126 (4th Cir. 2012). That is, police officers may enter a home\n\nwithout a warrant when they “(1) have probable cause to believe that evidence of illegal\n\n 28\n\factivity is present and (2) reasonably believe that evidence may be destroyed or removed\n\nbefore they could obtain a search warrant.” United States v. Cephas, 254 F.3d 488, 494–\n\n95 (4th Cir. 2001) (citing United States v. Turner, 650 F.2d 526, 528 (4th Cir. 1981)).\n\nLikewise, “[w]here law enforcement authorities have probable cause to believe that\n\n[property] holds contraband or evidence of a crime,” warrantless seizure of the property\n\nis permitted under the Fourth Amendment “if the exigencies of the circumstances demand\n\nit.” United States v. Place, 462 U.S. 696, 701 (1983).\n\n Factors to be considered in determining whether exigent circumstances justify a\n\nwarrantless entry include: “(1) the degree of urgency involved and the amount of time\n\nnecessary to obtain a warrant; (2) the officers’ reasonable belief that the contraband is\n\nabout to be removed or destroyed; (3) the possibility of danger to police guarding the site;\n\n(4) information indicating the possessors of the contraband are aware that the police are\n\non their trail; and (5) the ready destructibility of the contraband.” Turner, 650 F.2d at\n\n528. In evaluating these factors, courts consider “[t]he appearance of the scene of the\n\nsearch in the circumstances presented as it would appear to reasonable and prudent men\n\nstanding in the shoes of the officers.” United States v. Reed, 935 F.2d 641, 643 (4th Cir.\n\n1991) (alteration in original) (citations omitted).\n\n This case does not present the usual case for exigency; it does not involve a\n\nwarrantless entry into a home to seize contraband that may be imminently destroyed. See\n\nCephas, 254 F.3d at 495–96 (finding exigency where officer had probable cause to\n\nbelieve marijuana was inside apartment and would be destroyed if officer waited to\n\nsecure warrant); Brown, 701 F.3d at 126–27 (finding exigency where probable cause\n\n 29\n\fexisted to believe that defendant had evidence of child pornography on computers at\n\nwork that could be deleted before a warrant was obtained). Rather, this case involves a\n\nwarrantless entry into a home to seize evidence that the police officer understood would\n\nnot be destroyed. The video was taken by Hupp’s husband, and Trooper Cook conceded\n\nthat he believed Hupp’s husband was glad to have the evidence and would not want to\n\npart with it. Ryan recorded the video as “[p]roof, if anything were to happen,” for his\n\nwife’s benefit. J.A. 160. That is, he believed that the video could exonerate his wife, not\n\nincriminate her. Thus, this case is unlike the “vast majority of cases in which evidence is\n\ndestroyed by persons who are engaged in illegal conduct, [where] the reason for the\n\ndestruction is fear that the evidence will fall into the hands of law enforcement.”\n\nKentucky v. King, 563 U.S. 452, 461 (2011).\n\n 1.\n\n Appellants argue that the exigency test cannot be satisfied as a matter of law\n\nbecause there is no evidence that Ryan Hupp intended to destroy or conceal the video.\n\nTrooper Cook counters that there is evidence that Ryan intended to destroy or at least\n\nconceal the video from the police before a warrant could issue. According to Trooper\n\nCook, Ryan was “glad to have” the video only before he realized that Trooper Cook\n\nwanted it. Resp. Br. 39 n.150. Trooper Cook points to evidence that after he entered the\n\nhouse and asked about the video, Ryan told him, “Don’t worry. I deleted it. It was on\n\nthis phone.” J.A. 258. Additionally, another of Ryan’s family members, Dalton, is heard\n\non the video telling Ryan not to let the troopers know that Ryan was recording them.\n\n\n\n 30\n\fThus, Trooper Cook asserts, it was reasonable for him to believe that if he did not enter\n\nand seize the devices at that time, the evidence would be destroyed or concealed.\n\n The evidence highlighted by Trooper Cook, however, is irrelevant to the exigency\n\nanalysis. This is because the “existence of exigent circumstances must be determined as\n\nof the moment of the warrantless entry of the officers onto the premises.” Reed, 935 F.2d\n\nat 643. Ryan’s comments to Trooper Cook about deleting the video footage were made\n\nonly after Trooper Cook had entered Myers’s home and seized three of the electronic\n\ndevices. According to Trooper Cook’s own testimony, he stepped across the threshold\n\ninto the home, asked Myers’s family members that were in the house about the location\n\nof the video, received no response, began to seize electronic devices within sight, and\n\nonly then did Ryan “step[ ] forward from back up the hallway” and tell Trooper Cook\n\nthat he had deleted the video from his cell phone. J.A. 258–59. Similarly, Dalton’s\n\ncomments heard in the video were not made in Trooper Cook’s presence; an officer\n\nwould have heard those comments only after seizing the cell phone and watching the\n\nvideo. Thus, before Trooper Cook entered the home and began seizing the devices, his\n\nadmitted understanding was that Ryan was happy to have the video footage and would\n\nnot want to destroy it. Of course, we must determine whether a reasonable person in\n\nTrooper Cook’s position would have believed that Ryan intended to destroy the video.\n\nOn the facts presented to us, we see no reason to believe that an objective officer would\n\nhave believed any differently than Trooper Cook did—that Ryan had recorded his wife’s\n\narrest, was happy about having recorded it, and would not want to delete that recording.\n\n\n\n 31\n\f Trooper Cook’s subjective understanding, however, is not the determinative\n\nfactor. Rather, we must determine whether a reasonable officer in Trooper Cook’s\n\nposition would have believed that Ryan—or another of Hupp’s family members present\n\nat the time—was likely to destroy or conceal the video. See Reed, 935 F.2d at 643.\n\nBased on the information available to an officer in Trooper Cook’s position at the\n\nmoment that he entered Myers’s home, we cannot say as a matter of law that no\n\nreasonable officer would have believed that the video would be preserved while the\n\ntroopers obtained a warrant. Having heard Ryan yell to his wife not to worry because he\n\nrecorded her interaction with Trooper Cook, a reasonable officer could conclude, like\n\nTrooper Cook initially did, that Ryan was glad to have the video and would not destroy it.\n\nOn the other hand, Hupp was believed to have committed a crime; the video documenting\n\nthat crime was recorded by Hupp’s husband; and a reasonable officer could have believed\n\nthat, as Hupp’s husband, Ryan would conceal or destroy the video evidence of her crime\n\nbefore handing it over to the police. We are thus hesitant to find that, as a matter of law,\n\nTrooper Cook unreasonably believed that the video was likely to be concealed before a\n\nwarrant could issue. Instead, the question of whether such a belief was reasonable under\n\nthe circumstances known to the officers at the time of Trooper Cook’s entry into Myers’s\n\nhome must be submitted to a factfinder.\n\n Turning to the other exigency factors, we note that there is no evidence regarding\n\nthe time needed to secure a warrant. The record suggests, though, that there was little to\n\nno possibility of danger to the troopers if they stood guard while a warrant was secured.\n\nSee Turner, 650 F.2d at 528. Trooper Cook testified that when he first approached\n\n 32\n\fMyers’s house, he saw Hupp and Lindsey with a “pistol crossbow” but saw no arrows\n\nand believed that Hupp and Lindsey “were playing with something with [sic] the creek”\n\nnext to the house. J.A. 565–66. Trooper Cook did nothing to secure the crossbow and\n\napparently did not consider it a threat; in fact, there is evidence that the crossbow was a\n\nbroken plastic toy that belonged to Hupp’s three-year-old son. J.A. 85, 128, 141. Buddy,\n\nthe dog believed to be vicious, was tethered at the time of Hupp’s arrest. And although\n\nthe two troopers were outnumbered by Myers’s family members, one of those family\n\nmembers was a toddler, another was pregnant, and there is no evidence that any of them\n\nwere armed. Therefore, there does not appear to have been any danger to the troopers.\n\nSee Yengel, 711 F.3d at 398 (finding no exigency when officer was informed that there\n\nwas a grenade in house but other information available to officer indicated “stable nature\n\nof the threat”); United States v. Whitehorn, 813 F.2d 646, 649 (4th Cir. 1987) (affirming\n\nfinding that exigency did not justify warrantless bomb sweep when there was no evidence\n\n“that anyone was evacuated from the building or warned of the potential danger, or that\n\nthe agents had otherwise prepared for the risk of an exploding bomb”); cf. Reed, 935 F.2d\n\nat 642–43 (finding exigency where police officers saw sawed-off shotgun eighteen inches\n\nfrom man sleeping in a home where another man, known to carry firearms and with past\n\narrests for assault and brandishing weapons, resided).\n\n Nor was the video the only corroborating evidence of Hupp’s alleged crime;\n\nTrooper Michael was also a witness, as were several of Hupp’s family members. That\n\nfact, coupled with the minor crime for which Hupp was arrested, suggest that the level of\n\nurgency to obtain the video was not high. See Welsh v. Wisconsin, 466 U.S. 740, 750\n\n 33\n\f(1984) (“Our hesitation in finding exigent circumstances . . . is particularly appropriate\n\nwhen the underlying offense for which there is probable cause to arrest is relatively\n\nminor.”).\n\n While these other factors weigh against a finding of exigency, a jury could\n\nnonetheless find that Trooper Cook reasonably believed that the video was at risk of\n\nbeing deleted or concealed. Therefore, we decline Appellants’ invitation to find that\n\nTrooper Cook’s entry into Myers’s home and his seizure of the electronic devices were\n\nunreasonable as a matter of law. Instead, we remand for a trial to determine whether\n\nTrooper Cook’s actions were reasonable. 9\n\n 2.\n\n We also take a moment to address Trooper Cook’s view of the exigency exception\n\nto the warrant requirement. In an era in which cell phones are increasingly used to\n\ncapture much of what happens in daily life, it is important to emphasize the limitations\n\nthat the Fourth Amendment continues to place on a state’s seizure of video evidence.\n\n Trooper Cook testified that his regular practice is to seize any video recording that\n\nhe believes to contain evidence of a crime he is investigating. J.A. 237–39. But the\n\nexigent-circumstances exception does not permit police officers to do what Trooper Cook\n\nroutinely does: seize video evidence without a warrant even when there is no reason to\n\n\n 9\n Because we cannot say as a matter of law that an officer in Trooper Cook’s\nposition would reasonably have believed that the video evidence would be concealed or\ndestroyed before a warrant for the video’s seizure could be obtained, Trooper Cook is not\nentitled to qualified immunity on the search and seizure claims. See Smith, 781 F.3d at\n100.\n\n 34\n\fbelieve that the evidence will likely be destroyed or concealed. Such a rule would allow\n\nofficers to seize as a matter of course video-recording devices from not just those\n\ninvolved in an incident, but also from neighbors and other curious bystanders who\n\nhappen to record the events as they transpire. Under this view, police officers would\n\nlawfully be permitted to enter the home of every person living nearby who stands in her\n\ndoorway or window recording an arrest, to seize her recording device, and to do so\n\nwithout a warrant or her consent—simply because video evidence, by its nature, can be\n\neasily deleted.\n\n Such a view finds no support in our Fourth Amendment jurisprudence. While\n\nvideo evidence contained in a cell phone can be easily deleted or concealed, it is not\n\nmerely the ease with which evidence may be destroyed or concealed that dictates\n\nexigency. An officer must also have reason to believe that the evidence will be destroyed\n\nor concealed. In short, adopting the broad definition of exigency urged by Trooper Cook\n\nwould remove the exigent-circumstances exception to the warrant requirement from the\n\nclass of “narrow and well-delineated” exceptions permissible under the Fourth\n\nAmendment. Yengel, 711 F.3d at 396. It would convert exigency from an exception to\n\nthe rule.\n\n\n\n IV.\n\n For the foregoing reasons, we hold that the district court erred in granting\n\nsummary judgment to Trooper Cook on the false arrest, excessive force, malicious\n\nprosecution, and unlawful entry and seizure claims. We also hold that the district court\n\n 35\n\fproperly denied Appellants summary judgment on the unlawful entry and seizure-of-\n\ndevices claims. Accordingly, the district court’s order denying Appellants’ partial\n\nsummary judgment motion on the search and seizure claims is affirmed and its order\n\ngranting summary judgment to Trooper Cook is reversed. This matter is remanded to the\n\ndistrict court for trial on each of Appellants’ claims.\n\n\n\n AFFIRMED IN PART, REVERSED IN PART, AND REMANDED\n\n\n\n\n 36\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Tiffanie HUPP; R.H., a Minor, by and Through His Next Friend, Tiffanie Hupp; Clifford Myers, Plaintiffs - Appellants, v. State Trooper Seth COOK; Colonel C.R. Jay Smithers, Defendants - Appellees, and West Virginia State Police, Defendant.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-07-25\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1845\\n\\n\\nTIFFANIE HUPP; R.H., a minor, by and through his next friend, Tiffanie Hupp;\\nCLIFFORD MYERS,\\n\\n Plaintiffs – Appellants,\\n\\n v.\\n\\nSTATE TROOPER SETH COOK; COLONEL C.R. JAY SMITHERS,\\n\\n Defendants – Appellees,\\n\\n and\\n\\nWEST VIRGINIA STATE POLICE,\\n\\n Defendant.\\n\\n\\nAppeal from the United States District Court for the Southern District of West Virginia,\\nat Charleston. Thomas E. Johnston, Chief District Judge. (2:17–cv–00926)\\n\\n\\nArgued: April 2, 2019 Decided: July 25, 2019\\n\\n\\nBefore GREGORY, Chief Judge, and KING, Circuit Judge. 1\\n\\n\\nAffirmed in part, reversed in part, and remanded by published opinion. Chief Judge\\nGregory wrote the opinion, in which Judge King joined.\\n\\n 1\\n Judge Thacker was unable to participate in oral argument. The decision is filed\\nby a quorum of the panel pursuant to 28 U.S.C. § 46(d).\\n\\fARGUED: John Eric Campbell, CAMPBELL LAW, Denver, Colorado;\\nJustin F. Marceau, UNIVERSITY OF DENVER, Denver, Colorado, for Appellants.\\nMichael Deering Mullins, STEPTOE & JOHNSON PLLC, Charleston, West Virginia,\\nfor Appellees. ON BRIEF: Alene Anello, ALDF, Cotati, California, for Appellants.\\nRobert L. Bailey, STEPTOE & JOHNSON PLLC, Charleston, West Virginia, for\\nAppellees.\\n\\n\\n\\n\\n 2\\n\\fGREGORY, Chief Judge:\\n\\n Appellant Tiffanie Hupp was arrested for obstruction when she attempted to stop a\\n\\nstate trooper from shooting her family’s dog. After her husband video-recorded the\\n\\nincident, the state trooper entered the family’s home, without consent and without a\\n\\nwarrant, and seized several of the family’s electronic devices. Hupp, her minor son, and\\n\\nher father-in-law filed suit against the state trooper, asserting various violations of the\\n\\nFourth Amendment under 42 U.S.C. § 1983. The district court granted summary\\n\\njudgment to the state trooper and denied Appellants’ motion for partial summary\\n\\njudgment. Because issues of fact exist, we affirm the denial of Appellants’ partial\\n\\nsummary judgment motion but reverse the grant of summary judgment in Trooper Seth\\n\\nCook’s favor and remand for trial on each of Appellants’ claims.\\n\\n\\n\\n I.\\n\\n A.\\n\\n Buddy, a 13-year-old husky-Akita mix, lives with his owner, Appellant Clifford\\n\\nMyers, in Waverly, West Virginia. Buddy has been the source of contention between\\n\\nMyers and his neighbor David Wayne, who lives across the street.\\n\\n On May 9, 2015, the police were called out in response to a dispute earlier that day\\n\\nbetween the two men over the dog. West Virginia State Troopers Seth Cook and Sean\\n\\nMichael responded to the call. Trooper Cook was there to provide backup to Trooper\\n\\nMichael. Upon their arrival, the troopers spoke with Myers, who was in his front yard\\n\\ndrinking a beer. The troopers then went across the street to speak with the Waynes. In\\n\\n 3\\n\\fspeaking with the Waynes, Trooper Cook was told of the “ongoing problem” with Myers\\n\\nover Buddy, that Buddy was, in their mind, “vicious and had killed several of their cats\\n\\nand had chased the children.” J.A. 302. Trooper Cook was also told that Buddy had\\n\\nchased Wayne’s grandmother back into the house and that Wayne’s grandfather had to\\n\\ntake a stick with him when he checked the mail “to shoo the dog away.” Id. 2\\n\\n At the time, Myers had another dog, a black Labrador, on a chain in his front yard;\\n\\nBuddy was loose in the yard. According to Myers, Trooper Cook was aware that Buddy\\n\\nwas not on a leash. Trooper Cook testified, however, that he did not see Buddy when he\\n\\nfirst went to speak with Myers. While the troopers spoke with the Waynes, Myers took\\n\\nthe Labrador off the chain and placed the chain on Buddy. Myers later explained that it\\n\\nwas mere happenstance that he switched the dogs; according to him, it was not because\\n\\n“the black lab was the friendlier of the two dogs.” J.A. 82.\\n\\n After speaking with the Waynes, the troopers returned to Myers’s house. Trooper\\n\\nMichael asked Myers for his identification. Myers asked his daughter, Lindsey, to\\n\\nretrieve it for him. As Lindsey headed back toward the house to retrieve the ID, Trooper\\n\\nCook followed her into Myers’s front yard. Trooper Cook testified that he followed\\n\\nLindsey “because of the people gathering in the door [of Myers’s home] and just a\\n\\ngeneral, again, situation awareness.” J.A. 208. At that point, Myers had six of his family\\n\\nmembers at his house, and Trooper Cook wanted to “have a little bit of personal contact\\n\\nwith them to, again, determine their nature” and determine if “there were potential other\\n\\n 2\\n Myers maintained that Buddy had never harmed a person and simply chased\\nsquirrels.\\n\\n 4\\n\\fpeople that [he] needed to be paying closer attention to.” J.A. 56, 207–08. Trooper Cook\\n\\nalso testified that, due to the slope of Myers’s front yard, he wanted to “get closer to\\n\\nwhere [he] could see better than from down at the road in the driveway looking up at a\\n\\nposition of tactical advantage over [him].” J.A. 208.\\n\\n Video evidence captured much, but not all, of what happened next. 3 A dog barked\\n\\nas Trooper Cook walked into Myers’s yard. J.A. 610 at 1:17–1:20. Trooper Cook, who\\n\\nwas trained to identify and “handle” aggressive dogs, took a few steps back after seeing\\n\\nBuddy. J.A. 189, 610 at 1:20–1:22. He then pulled his gun out and, holding it with his\\n\\nleft hand, pointed it at Buddy. J.A. 610 at 1:23–1:26. Hupp, Myers’s 113-pound\\n\\ndaughter-in-law, ran down the front yard from near the house toward Trooper Cook. Id.\\n\\nat 1:26–1:27. She stood with her left side next to Trooper Cook’s right side, her body\\n\\nperpendicular to Trooper Cook. Buddy was at Hupp’s right. Hupp’s arms were at her\\n\\nside and her hands were visibly empty. Id. at 1:26–1:28. Within seconds of Hupp’s\\n\\narrival, Trooper Cook grabbed Hupp’s left arm with his right hand. Id. at 1:29. A brief\\n\\nstruggle ensued during which Trooper Cook turned to his left, Hupp moved to her right\\n\\nand directly facing Trooper Cook, all while the two struggled for two seconds with\\n\\nTrooper Cook’s grasp on Hupp’s arm. Id. at 1:29–1:30. As Trooper Cook and Hupp\\n\\nspun around, Hupp fell to the ground. Id. at 1:31. When Hupp stood up, Trooper Cook\\n\\n 3\\n To the extent the video depicts material facts of this case, we review those facts\\nas they are depicted in the video. Scott v. Harris, 550 U.S. 372, 380–81 (2007). Where,\\nhowever, the video “does not ‘clearly’ or ‘blatantly’ contradict” Hupp’s version of the\\nfacts, we adopt her version in reviewing the grant of summary judgment to Trooper\\nCook. Witt v. W. Va. State Police, Troop 2, 633 F.3d 272, 276–77 (4th Cir. 2011)\\n(quoting Scott, 550 U.S. at 378).\\n\\n 5\\n\\fgrabbed her arms from behind and walked her to the police car parked a few feet away.\\n\\nId. at 1:34–39. Bending Hupp over the hood of the police car, the troopers handcuffed\\n\\nher. Id. at 1:40–2:05.\\n\\n Though not depicted clearly in the video, Trooper Cook testified that after seeing\\n\\nBuddy as he entered the yard, he yelled for someone to control the dog or to “get a hold\\n\\nof your dog.” J.A. 201, 569–70. According to Trooper Cook, he did not at first notice\\n\\nthat Buddy was on a chain. Hupp testified that she ran toward Trooper Cook both in\\n\\nresponse to Buddy’s barks but also in response to the trooper’s order to control the dog.\\n\\n Also not clear from the video is what was said by Trooper Cook and Hupp in their\\n\\nbrief encounter. Trooper Cook testified that he told Hupp at least twice to back away and\\n\\nthat her response was that he could not tell her what to do on her property. Trooper Cook\\n\\nalso maintained that Hupp was “cursing” and “screaming profanities” at him. J.A. 210,\\n\\n509. Hupp testified, on the other hand, that she did not hear any of Trooper Cook’s\\n\\norders and simply told him, “Whoa, whoa, don’t do that, stop.” J.A. 121.\\n\\n Hupp’s husband, Ryan, recorded the incident with his cell phone from inside\\n\\nMyers’s home. As Hupp was being arrested, she asked Ryan, “Did you get that on\\n\\nvideo?” J.A. 86. Ryan answered, “Don’t worry, babe. I’ve got that shit.” J.A. 244.\\n\\nTrooper Cook later testified that he understood that statement to mean that Ryan “was\\n\\nglad he had” the video and “wouldn’t get rid of it for his—his possession of it.” J.A. 247.\\n\\n Upon learning that a video had been recorded, Trooper Cook “stepped in” to\\n\\nMyers’s home without a warrant and without consent. J.A. 237, 258. He seized four\\n\\nelectronic devices: a child’s tablet and three cell phones, including Ryan’s phone that\\n\\n 6\\n\\frecorded the incident. J.A. 237, 572. 4 Trooper Cook explained in his deposition that it is\\n\\nhis practice to seize electronic recording devices without first obtaining a warrant if he\\n\\nbelieves that someone has used the device to capture evidence. The State Police retained\\n\\nthe devices for a month before returning them.\\n\\n B.\\n\\n Hupp was charged with obstruction under West Virginia Code § 61-5-17(a). She\\n\\nwas arraigned, and after the magistrate judge concluded that probable cause existed for\\n\\nher arrest, she was released on bond. Following a jury trial in the Wood County\\n\\nmagistrate court, Hupp was acquitted.\\n\\n Appellants Hupp, Myers, and Hupp’s minor son—who witnessed his mother’s\\n\\narrest—filed suit against Trooper Cook, West Virginia State Police Colonel C.R. “Jay”\\n\\nSmithers (the superintendent), and the West Virginia State Police. Appellants brought\\n\\nseveral claims for violation of their constitutional rights under 42 U.S.C. § 1983 and\\n\\nparallel state law claims. Appellants later amended their complaint, bringing claims\\n\\nagainst the police officers in their individual and official capacities and against the West\\n\\nVirginia State Police. The district court granted in part a motion to dismiss, dismissing\\n\\nthe claims against the West Virginia State Police and those brought against the police\\n\\nofficers in their official capacities. As a result, claims remained against only Trooper\\n\\nCook and Colonel Smithers in their individual capacities. The claims against Trooper\\n\\nCook included section 1983 claims for false arrest, excessive force, malicious\\n\\n 4\\n Trooper Cook testified that after he “took the phones,” Ryan and Tiffanie Hupp\\ngave him the passwords for the phones and signed a property receipt. J.A. 572–73.\\n\\n 7\\n\\fprosecution, unlawful search of Myers’s house, unlawful seizure of the electronic\\n\\ndevices, and unlawful seizure of Buddy; and state law claims for malicious prosecution,\\n\\nintentional infliction of emotional distress (outrage), and battery. A claim for supervisory\\n\\nliability under section 1983 also remained against Colonel Smithers.\\n\\n Trooper Cook and Colonel Smithers moved for summary judgment on all of the\\n\\nremaining claims, and Appellants moved for partial summary judgment on the false\\n\\narrest, excessive force, and unlawful search and seizure claims. The district court granted\\n\\nsummary judgment to Trooper Cook and Colonel Smithers and denied summary\\n\\njudgment to Appellants. The district court found that Trooper Cook is entitled to\\n\\nqualified immunity on the false arrest, excessive force, and malicious prosecution claims\\n\\nbrought under section 1983 as well as on the common law malicious prosecution claim.\\n\\nThe district court granted summary judgment to Trooper Cook on the outrage and battery\\n\\nclaims as well. Because the court found that Trooper Cook did not violate Hupp’s\\n\\nconstitutional rights, it granted summary judgment to Colonel Smithers on the one\\n\\nremaining claim of supervisory liability against him.\\n\\n The district court also granted summary judgment to Trooper Cook on the\\n\\nunlawful search and seizure claims. The court concluded that exigent circumstances\\n\\njustified the search of Myers’s home and the seizure of the electronic devices because an\\n\\nobjectively reasonable officer would have believed that Myers’s family members would\\n\\ndestroy or conceal the video evidence before a warrant could be obtained. With respect\\n\\nto the claim of unlawful seizure of Buddy, the court found that Trooper Cook’s actions\\n\\n\\n\\n 8\\n\\fdid not “meaningfully interfere[ ]” with Appellants’ “possessory interest in Buddy.” J.A.\\n\\n636.\\n\\n Appellants timely appealed the grant of summary judgment on the claims for false\\n\\narrest, excessive force, malicious prosecution, unlawful entry, and unlawful seizure of the\\n\\nelectronic devices. Appellants also appealed the denial of summary judgment in their\\n\\nfavor on the Fourth Amendment claims related to the entry of Myers’s home and seizure\\n\\nof the electronic devices. Appellants did not appeal the grant of summary judgment on\\n\\nthe supervisory liability claim, claim for unlawful seizure of Buddy, or the state law\\n\\nclaims of outrage and battery.\\n\\n The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), and\\n\\n1367, and we have jurisdiction under 28 U.S.C. § 1291.\\n\\n\\n\\n II.\\n\\n We review a district court’s grant of summary judgment de novo, “applying the\\n\\nsame legal standards as the district court, and viewing all facts and reasonable inferences\\n\\ntherefrom in the light most favorable to the nonmoving party.” Heyer v. U.S. Bureau of\\n\\nPrisons, 849 F.3d 202, 208 (4th Cir. 2017) (quoting T-Mobile Ne., LLC v. City Council of\\n\\nNewport News, 674 F.3d 380, 384–85 (4th Cir. 2012)). Summary judgment is\\n\\nappropriate “if the movant shows that there is no genuine dispute as to any material fact\\n\\nand the movant is entitled to judgment as a matter of law.” Id. (quoting Fed. R. Civ. P.\\n\\n56(a)). “A dispute is genuine if ‘a reasonable jury could return a verdict for the\\n\\nnonmoving party.’” Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013)\\n\\n 9\\n\\f(quoting Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012)). “A fact\\n\\nis material if it ‘might affect the outcome of the suit under the governing law.’” Id.\\n\\n(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).\\n\\n\\n\\n III.\\n\\n A.\\n\\n We first address the district court’s determination that Trooper Cook is entitled to\\n\\nqualified immunity on the claims for false arrest, excessive force, and malicious\\n\\nprosecution. “The doctrine of qualified immunity shields government officials from\\n\\nliability for civil damages when their conduct does not violate clearly established\\n\\nconstitutional or other rights that a reasonable officer would have known.” Sims v.\\n\\nLabowitz, 885 F.3d 254, 260 (4th Cir. 2018). The doctrine is intended to “balance[ ] two\\n\\nimportant interests—the need to hold public officials accountable when they exercise\\n\\npower irresponsibly and the need to shield officials from harassment, distraction, and\\n\\nliability when they perform their duties reasonably.” Smith v. Ray, 781 F.3d 95, 100 (4th\\n\\nCir. 2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). It “gives\\n\\ngovernment officials breathing room to make reasonable but mistaken judgments, and\\n\\nprotects all but the plainly incompetent or those who knowingly violate the law.” Stanton\\n\\nv. Sims, 571 U.S. 3, 5 (2013) (internal quotation marks and citation omitted).\\n\\n An official is not entitled to qualified immunity if he or she deprived an individual\\n\\nof a constitutional right and that right was clearly established at the time of the violation.\\n\\nPearson, 555 U.S. at 231. Our analysis is, therefore, two-fold. We must determine\\n\\n 10\\n\\fwhether the facts, viewed in the light most favorable to Appellants, show that Trooper\\n\\nCook violated Appellants’ constitutional or other rights and whether those rights were\\n\\nclearly established at the time of Trooper Cook’s conduct such that a reasonable officer\\n\\nwould have known that the conduct was unconstitutional. Smith, 781 F.3d at 100. We\\n\\nmay consider either prong of the analysis first. Sims, 885 F.3d at 260. The question of\\n\\nwhether a right is clearly established is a question of law for the Court to decide.\\n\\nPritchett v. Alford, 973 F.2d 307, 312 (4th Cir. 1992). The question of whether a\\n\\nreasonable officer would have known that the conduct at issue violated that right, on the\\n\\nother hand, cannot be decided on summary judgment if disputes of the historical facts\\n\\nexist. Smith, 781 F.3d at 100. Thus, “while the purely legal question of whether the\\n\\nconstitutional right at issue was clearly established ‘is always capable of decision at the\\n\\nsummary judgment stage,’ a genuine question of material fact regarding ‘[w]hether the\\n\\nconduct allegedly violative of the right actually occurred . . . must be reserved for trial.’”\\n\\nWillingham v. Crooke, 412 F.3d 553, 559 (4th Cir. 2005) (alteration and omission in\\n\\noriginal) (quoting Pritchett, 973 F.2d at 313).\\n\\n 1. False Arrest\\n\\n We begin with Hupp’s false arrest claim. The Fourth Amendment protects “[t]he\\n\\nright of the people to be secure in their persons . . . against unreasonable searches and\\n\\nseizures.” U.S. Const. amend. IV. A seizure is unreasonable under the Fourth\\n\\nAmendment if it is not based on probable cause. Dunaway v. New York, 442 U.S. 200,\\n\\n213 (1979). Thus, “[i]f a person is arrested when no reasonable officer could believe . . .\\n\\nthat probable cause exists to arrest that person, a violation of a clearly established Fourth\\n\\n 11\\n\\fAmendment right to be arrested only upon probable cause ensues.” Rogers v. Pendleton,\\n\\n249 F.3d 279, 290 (4th Cir. 2001) (citation omitted).\\n\\n The district court determined that a reasonable officer would have believed that\\n\\nprobable cause existed for Hupp’s arrest for obstruction. Appellants, on the other hand,\\n\\ncontend that the historical facts material to a probable cause finding are in dispute.\\n\\n“Probable cause is determined by a ‘totality-of-the-circumstances’ approach.” Smith v.\\n\\nMunday, 848 F.3d 248, 253 (4th Cir. 2017) (citing Illinois v. Gates, 462 U.S. 213, 230\\n\\n(1983)). The inquiry “turns on two factors: ‘the suspect’s conduct as known to the\\n\\nofficer, and the contours of the offense thought to be committed by that conduct.’” Id.\\n\\n(quoting Graham v. Gagnon, 831 F.3d 176, 184 (4th Cir. 2016)). While we look to the\\n\\ninformation available to the officer on the scene at the time, we apply an objective test to\\n\\ndetermine whether a reasonably prudent officer with that information would have thought\\n\\nthat probable cause existed for the arrest. Graham, 831 F.3d at 185. Evidence sufficient\\n\\nto secure a conviction is not required, but probable cause exists only if there is sufficient\\n\\nevidence on which a reasonable officer at the time could have believed that probable\\n\\ncause existed for the arrest. Wong Sun v. United States, 371 U.S. 471, 479 (1963).\\n\\n Because the probable cause inquiry is informed by the “contours of the offense” at\\n\\nissue, we are guided by West Virginia law in determining the scope of the offense of\\n\\nobstruction proscribed by West Virginia Code § 61-5-17(a)—the offense for which Hupp\\n\\nwas arrested. Rogers, 249 F.3d at 291; see Graham, 831 F.3d at 188 (Although “an\\n\\nactual lack of probable cause is not dispositive for qualified immunity purposes[,] . . .\\n\\n[t]he boundaries of the statute [allegedly violated by the plaintiff] are extremely relevant\\n\\n 12\\n\\fto an assessment of whether [an officer’s] mistake was reasonable.”). The plain language\\n\\nof the statute establishes that a person is guilty of obstruction when she, “by threats,\\n\\nmenaces, acts or otherwise forcibly or illegally hinders or obstructs or attempts to hinder\\n\\nor obstruct a law-enforcement officer, probation officer or parole officer acting in his or\\n\\nher official capacity.” W. Va. Code § 61-5-17(a).\\n\\n Interpreting this statute, the Supreme Court of Appeals of West Virginia has held\\n\\nthat a person is guilty of obstruction when she “check[s] or hamper[s] the action of the\\n\\nofficer,” does “something which hinders or prevents or tends to prevent the performance\\n\\nof [the officer’s] legal duty,” or acts in “direct or indirect opposition or resistance to the\\n\\nlawful discharge of [the officer’s] official duty.” State v. Johnson, 59 S.E.2d 485, 487\\n\\n(W. Va. 1950). As West Virginia’s high court has “succinct[ly]” explained, to secure a\\n\\nconviction under section 61-5-17(a), the State must show “forcible or illegal conduct that\\n\\ninterferes with a police officer’s discharge of official duties.” State v. Davis, 735 S.E.2d\\n\\n570, 573 (W. Va. 2012) (quoting State v. Carney, 663 S.E.2d 606, 611 (2008)). Because\\n\\nconduct can obstruct an officer if it is either forcible or illegal, a person may be guilty of\\n\\nobstruction “whether or not force be actually present.” Johnson, 59 S.E.2d at 487.\\n\\nHowever, where “force is not involved to effect an obstruction,” the resulting obstruction\\n\\nitself is insufficient to establish the illegality required by section 61-5-17. Carney, 663\\n\\nS.E.2d at 611. That is, when force is not used, obstruction lies only where an illegal act\\n\\nis performed. This is because “lawful conduct is not sufficient to establish the statutory\\n\\noffense.” Id.\\n\\n\\n\\n 13\\n\\f Of particular relevance to our inquiry here, West Virginia courts have held that\\n\\n“when done in an orderly manner, merely questioning or remonstrating with an officer\\n\\nwhile he or she is performing his or her duty, does not ordinarily constitute the offense of\\n\\nobstructing an officer.” State v. Srnsky, 582 S.E.2d 859, 867 (W. Va. 2003) (quoting\\n\\nState ex rel. Wilmoth v. Gustke, 373 S.E.2d 484, 486 (W. Va. 1988)). For example, the\\n\\nSupreme Court of Appeals has found that no obstruction is committed when a property\\n\\nowner asks a law enforcement officer, “without the use of fighting or insulting words or\\n\\nother opprobrious language and without forcible or other illegal hindrance,” to leave her\\n\\nproperty. Wilmoth, 373 S.E.2d at 487. This principle is based on the First Amendment\\n\\n“right to question or challenge the authority of a police officer, provided that fighting\\n\\nwords or other opprobrious language is not used.” Id.; see Graham, 831 F.3d at 188\\n\\n(“Peaceful verbal criticism of an officer who is making an arrest cannot be targeted under\\n\\na general obstruction of justice statute . . . without running afoul of the First\\n\\nAmendment.” (citation omitted)).\\n\\n On the other hand, certain “threats, language, and menacing demeanor” can\\n\\nconstitute obstruction. State v. Davis, 483 S.E.2d 84, 87 (W. Va. 1996). In Davis, for\\n\\nexample, a police officer responded to a call of shots fired and encountered an intoxicated\\n\\nman who was fighting with his live-in girlfriend. Id. The man told the officer that he had\\n\\na loaded shotgun in the corner of the home, “gestured toward the gun, reminded the\\n\\nofficer in a threatening manner that it was loaded, and employed language indicative of\\n\\nboth his agitated state and his intention to discharge the gun at any time and any place he\\n\\nchose.” Id. The police officer exited the home and was forced to call for backup. Id. at\\n\\n 14\\n\\f86. The court concluded that the “verbal threats and behavior” “had the effect of\\n\\nhindering the police investigation of shots [ ] fired.” Id. at 87.\\n\\n With respect to conduct that involves more than mere verbal interactions with law\\n\\nenforcement, obstruction may be found when a person refuses to comply with an officer’s\\n\\norder. For example, the Supreme Court of Appeals of West Virginia upheld a conviction\\n\\nfor obstruction where the defendant was told that he was being placed under arrest and\\n\\nthen “struggled against arrest.” State v. Forsythe, 460 S.E.2d 742, 745–46 (W. Va.\\n\\n1995). More recently, the court upheld a conviction for obstruction where the defendant\\n\\nrefused to obey a state trooper’s numerous orders to stand to be frisked, began a physical\\n\\naltercation with the trooper, and ultimately grabbed the trooper’s baton and struck the\\n\\ntrooper twice on the head. State v. Lowery, No. 17-0210, 2018 WL 2193241, at *1, 5 (W.\\n\\nVa. May 14, 2018) (unpublished).\\n\\n Applying these principles here, we find that disputes of fact preclude a finding that\\n\\na reasonable officer in Trooper Cook’s position would have believed that probable cause\\n\\nexisted for Hupp’s arrest. Trooper Cook maintains that Hupp’s obstruction began when\\n\\nshe approached him in “an aggressive manner” and continued as she failed to comply\\n\\nwith his orders and “met [Trooper Cook’s order] with a verbal further noncompliance.”\\n\\nJ.A. 210. First, disputes of fact exist with respect to Hupp’s verbal interaction with\\n\\nTrooper Cook. The video evidence shows Hupp running toward Trooper Cook, with her\\n\\narms to her side and her hands empty, after he pulled a gun on her father-in-law’s dog.\\n\\n\\n\\n\\n 15\\n\\fShe testified that she said only “Whoa, whoa, don’t do that, stop.” J.A. 121–22. 5 Even if\\n\\nTrooper Cook’s testimony is to be believed—that Hupp told him that he could not tell her\\n\\nwhat to do on her property—such language is a challenge to the trooper’s authority and\\n\\ndoes not constitute the type of menacing language found be to obstructionist in Davis.\\n\\nThe parties dispute, however, whether Hupp also cursed at Trooper Cook when she\\n\\napproached him. Compare J.A. 210 (Trooper Cook’s testimony that Hupp was\\n\\n“screaming profanities” at him) and J.A. 509 (criminal complaint describing Hupp as\\n\\n“cursing”), with J.A. 122 (Hupp’s testimony that “[t]here was no cussing”) and J.A. 140\\n\\n(Dalton’s testimony that Hupp was not cursing). While a reasonable jury could credit\\n\\nTrooper Cook’s version of the interaction, it could instead believe Hupp that no “fighting\\n\\nor insulting words or other opprobrious language” were used. Wilmoth, 373 S.E.2d at\\n\\n487.\\n\\n Disputes of fact also exist with respect to Hupp’s alleged failure to comply with\\n\\nTrooper Cook’s order to step aside. See Lowery, 2018 WL 2193241, at *5. Trooper\\n\\nCook testified that he gave at least two orders to Hupp to step back, with which she\\n\\nrefused to comply. J.A. 570. Specifically, he testified that he told Hupp to “step back”;\\n\\nthat Hupp responded, “You can’t tell me to f-ing do that”; that he then told Hupp,\\n\\n“Ma’am, I’m not asking you; I’m telling you. Step back”; and that Hupp was “coming\\n\\nback with her opinions and why she’s not going to comply.” J.A. 215. The defense’s\\n\\n\\n 5\\n The video does not contain clear audio of the incident. Therefore, we must look\\nto the parties’ respective deposition testimony and other evidence in the record regarding\\nwhat was said.\\n\\n 16\\n\\fexpert described three orders for Hupp to step back. J.A. 443. 6 Hupp, on the other hand,\\n\\ntestified that her only words to Trooper Cook were, “Whoa, whoa, don’t do that, stop”\\n\\nand that she “didn’t get a chance to hear” any of Trooper Cook’s orders. J.A. 121–22.\\n\\nTrooper Cook even acknowledged that Hupp had only “a split second to comply” with\\n\\nhis order before he grabbed her arm. J.A. 604. Clearly, there is a dispute as to whether\\n\\nHupp refused to comply with Trooper Cook’s orders or was even given the opportunity to\\n\\ncomply with them before she was arrested mere seconds later.\\n\\n Indeed, there is evidence to suggest that, rather than defying Trooper Cook’s order\\n\\nto step back, Hupp was actually acting to comply with his earlier order to restrain Buddy.\\n\\nHupp testified in deposition that she approached Trooper Cook and Buddy partly in\\n\\nresponse to Trooper Cook’s undisputed command to “get control of the dog” or “get a\\n\\nhold of your dog.” J.A. 121, 201, 569–70. Although Trooper Cook testified that Hupp\\n\\nbegan to obstruct him when she approached him in an “aggressive manner,” J.A. 209–10,\\n\\nTrooper Michael testified that Hupp’s “coming down the hill” toward Trooper Cook and\\n\\nBuddy after Trooper Cook’s command to control Buddy “could be viewed as complying\\n\\nwith his request,” J.A. 316.\\n\\n On this disputed evidence, we cannot conclude that a reasonable officer in Trooper\\n\\nCook’s position would have believed that probable cause existed for Hupp’s arrest. With\\n\\n\\n 6\\n All of these orders, and Hupp’s responses and “opinions,” are alleged to have\\nbeen spoken in the incredibly short period of two seconds. Such a back-and-forth\\nexchange would seem to require more than two seconds. At this stage, however, like the\\ndistrict court, we make no determination regarding the credibility of Trooper Cook’s\\ntestimony.\\n\\n 17\\n\\fthe facts viewed in the light most favorable to Hupp, the record shows that she ran to\\n\\nTrooper Cook to comply with his order to have Buddy controlled. Her arms were down\\n\\nat her side and her hands visibly empty. She told Trooper Cook to stop but did not curse\\n\\nat him. Yet a mere second or two later, before she heard any order to move, Trooper\\n\\nCook grabbed her arm and flung her to the ground. Such facts do not reasonably support\\n\\na charge of obstruction under West Virginia law. Accordingly, we reverse the grant of\\n\\nsummary judgment on the false arrest claim. 7\\n\\n 2. Excessive Force\\n\\n Turning to Hupp’s excessive force claim, we also conclude that the district court\\n\\nerred in granting summary judgment to Trooper Cook on qualified immunity grounds.\\n\\nThe Fourth Amendment prohibits police officers from “using excessive force to seize a\\n\\nfree citizen.” Jones v. Buchanan, 325 F.3d 520, 527 (4th Cir. 2003); Graham v. Connor,\\n\\n490 U.S. 386, 395 (1989). Rather, police officers are constitutionally permitted to use\\n\\nonly that force which is reasonable under the circumstances.\\n\\n\\n\\n\\n 7\\n Appellants presented expert reports and deposition testimony from two expert\\nwitnesses, an expert in canine behavior and an expert in police training. Appellants argue\\nthat the expert testimony establishes the unreasonableness of Trooper Cook’s actions in\\nthe way in which he approached Buddy and drew his gun. According to Appellants, the\\ndistrict court’s failure to engage with any of their proffered expert testimony constitutes\\nreversible error in itself. As we have explained, the district court’s grant of qualified\\nimmunity on the false arrest claim is reversed for reasons other than the court’s failure to\\nengage with the expert evidence. That being said, we note that the district court did not\\naddress the expert testimony in its evaluation of the summary judgment motions. We\\nexpect that upon remand, the expert testimony presented by the parties will be\\nappropriately addressed, including any objections to the admissibility of that testimony.\\n\\n 18\\n\\f In determining whether excessive force was used, we consider the facts “from the\\n\\nperspective of a reasonable officer on the scene,” without the “20/20 vision of hindsight.”\\n\\nGraham, 490 U.S. at 397. Therefore, while we do not consider the officer’s “intent or\\n\\nmotivation,” Jones, 325 F.3d at 527 (quoting Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir.\\n\\n1996)), we ask “whether a reasonable officer in the same circumstances would have\\n\\nconcluded that a threat existed justifying the particular use of force,” Elliott, 99 F.3d at\\n\\n642 (citing Graham, 490 U.S. at 396–97). In answering this question, we consider\\n\\nseveral factors, including “the severity of the crime at issue,” whether the “suspect\\n\\npose[d] an immediate threat to the safety of the officers or others,” and whether the\\n\\nsuspect was “actively resisting arrest or attempting to evade arrest by flight.” Graham,\\n\\n490 U.S. at 396; Jones, 325 F.3d at 527. We also consider the extent of the plaintiff’s\\n\\ninjuries. Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994). Ultimately, we must\\n\\ndecide “whether the totality of the circumstances justifie[d] a particular sort of . . .\\n\\nseizure.” Smith, 781 F.3d at 101 (omission in original) (quoting Tennessee v. Garner,\\n\\n471 U.S. 1, 8–9 (1985)).\\n\\n Here, Hupp alleges that Trooper Cook used unlawful force against her by\\n\\n“grabbing and throwing” her to the ground and “pushing her against the police car.” J.A.\\n\\n25. We first dispense with Hupp’s argument that because she was unlawfully arrested,\\n\\nthe use of any force was necessarily unconstitutional. Certainly, we may consider any\\n\\nlack of probable cause for the arrest as we evaluate the reasonableness of the force used.\\n\\nBut we consider the crime that is alleged to have been committed in connection with our\\n\\noverall analysis of all of the circumstances surrounding the use of force. See Graham,\\n\\n 19\\n\\f490 U.S. at 396; Jones, 325 F.3d at 528–31 (explaining that the lack of any crime\\n\\ncommitted by plaintiff weighed heavily in favor of plaintiff’s excessive force claim but\\n\\nnonetheless evaluating remaining Graham factors).\\n\\n Moreover, we do not make any determination as to whether Hupp’s arrest was\\n\\nactually unlawful. Our finding that Trooper Cook is not entitled to qualified immunity on\\n\\nthe false arrest claim at this stage of litigation does not preclude a finding at a later stage\\n\\nthat he lawfully arrested Hupp; a trier of fact could resolve the factual disputes that\\n\\ncurrently exist in Trooper Cook’s favor. Therefore, we cannot agree with Hupp that our\\n\\nevaluation of the grant of qualified immunity on the excessive force claim turns entirely\\n\\non any lack of probable cause for her arrest. Instead, we evaluate the totality of the\\n\\ncircumstances surrounding the use of force against her.\\n\\n In evaluating those circumstances, we note that the extent of Hupp’s injuries is\\n\\nslight. The complaint alleges that Hupp suffered emotional trauma, including anxiety and\\n\\nan inability to sleep, as well as physical injuries. According to her medical records, Hupp\\n\\nsuffered from middle and lower back pain and was diagnosed with a contusion and\\n\\nlumbosacral strain two days after the incident with Trooper Cook. J.A. 543–44. The\\n\\nrecord contains no additional evidence of injury. There is no evidence of serious or\\n\\npermanent physical injuries. Cf. Rowland, 41 F.3d at 172, 174 (finding extent of injuries\\n\\nsignificant where plaintiff suffered torn ligament in his leg, underwent two surgeries, and\\n\\nremained permanently partially disabled).\\n\\n Hupp’s minor injuries, however, are “but one ‘consideration in determining\\n\\nwhether force was excessive.’” E.W. by and through T.W. v. Dolgos, 884 F.3d 172, 185\\n\\n 20\\n\\f(4th Cir. 2018) (quoting Jones, 325 F.3d at 530). Other factors call into question the\\n\\nreasonableness of the use of force against Hupp. First, the severity of the crime for which\\n\\nshe was arrested is slight: obstruction is a misdemeanor. See W. Va. Code § 61-5-17(a).\\n\\nWhen the offense is a “minor one,” we have found “that the first Graham factor weighed\\n\\nin plaintiff’s favor.” Jones, 325 F.3d at 528 (citations omitted). We see no reason to find\\n\\notherwise here.\\n\\n Second, the evidence suggests that Hupp did not “pose[ ] an immediate threat to\\n\\nthe safety of the officers or others.” Graham, 490 U.S. at 396; Jones, 325 F.3d at 528.\\n\\nThe district court found that this factor weighed in favor of qualified immunity, as Hupp\\n\\npositioned herself between Trooper Cook and Buddy, “which could reasonably be\\n\\nconstrued as hindering Cook’s ability to protect himself.” J.A. 620. A review of the\\n\\nrecord, however, suggests otherwise. Hupp is a slender, short, 113-pound female.\\n\\nTrooper Cook, on the other hand, weighs 200 pounds, is a trained police officer, and had\\n\\nundergone training in how to identify and handle aggressive dogs months before Hupp’s\\n\\narrest. Trooper Cook was armed, had his gun drawn, and the video shows that Hupp\\n\\napproached him with her arms down and hands visibly empty. Hupp stood perpendicular\\n\\nto Trooper Cook, did not place herself directly in front of him or his drawn gun, and it\\n\\nwas only after Trooper Cook grabbed her arm that she moved in front of his weapon. In\\n\\nlight of these facts, we cannot agree with the district court that, as a matter of law, Hupp\\n\\nposed a sufficient threat to tip the scale in Trooper Cook’s favor. See Smith, 781 F.3d at\\n\\n102 (finding that second Graham factor weighed in favor of section 1983 plaintiff where\\n\\nplaintiff was a “smaller woman,” officer was “a pretty good size man” as a “200-\\n\\n 21\\n\\fsomething-pound man,” and officer had no reason to believe that the plaintiff was\\n\\narmed); see also Rowland, 41 F.3d at 174 (finding “no threat to the officer or anyone\\n\\nelse” where plaintiff was not armed, officer did not suspect plaintiff was armed, and there\\n\\nwas no “real evidence that this relatively passive, retarded man was a danger to the\\n\\nlarger, trained police officer”).\\n\\n Third, there is disputed evidence of Hupp’s resistance to arrest. The video depicts\\n\\na brief struggle between Hupp and Trooper Cook lasting mere seconds after he grabbed\\n\\nher arm and before she fell to the ground. Trooper Cook grabbed Hupp’s arm mere\\n\\nseconds after she approached him and, according to Hupp, before she had the opportunity\\n\\nto hear any order that he may have given for her to move. She testified that her reaction\\n\\nafter having her arm seized was to try to put her arms up in surrender. J.A. 123. We\\n\\nhave held that a reasonable officer could not believe that the “initial act of pulling [one’s]\\n\\narm away” when an officer grabs a person “without warning or explanation” justifies the\\n\\nofficer’s decision to throw the person to the ground. Smith, 781 F.3d at 103.\\n\\n Trooper Cook, on the other hand, testified that Hupp took a “fighting stance” with\\n\\nhim and that he “stiff armed” her in order to holster his weapon. J.A. 219, 571. Trooper\\n\\nCook also testified that immediately before Hupp fell to the ground, she grabbed his\\n\\nclothing and cursed at him. 8 On these disputed versions of the facts, and in light of the\\n\\nother Graham factors that are unfavorable to Trooper Cook, we cannot say that a\\n\\n\\n 8\\n Hupp’s alleged grabbing of Trooper Cook is not captured in the video because\\nshe allegedly did so when his back was turned to the camera and blocking the camera’s\\nview of Hupp.\\n\\n 22\\n\\freasonable officer would consider Trooper Cook’s use of force reasonable under the\\n\\ncircumstances. See Rowland, 41 F.3d at 174 (concluding that disputed versions of\\n\\nplaintiff’s resistance combined with other “unfavorable” Graham factors precluded\\n\\nqualified immunity on excessive force claim).\\n\\n 3. Malicious Prosecution\\n\\n We next address Hupp’s section 1983 malicious prosecution claim. A malicious\\n\\nprosecution claim brought under section 1983 “is properly understood as a Fourth\\n\\nAmendment claim for unreasonable seizure which incorporates certain elements of the\\n\\ncommon law tort.” Evans v. Chalmers, 703 F.3d 636, 646 (4th Cir. 2012) (quoting\\n\\nLambert v. Williams, 223 F.3d 257, 261 (4th Cir. 2000)); see Manuel v. City of Joliet, Ill.,\\n\\n137 S. Ct. 911, 919 (2017) (“If the complaint is that a form of legal process resulted in\\n\\npretrial detention unsupported by probable cause, then the right allegedly infringed lies in\\n\\nthe Fourth Amendment.”). To prove such a claim, a plaintiff must show “that the\\n\\ndefendant (1) caused (2) a seizure of the plaintiff pursuant to legal process unsupported\\n\\nby probable cause, and (3) criminal proceedings terminated in plaintiff’s favor.” Evans,\\n\\n703 F.3d at 647.\\n\\n There is no dispute here that Hupp was arrested, prosecuted, and acquitted. What\\n\\nis disputed is whether probable cause existed for Hupp’s prosecution. On this point, the\\n\\ndistrict court determined that probable cause existed for Hupp’s arrest and that the\\n\\nmagistrate’s subsequent finding of probable cause rendered Hupp’s prosecution\\n\\nreasonable. J.A. 624. To be sure, we have held that “[o]nce a pretrial seizure has been\\n\\nrendered reasonable by virtue of a probable cause determination by a neutral and\\n\\n 23\\n\\fdetached magistrate, the continuing pretrial seizure of a criminal defendant—either by\\n\\ndetention or by bond restrictions—is reasonable.” Brooks v. City of Winston-Salem, N.C.,\\n\\n85 F.3d 178, 184 (4th Cir. 1996). We later explained, though, that a finding of probable\\n\\ncause by a neutral magistrate only “weigh[s] heavily toward a finding that [the\\n\\ndefendant] is immune” from suit. Merchant v. Bauer, 677 F.3d 656, 664 (4th Cir.)\\n\\n(quoting Wadkins v. Arnold, 214 F.3d 535, 541 (4th Cir. 2000)), cert. denied, 568 U.S.\\n\\n1068 (2012). Thus, where a police officer takes certain steps, such as first conferring\\n\\nwith a prosecutor about moving forward with a criminal prosecution, and a magistrate\\n\\njudge later affirms the officer’s determination that probable cause exists for the\\n\\nprosecution, those steps weigh in favor of a finding of qualified immunity. They do not\\n\\nend the qualified immunity inquiry, however, as they “need only appropriately be taken\\n\\ninto account in assessing the reasonableness of [the officer’s] actions.” Id. (internal\\n\\nquotation marks and citation omitted). A grant of qualified immunity still rests on our\\n\\ndetermination that an officer acted reasonably under the circumstances.\\n\\n Because a magistrate’s finding of probable cause is but a factor in our\\n\\nconsideration of the overall reasonableness of the officer’s actions, a defendant to a\\n\\nmalicious prosecution claim is not absolved from liability when the magistrate’s\\n\\nprobable-cause finding “is predicated solely on a police officer’s false statements.”\\n\\nManuel, 137 S. Ct. at 918. An officer who lies to secure a probable-cause determination\\n\\ncan hardly be called reasonable. Likewise, where an officer provides misleading\\n\\ninformation to the prosecuting attorney or where probable cause is “plainly lacking,”\\n\\nMcKinney v. Richland Cty. Sheriff’s Dep’t, 431 F.3d 415, 419 (4th Cir. 2005), the\\n\\n 24\\n\\fprocedural steps taken by an officer no longer afford a shield against a Fourth\\n\\nAmendment claim. This is because “[l]egal process has gone forward, but it has done\\n\\nnothing to satisfy the Fourth Amendment’s probable-cause requirement.” Manuel, 137 S.\\n\\nCt. at 918–19.\\n\\n Hupp contends that the magistrate’s finding of probable cause does not afford\\n\\nTrooper Cook qualified immunity on her malicious prosecution claim because the\\n\\nprobable-cause finding rested on false statements made by Trooper Cook in the criminal\\n\\ncomplaint against her. Specifically, Hupp asserts that the criminal complaint falsely\\n\\nstated, inter alia, that she refused to comply with Trooper Cook’s orders to “step aside,”\\n\\nbegan cursing at him, “raised her hands towards” him before he grabbed her arm, and\\n\\nthen grabbed at him and “began cursing” after he grabbed her arm. J.A. 509; Opening\\n\\nBr. 18, 55.\\n\\n We agree with Hupp that the district court’s finding of qualified immunity on this\\n\\nclaim was in error. As we have explained, disputes of fact preclude a finding at this stage\\n\\nthat a reasonable officer would have believed that probable cause existed for Hupp’s\\n\\narrest. Those disputes relate to many of the facts set forth in the criminal complaint on\\n\\nwhich the magistrate relied. For example, there is a dispute as to whether Hupp refused\\n\\nto comply with Trooper Cook’s orders for her to move or whether she was instead\\n\\nattempting to obey his order to control Buddy. There is also a dispute as to whether\\n\\nHupp was cursing at Trooper Cook. Moreover, contrary to Trooper Cook’s statement in\\n\\nthe criminal complaint, the video clearly depicts Hupp’s hands down at her side during\\n\\n\\n\\n 25\\n\\fthe entirety of the few seconds before Trooper Cook grabbed her arm. It was only after\\n\\nhe grabbed her arm that she struggled, very briefly, with him.\\n\\n If we excise the contested statements from the criminal complaint, the additional\\n\\nfacts available to the magistrate do not, as the district court found, provide “ample\\n\\nevidence” for a probable-cause determination. J.A. 624. The district court emphasized\\n\\nthe fact that Hupp “stepped in between the dog and the undersigned officer,” which,\\n\\naccording to the district court, showed that Hupp stepped in between Buddy and Trooper\\n\\nCook as Trooper Cook was attempting to protect himself from the dog. J.A. 509, 624.\\n\\nHowever, in the criminal complaint, Trooper Cook also clearly stated that Buddy had\\n\\n“reached the end of the tether” and could not “reach” Trooper Cook. J.A. 509. Contrary\\n\\nto showing that Hupp interfered with Trooper Cook’s ability to protect himself from\\n\\nBuddy, the complaint established that Trooper Cook knew Buddy was no longer a danger\\n\\nto him. No other basis for Hupp’s alleged obstruction of Trooper Cook is identified in\\n\\nthe complaint.\\n\\n Given the disputes of the underlying historical facts, the supported assertion that\\n\\nTrooper Cook’s statements in the criminal complaint were not entirely truthful, and the\\n\\nlack of undisputed evidence that otherwise would support a probable-cause finding, we\\n\\ncannot find that Trooper Cook is entitled to qualified immunity on Hupp’s malicious\\n\\nprosecution claim under section 1983.\\n\\n 4. Common Law Malicious Prosecution\\n\\n Trooper Cook’s entitlement to immunity on Hupp’s common law malicious\\n\\nprosecution claim fares no better. Under West Virginia law, a plaintiff bringing a\\n\\n 26\\n\\fmalicious prosecution claim must show “(1) that the prosecution was set on foot and\\n\\nconducted to its termination, resulting in plaintiff’s discharge; (2) that it was caused or\\n\\nprocured by defendant; (3) that it was without probable cause; and (4) that it was\\n\\nmalicious.” Goodwin v. City of Shepherdstown, 825 S.E.2d 363, 368 (W. Va. 2019)\\n\\n(citation omitted). Where a “want of probable cause for [the] prosecution is shown by a\\n\\npreponderance of the evidence,” malice may be inferred. Truman v. Fid. & Cas. Co. of\\n\\nN.Y., 123 S.E.2d 59, 68 (W. Va. 1961); Morton v. Chesapeake & Ohio Ry. Co., 399\\n\\nS.E.2d 464, 467 (W. Va. 1990).\\n\\n The district court determined that, like with the section 1983 malicious\\n\\nprosecution claim, Trooper Cook is entitled to qualified immunity on the common law\\n\\nclaim because probable cause existed for Hupp’s arrest. The qualified immunity\\n\\navailable against claims brought under section 1983 generally does not extend to\\n\\ncommon law claims. Nonetheless, West Virginia affords immunity “from personal\\n\\nliability for official acts if the involved conduct did not violate clearly established laws of\\n\\nwhich a reasonable official would have known.” W. Va. Reg’l Jail & Corr. Facility Auth.\\n\\nv. A.B., 766 S.E.2d 751, 762 (W. Va. 2014) (citation omitted). The state’s qualified\\n\\nimmunity doctrine borrows heavily from the analogous federal qualified immunity\\n\\njurisprudence but also requires an additional finding that the defendant’s alleged conduct\\n\\nnot be “fraudulent, malicious, or otherwise oppressive” to the plaintiff. Id.; Hutchison v.\\n\\nCity of Huntington, 479 S.E.2d 649, 659 (W. Va. 1996).\\n\\n As discussed above, questions of fact exist that must first be resolved before a\\n\\ncourt can determine that a reasonable officer in Trooper Cook’s position would have\\n\\n 27\\n\\fbelieved that probable cause existed for Hupp’s arrest and prosecution. Therefore,\\n\\nTrooper Cook is not entitled to immunity on Hupp’s common law malicious prosecution\\n\\nclaim, and the district court’s grant of summary judgment is reversed.\\n\\n * * *\\n\\n To summarize, qualified immunity is appropriate at this stage only if there are no\\n\\ndisputes of the historical facts underlying the false arrest, excessive force, and malicious\\n\\nprosecution claims. As we have explained, disputes exist. Those disputes must be\\n\\nsubmitted to a jury. The district court may then “reserve for itself the legal question of\\n\\nwhether [Trooper Cook] is entitled to qualified immunity on the facts found by the jury.”\\n\\nWillingham, 412 F.3d at 560.\\n\\n B.\\n\\n We turn finally to Appellants’ claims that Trooper Cook unlawfully entered\\n\\nMyers’s home and unlawfully seized electronic devices from within the home. Under the\\n\\nFourth Amendment, “searches and seizures inside a home without a warrant are\\n\\npresumptively unreasonable” and, thus, presumptively unconstitutional. Payton v. New\\n\\nYork, 445 U.S. 573, 586 (1980); United States v. Yengel, 711 F.3d 392, 396 (4th Cir.\\n\\n2013). This rule is subject to “narrow and well-delineated” exceptions, Yengel, 711 F.3d\\n\\nat 396, one of which is when exigent circumstances justify the warrantless entry of a\\n\\nhome, Mincey v. Arizona, 437 U.S. 385, 392–94 (1978). Exigent circumstances that may\\n\\njustify a warrantless entry include “the imminent destruction of evidence.” United States\\n\\nv. Brown, 701 F.3d 120, 126 (4th Cir. 2012). That is, police officers may enter a home\\n\\nwithout a warrant when they “(1) have probable cause to believe that evidence of illegal\\n\\n 28\\n\\factivity is present and (2) reasonably believe that evidence may be destroyed or removed\\n\\nbefore they could obtain a search warrant.” United States v. Cephas, 254 F.3d 488, 494–\\n\\n95 (4th Cir. 2001) (citing United States v. Turner, 650 F.2d 526, 528 (4th Cir. 1981)).\\n\\nLikewise, “[w]here law enforcement authorities have probable cause to believe that\\n\\n[property] holds contraband or evidence of a crime,” warrantless seizure of the property\\n\\nis permitted under the Fourth Amendment “if the exigencies of the circumstances demand\\n\\nit.” United States v. Place, 462 U.S. 696, 701 (1983).\\n\\n Factors to be considered in determining whether exigent circumstances justify a\\n\\nwarrantless entry include: “(1) the degree of urgency involved and the amount of time\\n\\nnecessary to obtain a warrant; (2) the officers’ reasonable belief that the contraband is\\n\\nabout to be removed or destroyed; (3) the possibility of danger to police guarding the site;\\n\\n(4) information indicating the possessors of the contraband are aware that the police are\\n\\non their trail; and (5) the ready destructibility of the contraband.” Turner, 650 F.2d at\\n\\n528. In evaluating these factors, courts consider “[t]he appearance of the scene of the\\n\\nsearch in the circumstances presented as it would appear to reasonable and prudent men\\n\\nstanding in the shoes of the officers.” United States v. Reed, 935 F.2d 641, 643 (4th Cir.\\n\\n1991) (alteration in original) (citations omitted).\\n\\n This case does not present the usual case for exigency; it does not involve a\\n\\nwarrantless entry into a home to seize contraband that may be imminently destroyed. See\\n\\nCephas, 254 F.3d at 495–96 (finding exigency where officer had probable cause to\\n\\nbelieve marijuana was inside apartment and would be destroyed if officer waited to\\n\\nsecure warrant); Brown, 701 F.3d at 126–27 (finding exigency where probable cause\\n\\n 29\\n\\fexisted to believe that defendant had evidence of child pornography on computers at\\n\\nwork that could be deleted before a warrant was obtained). Rather, this case involves a\\n\\nwarrantless entry into a home to seize evidence that the police officer understood would\\n\\nnot be destroyed. The video was taken by Hupp’s husband, and Trooper Cook conceded\\n\\nthat he believed Hupp’s husband was glad to have the evidence and would not want to\\n\\npart with it. Ryan recorded the video as “[p]roof, if anything were to happen,” for his\\n\\nwife’s benefit. J.A. 160. That is, he believed that the video could exonerate his wife, not\\n\\nincriminate her. Thus, this case is unlike the “vast majority of cases in which evidence is\\n\\ndestroyed by persons who are engaged in illegal conduct, [where] the reason for the\\n\\ndestruction is fear that the evidence will fall into the hands of law enforcement.”\\n\\nKentucky v. King, 563 U.S. 452, 461 (2011).\\n\\n 1.\\n\\n Appellants argue that the exigency test cannot be satisfied as a matter of law\\n\\nbecause there is no evidence that Ryan Hupp intended to destroy or conceal the video.\\n\\nTrooper Cook counters that there is evidence that Ryan intended to destroy or at least\\n\\nconceal the video from the police before a warrant could issue. According to Trooper\\n\\nCook, Ryan was “glad to have” the video only before he realized that Trooper Cook\\n\\nwanted it. Resp. Br. 39 n.150. Trooper Cook points to evidence that after he entered the\\n\\nhouse and asked about the video, Ryan told him, “Don’t worry. I deleted it. It was on\\n\\nthis phone.” J.A. 258. Additionally, another of Ryan’s family members, Dalton, is heard\\n\\non the video telling Ryan not to let the troopers know that Ryan was recording them.\\n\\n\\n\\n 30\\n\\fThus, Trooper Cook asserts, it was reasonable for him to believe that if he did not enter\\n\\nand seize the devices at that time, the evidence would be destroyed or concealed.\\n\\n The evidence highlighted by Trooper Cook, however, is irrelevant to the exigency\\n\\nanalysis. This is because the “existence of exigent circumstances must be determined as\\n\\nof the moment of the warrantless entry of the officers onto the premises.” Reed, 935 F.2d\\n\\nat 643. Ryan’s comments to Trooper Cook about deleting the video footage were made\\n\\nonly after Trooper Cook had entered Myers’s home and seized three of the electronic\\n\\ndevices. According to Trooper Cook’s own testimony, he stepped across the threshold\\n\\ninto the home, asked Myers’s family members that were in the house about the location\\n\\nof the video, received no response, began to seize electronic devices within sight, and\\n\\nonly then did Ryan “step[ ] forward from back up the hallway” and tell Trooper Cook\\n\\nthat he had deleted the video from his cell phone. J.A. 258–59. Similarly, Dalton’s\\n\\ncomments heard in the video were not made in Trooper Cook’s presence; an officer\\n\\nwould have heard those comments only after seizing the cell phone and watching the\\n\\nvideo. Thus, before Trooper Cook entered the home and began seizing the devices, his\\n\\nadmitted understanding was that Ryan was happy to have the video footage and would\\n\\nnot want to destroy it. Of course, we must determine whether a reasonable person in\\n\\nTrooper Cook’s position would have believed that Ryan intended to destroy the video.\\n\\nOn the facts presented to us, we see no reason to believe that an objective officer would\\n\\nhave believed any differently than Trooper Cook did—that Ryan had recorded his wife’s\\n\\narrest, was happy about having recorded it, and would not want to delete that recording.\\n\\n\\n\\n 31\\n\\f Trooper Cook’s subjective understanding, however, is not the determinative\\n\\nfactor. Rather, we must determine whether a reasonable officer in Trooper Cook’s\\n\\nposition would have believed that Ryan—or another of Hupp’s family members present\\n\\nat the time—was likely to destroy or conceal the video. See Reed, 935 F.2d at 643.\\n\\nBased on the information available to an officer in Trooper Cook’s position at the\\n\\nmoment that he entered Myers’s home, we cannot say as a matter of law that no\\n\\nreasonable officer would have believed that the video would be preserved while the\\n\\ntroopers obtained a warrant. Having heard Ryan yell to his wife not to worry because he\\n\\nrecorded her interaction with Trooper Cook, a reasonable officer could conclude, like\\n\\nTrooper Cook initially did, that Ryan was glad to have the video and would not destroy it.\\n\\nOn the other hand, Hupp was believed to have committed a crime; the video documenting\\n\\nthat crime was recorded by Hupp’s husband; and a reasonable officer could have believed\\n\\nthat, as Hupp’s husband, Ryan would conceal or destroy the video evidence of her crime\\n\\nbefore handing it over to the police. We are thus hesitant to find that, as a matter of law,\\n\\nTrooper Cook unreasonably believed that the video was likely to be concealed before a\\n\\nwarrant could issue. Instead, the question of whether such a belief was reasonable under\\n\\nthe circumstances known to the officers at the time of Trooper Cook’s entry into Myers’s\\n\\nhome must be submitted to a factfinder.\\n\\n Turning to the other exigency factors, we note that there is no evidence regarding\\n\\nthe time needed to secure a warrant. The record suggests, though, that there was little to\\n\\nno possibility of danger to the troopers if they stood guard while a warrant was secured.\\n\\nSee Turner, 650 F.2d at 528. Trooper Cook testified that when he first approached\\n\\n 32\\n\\fMyers’s house, he saw Hupp and Lindsey with a “pistol crossbow” but saw no arrows\\n\\nand believed that Hupp and Lindsey “were playing with something with [sic] the creek”\\n\\nnext to the house. J.A. 565–66. Trooper Cook did nothing to secure the crossbow and\\n\\napparently did not consider it a threat; in fact, there is evidence that the crossbow was a\\n\\nbroken plastic toy that belonged to Hupp’s three-year-old son. J.A. 85, 128, 141. Buddy,\\n\\nthe dog believed to be vicious, was tethered at the time of Hupp’s arrest. And although\\n\\nthe two troopers were outnumbered by Myers’s family members, one of those family\\n\\nmembers was a toddler, another was pregnant, and there is no evidence that any of them\\n\\nwere armed. Therefore, there does not appear to have been any danger to the troopers.\\n\\nSee Yengel, 711 F.3d at 398 (finding no exigency when officer was informed that there\\n\\nwas a grenade in house but other information available to officer indicated “stable nature\\n\\nof the threat”); United States v. Whitehorn, 813 F.2d 646, 649 (4th Cir. 1987) (affirming\\n\\nfinding that exigency did not justify warrantless bomb sweep when there was no evidence\\n\\n“that anyone was evacuated from the building or warned of the potential danger, or that\\n\\nthe agents had otherwise prepared for the risk of an exploding bomb”); cf. Reed, 935 F.2d\\n\\nat 642–43 (finding exigency where police officers saw sawed-off shotgun eighteen inches\\n\\nfrom man sleeping in a home where another man, known to carry firearms and with past\\n\\narrests for assault and brandishing weapons, resided).\\n\\n Nor was the video the only corroborating evidence of Hupp’s alleged crime;\\n\\nTrooper Michael was also a witness, as were several of Hupp’s family members. That\\n\\nfact, coupled with the minor crime for which Hupp was arrested, suggest that the level of\\n\\nurgency to obtain the video was not high. See Welsh v. Wisconsin, 466 U.S. 740, 750\\n\\n 33\\n\\f(1984) (“Our hesitation in finding exigent circumstances . . . is particularly appropriate\\n\\nwhen the underlying offense for which there is probable cause to arrest is relatively\\n\\nminor.”).\\n\\n While these other factors weigh against a finding of exigency, a jury could\\n\\nnonetheless find that Trooper Cook reasonably believed that the video was at risk of\\n\\nbeing deleted or concealed. Therefore, we decline Appellants’ invitation to find that\\n\\nTrooper Cook’s entry into Myers’s home and his seizure of the electronic devices were\\n\\nunreasonable as a matter of law. Instead, we remand for a trial to determine whether\\n\\nTrooper Cook’s actions were reasonable. 9\\n\\n 2.\\n\\n We also take a moment to address Trooper Cook’s view of the exigency exception\\n\\nto the warrant requirement. In an era in which cell phones are increasingly used to\\n\\ncapture much of what happens in daily life, it is important to emphasize the limitations\\n\\nthat the Fourth Amendment continues to place on a state’s seizure of video evidence.\\n\\n Trooper Cook testified that his regular practice is to seize any video recording that\\n\\nhe believes to contain evidence of a crime he is investigating. J.A. 237–39. But the\\n\\nexigent-circumstances exception does not permit police officers to do what Trooper Cook\\n\\nroutinely does: seize video evidence without a warrant even when there is no reason to\\n\\n\\n 9\\n Because we cannot say as a matter of law that an officer in Trooper Cook’s\\nposition would reasonably have believed that the video evidence would be concealed or\\ndestroyed before a warrant for the video’s seizure could be obtained, Trooper Cook is not\\nentitled to qualified immunity on the search and seizure claims. See Smith, 781 F.3d at\\n100.\\n\\n 34\\n\\fbelieve that the evidence will likely be destroyed or concealed. Such a rule would allow\\n\\nofficers to seize as a matter of course video-recording devices from not just those\\n\\ninvolved in an incident, but also from neighbors and other curious bystanders who\\n\\nhappen to record the events as they transpire. Under this view, police officers would\\n\\nlawfully be permitted to enter the home of every person living nearby who stands in her\\n\\ndoorway or window recording an arrest, to seize her recording device, and to do so\\n\\nwithout a warrant or her consent—simply because video evidence, by its nature, can be\\n\\neasily deleted.\\n\\n Such a view finds no support in our Fourth Amendment jurisprudence. While\\n\\nvideo evidence contained in a cell phone can be easily deleted or concealed, it is not\\n\\nmerely the ease with which evidence may be destroyed or concealed that dictates\\n\\nexigency. An officer must also have reason to believe that the evidence will be destroyed\\n\\nor concealed. In short, adopting the broad definition of exigency urged by Trooper Cook\\n\\nwould remove the exigent-circumstances exception to the warrant requirement from the\\n\\nclass of “narrow and well-delineated” exceptions permissible under the Fourth\\n\\nAmendment. Yengel, 711 F.3d at 396. It would convert exigency from an exception to\\n\\nthe rule.\\n\\n\\n\\n IV.\\n\\n For the foregoing reasons, we hold that the district court erred in granting\\n\\nsummary judgment to Trooper Cook on the false arrest, excessive force, malicious\\n\\nprosecution, and unlawful entry and seizure claims. We also hold that the district court\\n\\n 35\\n\\fproperly denied Appellants summary judgment on the unlawful entry and seizure-of-\\n\\ndevices claims. Accordingly, the district court’s order denying Appellants’ partial\\n\\nsummary judgment motion on the search and seizure claims is affirmed and its order\\n\\ngranting summary judgment to Trooper Cook is reversed. This matter is remanded to the\\n\\ndistrict court for trial on each of Appellants’ claims.\\n\\n\\n\\n AFFIRMED IN PART, REVERSED IN PART, AND REMANDED\\n\\n\\n\\n\\n 36\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2960,"cells":{"id":{"kind":"number","value":4643374,"string":"4,643,374"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee, v. Roger Dale CHARLES, II, Defendant - Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Roger Charles, II"},"decision_date":{"kind":"string","value":"2019-07-26"},"docket_number":{"kind":"string","value":"17-7416"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Wilkinson, Niemeyer, Duncan\", \"parties\": \"\", \"opinions\": [{\"author\": \"NIEMEYER, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 17-7416\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nROGER DALE CHARLES, II,\\n\\n Defendant - Appellant.\\n\\n\\nAppeal from the United States District Court for the Western District of North Carolina,\\nat Bryson City. Martin K. Reidinger, District Judge. (2:04-cr-00027-MR-DLH-1; 1:16-\\ncv-00136-MR)\\n\\n\\nArgued: May 7, 2019 Decided: July 26, 2019\\n\\n\\nBefore WILKINSON and NIEMEYER, Circuit Judges, and DUNCAN, Senior Circuit\\nJudge.\\n\\n\\nAffirmed and remanded by published opinion. Judge Niemeyer wrote the opinion, in\\nwhich Judge Wilkinson and Senior Judge Duncan joined.\\n\\n\\nARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH\\nCAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright,\\nOFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for\\nAppellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL\\nDEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina,\\nfor Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED\\n\\fSTATES ATTORNEY, Charlotte, North Carolina, for Appellee.\\n\\n\\n\\n\\n 2\\n\\fNIEMEYER, Circuit Judge:\\n\\n The “concurrent sentence doctrine” authorizes a court to leave the validity of one\\n\\nconcurrent sentence unreviewed when another is valid and carries the same or greater\\n\\nduration of punishment so long as there is no substantial possibility that the unreviewed\\n\\nsentence will adversely affect the defendant or, stated otherwise, so long as it can be\\n\\nforeseen with reasonable certainty that the defendant will suffer no adverse collateral\\n\\nconsequences by leaving it unreviewed. In this case, we find that this standard is\\n\\nsatisfied when the only potential harm to the defendant is grounded on unrealistic\\n\\nspeculation.\\n\\n In 2005, Roger Charles, II, was convicted of possession of more than 50 grams of\\n\\ncocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and\\n\\npossession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). On his drug-\\n\\ntrafficking offense, he was sentenced to 360 months’ imprisonment and 10 years of\\n\\nsupervised release, and on his firearm offense he was sentenced to 360 months’\\n\\nimprisonment and 3 years of supervised release, with the two sentences to be served\\n\\nconcurrently. Both sentences were enhanced by prior felony convictions. On the drug-\\n\\ntrafficking offense, the prior convictions served as the basis for finding Charles to be a\\n\\ncareer offender under U.S.S.G. § 4B1.1(a), and on the firearm offense, they served as a\\n\\nbasis for finding Charles to be an armed career criminal under 18 U.S.C. § 924(e) (the\\n\\nArmed Career Criminal Act (“ACCA”)).\\n\\n Ten years later, after the Supreme Court handed down its decision in Johnson v.\\n\\nUnited States, 135 S. Ct. 2551 (2015), which narrowed the category of offenses that can\\n\\n 3\\n\\fbe used to enhance sentences under ACCA, Charles filed a motion under 28 U.S.C.\\n\\n§ 2255 to reduce the sentences for both of his convictions. The district court found\\n\\nCharles’s sentence for drug trafficking to be valid and declined to review the sentence for\\n\\nhis firearm conviction, applying the concurrent sentence doctrine. The court concluded\\n\\nthat leaving the firearm sentence unreviewed would cause Charles no “realistic potential\\n\\nadverse collateral consequence.”\\n\\n On appeal, Charles contends that the district court erred in applying the concurrent\\n\\nsentence doctrine because he would indeed be exposed to the possibility of a collateral\\n\\nconsequence if his firearm sentence were not reviewed and reduced. Because the\\n\\ncollateral consequence posited by Charles rests on unrealistic speculation, however, we\\n\\naffirm the district court’s application of the concurrent sentence doctrine in the\\n\\ncircumstances presented to it.\\n\\n Nonetheless, after the parties filed their briefs in this appeal, Congress enacted the\\n\\nFirst Step Act of 2018, and Charles now claims that leaving his firearm sentence\\n\\nunreviewed will also have the consequence of denying him relief under that Act. Given\\n\\nthis development, we remand to allow the district court, in the first instance, to consider\\n\\nCharles’s argument that he is eligible for a reduction of his drug-trafficking sentence\\n\\nunder the First Step Act.\\n\\n\\n I\\n\\n After Charles was convicted of drug trafficking and the illegal possession of a\\n\\nfirearm, the Probation Officer prepared a presentence report finding that Charles was a\\n\\n\\n 4\\n\\fcareer offender under U.S.S.G. § 4B1.1(a) and, for purposes of sentencing on the firearm\\n\\nconviction, an armed career criminal under ACCA, 18 U.S.C. § 924(e). The report based\\n\\nthese findings on Charles’s prior Florida felony convictions for (1) battery of a law\\n\\nenforcement officer, (2) armed burglary with a deadly weapon, (3) escape, and\\n\\n(4) resisting an officer with violence. As a career offender, the presentence report\\n\\nconcluded that Charles was subject to an advisory sentencing range of 360 months’ to life\\n\\nimprisonment. And as an armed career criminal, Charles was subject to a mandatory\\n\\nminimum sentence for his firearm conviction of 15 years’ imprisonment and a maximum\\n\\nof life imprisonment, see 18 U.S.C. § 924(e)(1), which was an enhancement of what\\n\\nwould otherwise have been a maximum sentence of 10 years’ imprisonment, see id.\\n\\n§ 924(a)(2).\\n\\n The district court adopted the presentence report and classified Charles as both a\\n\\ncareer offender and an armed career criminal. It then sentenced him to 360 months’\\n\\nimprisonment and 10 years of supervised release on the drug-trafficking offense and 360\\n\\nmonths’ imprisonment and 3 years of supervised release on the firearm offense, with both\\n\\nsentences to run concurrently.\\n\\n Charles’s convictions and sentences were affirmed on direct appeal. See United\\n\\nStates v. Charles, 195 F. App’x 133 (4th Cir. 2006) (per curiam).\\n\\n Ten years later, in May 2016, Charles filed a motion under 28 U.S.C. § 2255 to\\n\\nvacate his sentences based on the Supreme Court’s decision in Johnson, 135 S. Ct. at\\n\\n2563, which held that the “residual clause” used to define a sentence-enhancing “violent\\n\\nfelony” in ACCA was impermissibly vague and therefore that “imposing an increased\\n\\n 5\\n\\fsentence under [ACCA’s] residual clause . . . violate[d] the Constitution’s guarantee of\\n\\ndue process,” and Welch v. United States, 136 S. Ct. 1257, 1265 (2016), which made\\n\\nJohnson retroactively applicable to cases on collateral review. In his § 2255 motion,\\n\\nCharles argued that because three of his four prior convictions qualified as predicate\\n\\nconvictions only under ACCA’s residual clause, they were illegally used to enhance his\\n\\nfirearm sentence. And by the force of Johnson’s reasoning, he also argued that those\\n\\nsame offenses could not be used to designate him as a career offender under the\\n\\nSentencing Guidelines for purposes of enhancing his sentence for drug trafficking.\\n\\n The district court placed Charles’s § 2255 motion in abeyance pending the\\n\\nSupreme Court’s decision in Beckles v. United States, which ultimately held that “the\\n\\nadvisory Guidelines are not subject to vagueness challenges under the Due Process\\n\\nClause,” 137 S. Ct. 886, 890 (2017).\\n\\n Based on Beckles, the government filed a motion to dismiss Charles’s § 2255\\n\\nmotion. It noted first that after Beckles, it was clear that Charles’s challenge to his\\n\\ncareer-offender designation had no merit and that his 360-month sentence on the drug-\\n\\ntrafficking offense was therefore valid. Second, it argued with regard to his firearm\\n\\nsentence that even if Charles had been improperly classified as an armed career criminal\\n\\nunder ACCA, the court need not address Charles’s challenge to that sentence because\\n\\nCharles would still have to serve the valid 360-month sentence on his drug-trafficking\\n\\nconviction and a decision not to review the ACCA enhancement on his firearm\\n\\nconviction would have no adverse collateral consequence.\\n\\n\\n\\n 6\\n\\f In response to the government’s motion, Charles contended that he had been\\n\\n“sentenced to an unconstitutional, over-the-maximum sentence for his [firearm]\\n\\nconviction” and that “[t]he concurrent sentence doctrine [was] inapplicable” because the\\n\\ngovernment had failed to show that he would “suffer no harm” were his ACCA-enhanced\\n\\nsentence allowed to stand. He argued that “leaving [his] ACCA sentence in place\\n\\n[would] carry collateral consequences” by subjecting him to the possibility of a greater\\n\\nsentence for violating the terms of his supervised release. Specifically, he explained that\\n\\nbecause he was sentenced for his firearm conviction under ACCA, the conviction is\\n\\nclassified as a Class A felony, rather than as a Class C felony, and should his supervised\\n\\nrelease be revoked, this difference in classification could subject him to an additional 3\\n\\nyears of imprisonment for the supervised release violation. See 18 U.S.C. §§ 3559(a),\\n\\n3583(e)(3). While Charles acknowledged that he also had a concurrent 10-year term of\\n\\nsupervised release for his drug-trafficking conviction, which is a Class A felony, he\\n\\nargued that he still could “suffer potential adverse consequences from the erroneous\\n\\nclassification of his [firearm conviction] as a Class A felony, because a district court\\n\\n[would have] discretion to impose consecutive prison terms upon revoking concurrent\\n\\nterms of supervised release.” (Emphasis added). Based on this possibility, Charles\\n\\nargued that “the government cannot show that [he] [would] suffer no harm by leaving the\\n\\nunconstitutional ACCA sentence in place.”\\n\\n By an opinion and order dated September 1, 2017, the district court granted the\\n\\ngovernment’s motion to dismiss Charles’s § 2255 motion. First, the court noted that\\n\\nCharles’s challenge to his career offender status had been foreclosed by Beckles and\\n\\n 7\\n\\ftherefore that his 360-month sentence on the drug-trafficking offense was valid. And\\n\\nsecond, invoking the concurrent sentence doctrine, the court declined to decide whether\\n\\nCharles’s 360-month term of imprisonment for his firearm conviction was invalid under\\n\\nJohnson because Charles had been validly sentenced to the same term for his drug-\\n\\ntrafficking offense and the two terms of imprisonment were imposed concurrently. As\\n\\nfor Charles’s argument that he could face adverse collateral consequences should he later\\n\\ncommit a serious violation of his supervised release, the court explained that “[w]hile the\\n\\nscenario posed by [Charles] [was] technically possible, the factors that would have to line\\n\\nup to support such a result make it implausible.” It noted:\\n\\n The maximum Guidelines range for the most serious violation of\\n supervised release calls for a term of incarceration of 51 to 63 months. See\\n U.S.S.G. § 7B1.4(a). In order for that Guidelines range to apply, [Charles]\\n would have to commit a Grade A violation while on supervised release; and\\n that Grade A violation would have to be so serious that the Court would\\n have to upwardly vary in order to impose a sentence of more than 84\\n months, i.e., an upward variance of at least one-third over the top of the\\n recommended Guidelines range.\\n\\nThe court concluded that “[s]uch a hypothetical scenario is simply too speculative to be\\n\\nconsidered a realistic potential adverse collateral consequence requiring review of\\n\\n[Charles’s] sentence on [the firearm conviction].” It accordingly denied Charles’s § 2255\\n\\nmotion and granted the government’s motion to dismiss it, but it also issued a certificate\\n\\nof appealability with respect to the sentence on Charles’s firearm offense.\\n\\n\\n II\\n\\n When sentenced, Charles was given a sentence of 360 months’ imprisonment and\\n\\n10 years of supervised release on his drug-trafficking offense and a concurrent sentence\\n\\n 8\\n\\fof 360 months’ imprisonment and 3 years of supervised release on his firearm offense.\\n\\nRelying on Johnson, he challenged the length of his firearm sentence. The district court\\n\\ndeclined to address his challenge because the sentence for his drug-trafficking offense\\n\\nwas valid and, under the concurrent sentence doctrine, it need not address the claimed\\n\\nerror in the concurring sentence, as any error was harmless.\\n\\n Charles contends that the district court erred in taking that position, arguing that he\\n\\ncould be adversely affected by his invalid firearm sentence. He hypothesizes that after he\\n\\nserves his 360-month sentence, he could commit a serious violation of his supervised\\n\\nrelease, thereby implicating the supervised release on two Class A convictions, and that\\n\\nthe court could then stack the two maximum 5-year revocation sentences by having them\\n\\nrun consecutively, for a total term of 10 years. By contrast, if the sentence for his firearm\\n\\nconviction were corrected, as he argues it should be, the conviction would be reduced\\n\\nfrom a Class A to a Class C felony, see 18 U.S.C. § 3559(a), and the maximum sentence\\n\\nfor violating the terms of supervised release on the conviction would then be 2 years, see\\n\\nid. § 3583(e)(3). Thus, even if the court were to stack the sentences, he could receive at\\n\\nmost 5 years for violating the supervised release on his Class A felony (drug trafficking)\\n\\nand only 2 years for his firearm sentence (a Class C felony), for a total of 7 years. The 7\\n\\nyears would thus be 3 years less than the 10 years that would be possible if his firearm\\n\\noffense were not reviewed.\\n\\n Agreeing with the government, the district court concluded that the harm that\\n\\nCharles posited was too speculative and remote to undermine the proper harmlessness\\n\\nanalysis. It said, “[s]uch a hypothetical scenario is simply too speculative to be\\n\\n 9\\n\\fconsidered a realistic potential adverse collateral consequence requiring review of\\n\\n[Charles’s] sentence on [his firearm conviction].”\\n\\n The issue before us thus turns on the proper understanding of the concurrent\\n\\nsentence doctrine and whether, in the circumstances of this case, it allowed the court to\\n\\nleave unreviewed Charles’s challenge to his firearm sentence.\\n\\n At the outset, we note that the concurrent sentence doctrine rests on the same\\n\\nrationale underlying harmless-error review — namely, the recognition that to help\\n\\npromote the overall functioning of our justice system, courts should “conserve judicial\\n\\nresources by . . . cleans[ing] the judicial process of prejudicial error without becoming\\n\\nmired in harmless error.” United States v. Hasting, 461 U.S. 499, 501 (1983) (citation\\n\\nomitted); see also Benton v. Maryland, 395 U.S. 784, 798–99 (1969) (White, J.,\\n\\nconcurring) (explaining that “[i]n a time of increasingly congested judicial dockets,” the\\n\\nconcurrent sentence doctrine “is not a rule of convenience to the judge, but rather of\\n\\nfairness to other litigants”).\\n\\n In United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), we\\n\\narticulated the doctrine as follows:\\n\\n The concurrent sentence rule provides that where a defendant receives\\n concurrent sentences on plural counts of an indictment and where the\\n conviction on one count is found to be good, a reviewing court need not\\n pass on the validity of the defendant’s conviction on another count. . . .\\n [T]he application of the rule has, though, been restricted to situations where\\n there is no substantial possibility that the unreviewed conviction will\\n adversely affect the defendant’s right to parole or expose him to a\\n substantial risk of adverse collateral consequences.\\n\\n\\n\\n\\n 10\\n\\fId. at 931 (emphasis added). In that case, we applied the doctrine after considering\\n\\nwhether the unreviewed conviction could affect the defendants’ eligibility for parole;\\n\\ntheir place or conditions of confinement; or their “salient factor score[s],” as would be\\n\\ndetermined by the Parole Commission. Concluding that the defendants would not suffer\\n\\nany such adverse collateral consequences, we declined to review the merits of one of the\\n\\ndefendants’ convictions. See id. at 932.\\n\\n Truong Dinh Hung has since remained the leading authority for the application of\\n\\nthe doctrine in our circuit, although our formulation has sometimes varied in our effort to\\n\\nsummarize it. In United States v. Mumford, 630 F.2d 1023 (4th Cir. 1980), we cited\\n\\nTruong Dinh Hung to rule that, because the defendant in that case “was sentenced to\\n\\nconcurrent jail terms on the first five counts of mail fraud” and because there was “no\\n\\nsubstantial possibility” that one of those convictions would “subject him to adverse\\n\\ncollateral consequences,” “under the concurrent sentence doctrine it would not be\\n\\nnecessary to review the validity of [that] conviction.” Id. at 1029 n.7. In United States v.\\n\\nWebster, 639 F.2d 174 (4th Cir. 1981), we again relied on Truong Dinh Hung, albeit with\\n\\na slightly different formulation of the doctrine. We stated in Webster that “[w]e may\\n\\nassume, for the purposes of this case, that under the ‘concurrent sentence’ doctrine, it is\\n\\npermissible to affirm the convictions without investigating whether they were for some\\n\\nreason erroneous, provided we can foresee with reasonable certainty that no adverse\\n\\ncollateral consequences will redound to the defendant.” Id. at 182–83 (emphasis added).\\n\\nIn United States v. Walker, 677 F.2d 1014 (4th Cir. 1982), we relied on Truong Dinh\\n\\nHung again to articulate the doctrine, stating that “a reviewing court need not pass upon\\n\\n 11\\n\\fthe validity of [a] defendant’s conviction for additional counts once it has affirmed his\\n\\nconviction on one count, but only if ‘there is no substantial possibility that the\\n\\nunreviewed conviction will adversely affect the defendant’s right to parole or expose him\\n\\nto a substantial risk of adverse collateral consequences.’” Id. at 1015 (emphasis added).\\n\\nAnd in United States v. Hill, 859 F.2d 325 (4th Cir. 1988), we relied on Truong Dinh\\n\\nHung to summarize the doctrine, yet more briefly, stating that it provides “that where a\\n\\ndefendant is serving concurrent sentences and one conviction is shown to be valid, the\\n\\ncourt may decline to pass upon the validity of the other conviction. It requires a showing\\n\\nthat the defendant will suffer no harm by letting both the valid and unreviewed\\n\\nconvictions stand.” Id. at 326. In short, while some of our language differs, none of our\\n\\ncases indicate that one formulation is wrong or even distinct from any other.\\n\\n Charles focuses on the different language used in Truong Dinh Hung and Webster\\n\\nto claim that we should limit application of the rule to those cases in which a court “can\\n\\nforesee with reasonable certainty” that there will be no adverse collateral consequences,\\n\\nas was articulated in Webster, 639 F.2d at 183. But when Webster’s formulation is\\n\\nrightly analyzed as a summary of Truong Dinh Hung’s, there is no meaningful difference\\n\\nbetween the two, and Charles’s entreaty provides him with no meaningful help.\\n\\n In an effort to describe the proper degree of certainty that harm will not result\\n\\nfrom an unreviewed sentence or conviction, we stated in Truong Dinh Hung that there\\n\\nmust be “no substantial possibility” of harm. And in Webster, we stated that there must\\n\\nbe a “reasonable certainty” of no harm. Each articulation of the standard is designed to\\n\\nlimit by a measure the requirement of “no possibility” or absolute “certainty.” Thus, “no\\n\\n 12\\n\\fpossibility” is limited to “no substantial possibility,” and absolute “certainty” of no harm\\n\\nis limited to “reasonable certainty” of no harm. The message conveyed by both\\n\\nformulations is that when we consider future events, there must always be some\\n\\ncircumspection that eliminates from the forward-looking analysis unrealistic speculation\\n\\nof adverse collateral consequences. See Eason v. United States, 912 F.3d 1122, 1124 (8th\\n\\nCir. 2019) (recognizing that if “highly speculative adverse collateral consequences” were\\n\\nto bar courts from applying the concurrent sentence doctrine, there would be nothing left\\n\\nto “this useful rule” (cleaned up)). Thus, when determining the potential consequences of\\n\\nleaving a sentence unreviewed, we must not engage in unrealistic speculation about the\\n\\npossibility of future harm.\\n\\n In view of intervening Supreme Court decisions, however, we must recognize an\\n\\nadditional limitation to the concurrent sentence doctrine. Because 18 U.S.C. § 3013\\n\\nimposes a special monetary assessment for each count of conviction, the Court has held\\n\\nthat the concurrent sentence doctrine cannot be applied to avoid reaching a defendant’s\\n\\nchallenge to one of his federal convictions, reasoning that the additional punishment of\\n\\nthe assessment means that the sentences are not truly concurrent. See Ray v. United\\n\\nStates, 481 U.S. 736, 737 (1987) (per curiam). Moreover, even beyond the existence of a\\n\\nspecial assessment for each of multiple convictions, the Court has indicated that there are\\n\\nother collateral consequences attaching to unreviewed convictions that limit the\\n\\napplicability of the concurrent sentence doctrine. In Rutledge v. United States, 517 U.S.\\n\\n292 (1996), the Court noted:\\n\\n\\n\\n 13\\n\\f The separate conviction, apart from the concurrent sentence, has potential\\n adverse collateral consequences that may not be ignored. For example, the\\n presence of two convictions on the record may delay the defendant’s\\n eligibility for parole or result in an increased sentence under a recidivist\\n statute for a future offense. Moreover, the second conviction may be used\\n to impeach the defendant’s credibility and certainly carries the societal\\n stigma accompanying any criminal conviction.\\n\\nId. at 302 (cleaned up).\\n\\n Yet, while the concurrent sentence doctrine cannot be applied to avoid reviewing\\n\\nthe validity of one of a defendant’s convictions, the doctrine still has continuing force as a\\n\\nspecies of harmless-error review where a defendant seeks to challenge the legality of a\\n\\nsentence that was imposed for a valid conviction, but where the challenged sentence runs\\n\\nconcurrently with a valid sentence of an equal or greater duration. See, e.g., Eason, 912\\n\\nF.3d at 1123; In re Williams, 826 F.3d 1351, 1356–57 (11th Cir. 2016); United States v.\\n\\nHarris, 695 F.3d 1125, 1139 (10th Cir. 2012); United States v. Pierre, 484 F.3d 75, 88,\\n\\n90–91 (1st Cir. 2007).\\n\\n In this case, Charles’s conviction and 360-month sentence for drug trafficking is\\n\\nvalid, and he does not suggest otherwise on appeal. Rather, he challenges his concurrent\\n\\n360-month sentence — not his conviction — for illegally possessing a firearm. Thus,\\n\\ngiven Charles’s drug-trafficking sentence, his challenge to his firearm sentence can have\\n\\nno effect on his total term of imprisonment. Likewise, he would still face 10 years of\\n\\nsupervised release imposed as part of his drug-trafficking sentence, which is longer than\\n\\nthe 3-year term of supervised release that was imposed for his firearm conviction.\\n\\n Charles argues nonetheless that under an extremely unrealistic hypothetical he has\\n\\nposited, he could be adversely affected if his firearm sentence were not reviewed and\\n\\n 14\\n\\fcorrected. Specifically, he describes a situation where, after serving a 30-year term of\\n\\nimprisonment and being released from prison when he is nearly 60 years old, he would\\n\\ncommit a violation of his supervised release within the first three years of his release —\\n\\nthe period during which he would be serving two concurrent terms of supervised release\\n\\non the two sentences. Moreover, his violation of his supervised release would have to be\\n\\nso serious that the district court would not be satisfied with the Guidelines’ recommended\\n\\nsentence of 51 to 63 months’ imprisonment for the most serious grade violation, see\\n\\nU.S.S.G. § 7B1.4(a), but would decide that it needed to vary upward to impose a total\\n\\nrevocation sentence that was greater than 84 months’ imprisonment, which it could only\\n\\nachieve by stacking near-maximum revocation sentences by imposing them\\n\\nconsecutively. By contrast, were Charles to succeed in reducing his firearm sentence, 84\\n\\nmonths’ imprisonment would be the statutory maximum that he could face for a violation\\n\\nof his supervised release. In short, Charles argues that he is exposed to the risk of serving\\n\\nup to 120 months’ imprisonment — two 60-month sentences stacked consecutively — for\\n\\na future violation of his supervised release, which would be 36 months more than if his\\n\\nfirearm sentence were reviewed and reduced.\\n\\n Such a hypothetical scenario, however, is highly speculative and unrealistic. It\\n\\nwould require: (1) that Charles commit a violation of his supervised release; (2) that his\\n\\nviolation occur in the 3-year window after his release from prison when he would be\\n\\nserving both release terms; (3) that his violation be extraordinarily serious; (4) that the\\n\\ncourt find the Guidelines’ recommendation of 51 to 63 months’ imprisonment for the\\n\\nmost serious violation to be insufficient to punish the violation; and (5) that the court find\\n\\n 15\\n\\fit necessary to issue a variance sentence that would be at least 22 months longer than the\\n\\nhighest recommended sentence to reach a sentence in excess of 84 months’\\n\\nimprisonment. Not only is the prospect of all of this happening remote, but, most\\n\\nsignificantly, Charles’s hypothetical could only arise if he were to choose to violate the\\n\\nterms of his supervised release. Thus, his posited adverse effect would be entirely within\\n\\nhis ability to avoid. As the Eighth Circuit recently stated in identical circumstances,\\n\\n“[The hypothetical] could not occur unless [the defendant] chooses to commit serious\\n\\nviolations of law during his future term of supervised release. Thus, the adverse\\n\\nconsequences are entirely within [his] control to avoid. Literal application of such\\n\\nspeculative consequences, resting upon a supposition of [the defendant’s] continued\\n\\ncriminality, would effectively bar the application of the concurrent sentence rule.”\\n\\nEason, 912 F.3d at 1124 (cleaned up).\\n\\n In short, we conclude that in the circumstances presented to the district court, it\\n\\ndid not abuse its discretion by applying the concurrent sentence doctrine and declining to\\n\\nreview Charles’s sentence for illegal possession of a firearm.\\n\\n\\n III\\n\\n Following the parties’ briefing on appeal, however, Congress enacted the First\\n\\nStep Act of 2018, which, among other things, allows district courts to apply the Fair\\n\\nSentencing Act of 2010 retroactively to sentences for certain crimes committed before\\n\\nAugust 3, 2010. The Fair Sentencing Act reduced the disparity between sentences for\\n\\ncrack cocaine offenses and powder cocaine offenses. In a letter to this court, Charles\\n\\n\\n 16\\n\\fnoted this development and argued that, as a result, he will suffer a new collateral\\n\\nconsequence if we do not review his firearm sentence because leaving that sentence\\n\\nunreviewed will effectively deny him the benefit of the First Step Act. As he reasons,\\n\\neven if he were granted a reduction of his drug-trafficking sentence under the First Step\\n\\nAct, such a reduction would be meaningless because his firearm sentence of 360 months’\\n\\nimprisonment would remain in place, unreviewed.\\n\\n The government contends that Charles is not eligible for a reduction of his drug-\\n\\ntrafficking sentence under the First Step Act and therefore that its enactment “does not\\n\\nundercut the district court’s conclusion that no realistic consequence would flow from its\\n\\ndecision not to review” Charles’s firearm sentence.\\n\\n We conclude that because the impact of the First Step Act was not considered by\\n\\nthe district court, as the Act was enacted after the court ruled, the better course is to\\n\\nremand this case to the district court for it to consider the effect of the Act in the first\\n\\ninstance. Should the district court conclude that Charles is eligible for a reduction of his\\n\\ndrug-trafficking sentence under the Act and further that such a reduction would be\\n\\nwarranted, this remand will enable the court to consider the merits of Charles’s § 2255\\n\\nmotion challenging his firearm sentence. Cf. Benton, 395 U.S. at 793 (recognizing, in a\\n\\ncase in which the defendant had been sentenced to 15 years for burglary and a concurrent\\n\\nsentence of 5 years for larceny, that “should the length of the burglary sentence be\\n\\nreduced to less than five years,” the defendant “would then clearly have a right to have\\n\\nhis larceny conviction reviewed”). If, on the other hand, the court were to decide not to\\n\\nreduce Charles’s sentence for his drug-trafficking offense under the First Step Act, it\\n\\n 17\\n\\fcould then rely on the concurrent sentence doctrine — as it previously applied the\\n\\ndoctrine and as we affirm here — to dismiss Charles’s § 2255 motion.\\n\\n AFFIRMED AND REMANDED\\n\\n\\n\\n\\n 18\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4420627/\", \"author_raw\": \"NIEMEYER, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"WILKINSON"},"judge2":{"kind":"string","value":"NIEMEYER"},"judge3":{"kind":"string","value":"DUNCAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4643374/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Roger Dale CHARLES, II, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-07-26\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-7416\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nROGER DALE CHARLES, II,\n\n Defendant - Appellant.\n\n\nAppeal from the United States District Court for the Western District of North Carolina,\nat Bryson City. Martin K. Reidinger, District Judge. (2:04-cr-00027-MR-DLH-1; 1:16-\ncv-00136-MR)\n\n\nArgued: May 7, 2019 Decided: July 26, 2019\n\n\nBefore WILKINSON and NIEMEYER, Circuit Judges, and DUNCAN, Senior Circuit\nJudge.\n\n\nAffirmed and remanded by published opinion. Judge Niemeyer wrote the opinion, in\nwhich Judge Wilkinson and Senior Judge Duncan joined.\n\n\nARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH\nCAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright,\nOFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for\nAppellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL\nDEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina,\nfor Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED\n\fSTATES ATTORNEY, Charlotte, North Carolina, for Appellee.\n\n\n\n\n 2\n\fNIEMEYER, Circuit Judge:\n\n The “concurrent sentence doctrine” authorizes a court to leave the validity of one\n\nconcurrent sentence unreviewed when another is valid and carries the same or greater\n\nduration of punishment so long as there is no substantial possibility that the unreviewed\n\nsentence will adversely affect the defendant or, stated otherwise, so long as it can be\n\nforeseen with reasonable certainty that the defendant will suffer no adverse collateral\n\nconsequences by leaving it unreviewed. In this case, we find that this standard is\n\nsatisfied when the only potential harm to the defendant is grounded on unrealistic\n\nspeculation.\n\n In 2005, Roger Charles, II, was convicted of possession of more than 50 grams of\n\ncocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and\n\npossession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). On his drug-\n\ntrafficking offense, he was sentenced to 360 months’ imprisonment and 10 years of\n\nsupervised release, and on his firearm offense he was sentenced to 360 months’\n\nimprisonment and 3 years of supervised release, with the two sentences to be served\n\nconcurrently. Both sentences were enhanced by prior felony convictions. On the drug-\n\ntrafficking offense, the prior convictions served as the basis for finding Charles to be a\n\ncareer offender under U.S.S.G. § 4B1.1(a), and on the firearm offense, they served as a\n\nbasis for finding Charles to be an armed career criminal under 18 U.S.C. § 924(e) (the\n\nArmed Career Criminal Act (“ACCA”)).\n\n Ten years later, after the Supreme Court handed down its decision in Johnson v.\n\nUnited States, 135 S. Ct. 2551 (2015), which narrowed the category of offenses that can\n\n 3\n\fbe used to enhance sentences under ACCA, Charles filed a motion under 28 U.S.C.\n\n§ 2255 to reduce the sentences for both of his convictions. The district court found\n\nCharles’s sentence for drug trafficking to be valid and declined to review the sentence for\n\nhis firearm conviction, applying the concurrent sentence doctrine. The court concluded\n\nthat leaving the firearm sentence unreviewed would cause Charles no “realistic potential\n\nadverse collateral consequence.”\n\n On appeal, Charles contends that the district court erred in applying the concurrent\n\nsentence doctrine because he would indeed be exposed to the possibility of a collateral\n\nconsequence if his firearm sentence were not reviewed and reduced. Because the\n\ncollateral consequence posited by Charles rests on unrealistic speculation, however, we\n\naffirm the district court’s application of the concurrent sentence doctrine in the\n\ncircumstances presented to it.\n\n Nonetheless, after the parties filed their briefs in this appeal, Congress enacted the\n\nFirst Step Act of 2018, and Charles now claims that leaving his firearm sentence\n\nunreviewed will also have the consequence of denying him relief under that Act. Given\n\nthis development, we remand to allow the district court, in the first instance, to consider\n\nCharles’s argument that he is eligible for a reduction of his drug-trafficking sentence\n\nunder the First Step Act.\n\n\n I\n\n After Charles was convicted of drug trafficking and the illegal possession of a\n\nfirearm, the Probation Officer prepared a presentence report finding that Charles was a\n\n\n 4\n\fcareer offender under U.S.S.G. § 4B1.1(a) and, for purposes of sentencing on the firearm\n\nconviction, an armed career criminal under ACCA, 18 U.S.C. § 924(e). The report based\n\nthese findings on Charles’s prior Florida felony convictions for (1) battery of a law\n\nenforcement officer, (2) armed burglary with a deadly weapon, (3) escape, and\n\n(4) resisting an officer with violence. As a career offender, the presentence report\n\nconcluded that Charles was subject to an advisory sentencing range of 360 months’ to life\n\nimprisonment. And as an armed career criminal, Charles was subject to a mandatory\n\nminimum sentence for his firearm conviction of 15 years’ imprisonment and a maximum\n\nof life imprisonment, see 18 U.S.C. § 924(e)(1), which was an enhancement of what\n\nwould otherwise have been a maximum sentence of 10 years’ imprisonment, see id.\n\n§ 924(a)(2).\n\n The district court adopted the presentence report and classified Charles as both a\n\ncareer offender and an armed career criminal. It then sentenced him to 360 months’\n\nimprisonment and 10 years of supervised release on the drug-trafficking offense and 360\n\nmonths’ imprisonment and 3 years of supervised release on the firearm offense, with both\n\nsentences to run concurrently.\n\n Charles’s convictions and sentences were affirmed on direct appeal. See United\n\nStates v. Charles, 195 F. App’x 133 (4th Cir. 2006) (per curiam).\n\n Ten years later, in May 2016, Charles filed a motion under 28 U.S.C. § 2255 to\n\nvacate his sentences based on the Supreme Court’s decision in Johnson, 135 S. Ct. at\n\n2563, which held that the “residual clause” used to define a sentence-enhancing “violent\n\nfelony” in ACCA was impermissibly vague and therefore that “imposing an increased\n\n 5\n\fsentence under [ACCA’s] residual clause . . . violate[d] the Constitution’s guarantee of\n\ndue process,” and Welch v. United States, 136 S. Ct. 1257, 1265 (2016), which made\n\nJohnson retroactively applicable to cases on collateral review. In his § 2255 motion,\n\nCharles argued that because three of his four prior convictions qualified as predicate\n\nconvictions only under ACCA’s residual clause, they were illegally used to enhance his\n\nfirearm sentence. And by the force of Johnson’s reasoning, he also argued that those\n\nsame offenses could not be used to designate him as a career offender under the\n\nSentencing Guidelines for purposes of enhancing his sentence for drug trafficking.\n\n The district court placed Charles’s § 2255 motion in abeyance pending the\n\nSupreme Court’s decision in Beckles v. United States, which ultimately held that “the\n\nadvisory Guidelines are not subject to vagueness challenges under the Due Process\n\nClause,” 137 S. Ct. 886, 890 (2017).\n\n Based on Beckles, the government filed a motion to dismiss Charles’s § 2255\n\nmotion. It noted first that after Beckles, it was clear that Charles’s challenge to his\n\ncareer-offender designation had no merit and that his 360-month sentence on the drug-\n\ntrafficking offense was therefore valid. Second, it argued with regard to his firearm\n\nsentence that even if Charles had been improperly classified as an armed career criminal\n\nunder ACCA, the court need not address Charles’s challenge to that sentence because\n\nCharles would still have to serve the valid 360-month sentence on his drug-trafficking\n\nconviction and a decision not to review the ACCA enhancement on his firearm\n\nconviction would have no adverse collateral consequence.\n\n\n\n 6\n\f In response to the government’s motion, Charles contended that he had been\n\n“sentenced to an unconstitutional, over-the-maximum sentence for his [firearm]\n\nconviction” and that “[t]he concurrent sentence doctrine [was] inapplicable” because the\n\ngovernment had failed to show that he would “suffer no harm” were his ACCA-enhanced\n\nsentence allowed to stand. He argued that “leaving [his] ACCA sentence in place\n\n[would] carry collateral consequences” by subjecting him to the possibility of a greater\n\nsentence for violating the terms of his supervised release. Specifically, he explained that\n\nbecause he was sentenced for his firearm conviction under ACCA, the conviction is\n\nclassified as a Class A felony, rather than as a Class C felony, and should his supervised\n\nrelease be revoked, this difference in classification could subject him to an additional 3\n\nyears of imprisonment for the supervised release violation. See 18 U.S.C. §§ 3559(a),\n\n3583(e)(3). While Charles acknowledged that he also had a concurrent 10-year term of\n\nsupervised release for his drug-trafficking conviction, which is a Class A felony, he\n\nargued that he still could “suffer potential adverse consequences from the erroneous\n\nclassification of his [firearm conviction] as a Class A felony, because a district court\n\n[would have] discretion to impose consecutive prison terms upon revoking concurrent\n\nterms of supervised release.” (Emphasis added). Based on this possibility, Charles\n\nargued that “the government cannot show that [he] [would] suffer no harm by leaving the\n\nunconstitutional ACCA sentence in place.”\n\n By an opinion and order dated September 1, 2017, the district court granted the\n\ngovernment’s motion to dismiss Charles’s § 2255 motion. First, the court noted that\n\nCharles’s challenge to his career offender status had been foreclosed by Beckles and\n\n 7\n\ftherefore that his 360-month sentence on the drug-trafficking offense was valid. And\n\nsecond, invoking the concurrent sentence doctrine, the court declined to decide whether\n\nCharles’s 360-month term of imprisonment for his firearm conviction was invalid under\n\nJohnson because Charles had been validly sentenced to the same term for his drug-\n\ntrafficking offense and the two terms of imprisonment were imposed concurrently. As\n\nfor Charles’s argument that he could face adverse collateral consequences should he later\n\ncommit a serious violation of his supervised release, the court explained that “[w]hile the\n\nscenario posed by [Charles] [was] technically possible, the factors that would have to line\n\nup to support such a result make it implausible.” It noted:\n\n The maximum Guidelines range for the most serious violation of\n supervised release calls for a term of incarceration of 51 to 63 months. See\n U.S.S.G. § 7B1.4(a). In order for that Guidelines range to apply, [Charles]\n would have to commit a Grade A violation while on supervised release; and\n that Grade A violation would have to be so serious that the Court would\n have to upwardly vary in order to impose a sentence of more than 84\n months, i.e., an upward variance of at least one-third over the top of the\n recommended Guidelines range.\n\nThe court concluded that “[s]uch a hypothetical scenario is simply too speculative to be\n\nconsidered a realistic potential adverse collateral consequence requiring review of\n\n[Charles’s] sentence on [the firearm conviction].” It accordingly denied Charles’s § 2255\n\nmotion and granted the government’s motion to dismiss it, but it also issued a certificate\n\nof appealability with respect to the sentence on Charles’s firearm offense.\n\n\n II\n\n When sentenced, Charles was given a sentence of 360 months’ imprisonment and\n\n10 years of supervised release on his drug-trafficking offense and a concurrent sentence\n\n 8\n\fof 360 months’ imprisonment and 3 years of supervised release on his firearm offense.\n\nRelying on Johnson, he challenged the length of his firearm sentence. The district court\n\ndeclined to address his challenge because the sentence for his drug-trafficking offense\n\nwas valid and, under the concurrent sentence doctrine, it need not address the claimed\n\nerror in the concurring sentence, as any error was harmless.\n\n Charles contends that the district court erred in taking that position, arguing that he\n\ncould be adversely affected by his invalid firearm sentence. He hypothesizes that after he\n\nserves his 360-month sentence, he could commit a serious violation of his supervised\n\nrelease, thereby implicating the supervised release on two Class A convictions, and that\n\nthe court could then stack the two maximum 5-year revocation sentences by having them\n\nrun consecutively, for a total term of 10 years. By contrast, if the sentence for his firearm\n\nconviction were corrected, as he argues it should be, the conviction would be reduced\n\nfrom a Class A to a Class C felony, see 18 U.S.C. § 3559(a), and the maximum sentence\n\nfor violating the terms of supervised release on the conviction would then be 2 years, see\n\nid. § 3583(e)(3). Thus, even if the court were to stack the sentences, he could receive at\n\nmost 5 years for violating the supervised release on his Class A felony (drug trafficking)\n\nand only 2 years for his firearm sentence (a Class C felony), for a total of 7 years. The 7\n\nyears would thus be 3 years less than the 10 years that would be possible if his firearm\n\noffense were not reviewed.\n\n Agreeing with the government, the district court concluded that the harm that\n\nCharles posited was too speculative and remote to undermine the proper harmlessness\n\nanalysis. It said, “[s]uch a hypothetical scenario is simply too speculative to be\n\n 9\n\fconsidered a realistic potential adverse collateral consequence requiring review of\n\n[Charles’s] sentence on [his firearm conviction].”\n\n The issue before us thus turns on the proper understanding of the concurrent\n\nsentence doctrine and whether, in the circumstances of this case, it allowed the court to\n\nleave unreviewed Charles’s challenge to his firearm sentence.\n\n At the outset, we note that the concurrent sentence doctrine rests on the same\n\nrationale underlying harmless-error review — namely, the recognition that to help\n\npromote the overall functioning of our justice system, courts should “conserve judicial\n\nresources by . . . cleans[ing] the judicial process of prejudicial error without becoming\n\nmired in harmless error.” United States v. Hasting, 461 U.S. 499, 501 (1983) (citation\n\nomitted); see also Benton v. Maryland, 395 U.S. 784, 798–99 (1969) (White, J.,\n\nconcurring) (explaining that “[i]n a time of increasingly congested judicial dockets,” the\n\nconcurrent sentence doctrine “is not a rule of convenience to the judge, but rather of\n\nfairness to other litigants”).\n\n In United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), we\n\narticulated the doctrine as follows:\n\n The concurrent sentence rule provides that where a defendant receives\n concurrent sentences on plural counts of an indictment and where the\n conviction on one count is found to be good, a reviewing court need not\n pass on the validity of the defendant’s conviction on another count. . . .\n [T]he application of the rule has, though, been restricted to situations where\n there is no substantial possibility that the unreviewed conviction will\n adversely affect the defendant’s right to parole or expose him to a\n substantial risk of adverse collateral consequences.\n\n\n\n\n 10\n\fId. at 931 (emphasis added). In that case, we applied the doctrine after considering\n\nwhether the unreviewed conviction could affect the defendants’ eligibility for parole;\n\ntheir place or conditions of confinement; or their “salient factor score[s],” as would be\n\ndetermined by the Parole Commission. Concluding that the defendants would not suffer\n\nany such adverse collateral consequences, we declined to review the merits of one of the\n\ndefendants’ convictions. See id. at 932.\n\n Truong Dinh Hung has since remained the leading authority for the application of\n\nthe doctrine in our circuit, although our formulation has sometimes varied in our effort to\n\nsummarize it. In United States v. Mumford, 630 F.2d 1023 (4th Cir. 1980), we cited\n\nTruong Dinh Hung to rule that, because the defendant in that case “was sentenced to\n\nconcurrent jail terms on the first five counts of mail fraud” and because there was “no\n\nsubstantial possibility” that one of those convictions would “subject him to adverse\n\ncollateral consequences,” “under the concurrent sentence doctrine it would not be\n\nnecessary to review the validity of [that] conviction.” Id. at 1029 n.7. In United States v.\n\nWebster, 639 F.2d 174 (4th Cir. 1981), we again relied on Truong Dinh Hung, albeit with\n\na slightly different formulation of the doctrine. We stated in Webster that “[w]e may\n\nassume, for the purposes of this case, that under the ‘concurrent sentence’ doctrine, it is\n\npermissible to affirm the convictions without investigating whether they were for some\n\nreason erroneous, provided we can foresee with reasonable certainty that no adverse\n\ncollateral consequences will redound to the defendant.” Id. at 182–83 (emphasis added).\n\nIn United States v. Walker, 677 F.2d 1014 (4th Cir. 1982), we relied on Truong Dinh\n\nHung again to articulate the doctrine, stating that “a reviewing court need not pass upon\n\n 11\n\fthe validity of [a] defendant’s conviction for additional counts once it has affirmed his\n\nconviction on one count, but only if ‘there is no substantial possibility that the\n\nunreviewed conviction will adversely affect the defendant’s right to parole or expose him\n\nto a substantial risk of adverse collateral consequences.’” Id. at 1015 (emphasis added).\n\nAnd in United States v. Hill, 859 F.2d 325 (4th Cir. 1988), we relied on Truong Dinh\n\nHung to summarize the doctrine, yet more briefly, stating that it provides “that where a\n\ndefendant is serving concurrent sentences and one conviction is shown to be valid, the\n\ncourt may decline to pass upon the validity of the other conviction. It requires a showing\n\nthat the defendant will suffer no harm by letting both the valid and unreviewed\n\nconvictions stand.” Id. at 326. In short, while some of our language differs, none of our\n\ncases indicate that one formulation is wrong or even distinct from any other.\n\n Charles focuses on the different language used in Truong Dinh Hung and Webster\n\nto claim that we should limit application of the rule to those cases in which a court “can\n\nforesee with reasonable certainty” that there will be no adverse collateral consequences,\n\nas was articulated in Webster, 639 F.2d at 183. But when Webster’s formulation is\n\nrightly analyzed as a summary of Truong Dinh Hung’s, there is no meaningful difference\n\nbetween the two, and Charles’s entreaty provides him with no meaningful help.\n\n In an effort to describe the proper degree of certainty that harm will not result\n\nfrom an unreviewed sentence or conviction, we stated in Truong Dinh Hung that there\n\nmust be “no substantial possibility” of harm. And in Webster, we stated that there must\n\nbe a “reasonable certainty” of no harm. Each articulation of the standard is designed to\n\nlimit by a measure the requirement of “no possibility” or absolute “certainty.” Thus, “no\n\n 12\n\fpossibility” is limited to “no substantial possibility,” and absolute “certainty” of no harm\n\nis limited to “reasonable certainty” of no harm. The message conveyed by both\n\nformulations is that when we consider future events, there must always be some\n\ncircumspection that eliminates from the forward-looking analysis unrealistic speculation\n\nof adverse collateral consequences. See Eason v. United States, 912 F.3d 1122, 1124 (8th\n\nCir. 2019) (recognizing that if “highly speculative adverse collateral consequences” were\n\nto bar courts from applying the concurrent sentence doctrine, there would be nothing left\n\nto “this useful rule” (cleaned up)). Thus, when determining the potential consequences of\n\nleaving a sentence unreviewed, we must not engage in unrealistic speculation about the\n\npossibility of future harm.\n\n In view of intervening Supreme Court decisions, however, we must recognize an\n\nadditional limitation to the concurrent sentence doctrine. Because 18 U.S.C. § 3013\n\nimposes a special monetary assessment for each count of conviction, the Court has held\n\nthat the concurrent sentence doctrine cannot be applied to avoid reaching a defendant’s\n\nchallenge to one of his federal convictions, reasoning that the additional punishment of\n\nthe assessment means that the sentences are not truly concurrent. See Ray v. United\n\nStates, 481 U.S. 736, 737 (1987) (per curiam). Moreover, even beyond the existence of a\n\nspecial assessment for each of multiple convictions, the Court has indicated that there are\n\nother collateral consequences attaching to unreviewed convictions that limit the\n\napplicability of the concurrent sentence doctrine. In Rutledge v. United States, 517 U.S.\n\n292 (1996), the Court noted:\n\n\n\n 13\n\f The separate conviction, apart from the concurrent sentence, has potential\n adverse collateral consequences that may not be ignored. For example, the\n presence of two convictions on the record may delay the defendant’s\n eligibility for parole or result in an increased sentence under a recidivist\n statute for a future offense. Moreover, the second conviction may be used\n to impeach the defendant’s credibility and certainly carries the societal\n stigma accompanying any criminal conviction.\n\nId. at 302 (cleaned up).\n\n Yet, while the concurrent sentence doctrine cannot be applied to avoid reviewing\n\nthe validity of one of a defendant’s convictions, the doctrine still has continuing force as a\n\nspecies of harmless-error review where a defendant seeks to challenge the legality of a\n\nsentence that was imposed for a valid conviction, but where the challenged sentence runs\n\nconcurrently with a valid sentence of an equal or greater duration. See, e.g., Eason, 912\n\nF.3d at 1123; In re Williams, 826 F.3d 1351, 1356–57 (11th Cir. 2016); United States v.\n\nHarris, 695 F.3d 1125, 1139 (10th Cir. 2012); United States v. Pierre, 484 F.3d 75, 88,\n\n90–91 (1st Cir. 2007).\n\n In this case, Charles’s conviction and 360-month sentence for drug trafficking is\n\nvalid, and he does not suggest otherwise on appeal. Rather, he challenges his concurrent\n\n360-month sentence — not his conviction — for illegally possessing a firearm. Thus,\n\ngiven Charles’s drug-trafficking sentence, his challenge to his firearm sentence can have\n\nno effect on his total term of imprisonment. Likewise, he would still face 10 years of\n\nsupervised release imposed as part of his drug-trafficking sentence, which is longer than\n\nthe 3-year term of supervised release that was imposed for his firearm conviction.\n\n Charles argues nonetheless that under an extremely unrealistic hypothetical he has\n\nposited, he could be adversely affected if his firearm sentence were not reviewed and\n\n 14\n\fcorrected. Specifically, he describes a situation where, after serving a 30-year term of\n\nimprisonment and being released from prison when he is nearly 60 years old, he would\n\ncommit a violation of his supervised release within the first three years of his release —\n\nthe period during which he would be serving two concurrent terms of supervised release\n\non the two sentences. Moreover, his violation of his supervised release would have to be\n\nso serious that the district court would not be satisfied with the Guidelines’ recommended\n\nsentence of 51 to 63 months’ imprisonment for the most serious grade violation, see\n\nU.S.S.G. § 7B1.4(a), but would decide that it needed to vary upward to impose a total\n\nrevocation sentence that was greater than 84 months’ imprisonment, which it could only\n\nachieve by stacking near-maximum revocation sentences by imposing them\n\nconsecutively. By contrast, were Charles to succeed in reducing his firearm sentence, 84\n\nmonths’ imprisonment would be the statutory maximum that he could face for a violation\n\nof his supervised release. In short, Charles argues that he is exposed to the risk of serving\n\nup to 120 months’ imprisonment — two 60-month sentences stacked consecutively — for\n\na future violation of his supervised release, which would be 36 months more than if his\n\nfirearm sentence were reviewed and reduced.\n\n Such a hypothetical scenario, however, is highly speculative and unrealistic. It\n\nwould require: (1) that Charles commit a violation of his supervised release; (2) that his\n\nviolation occur in the 3-year window after his release from prison when he would be\n\nserving both release terms; (3) that his violation be extraordinarily serious; (4) that the\n\ncourt find the Guidelines’ recommendation of 51 to 63 months’ imprisonment for the\n\nmost serious violation to be insufficient to punish the violation; and (5) that the court find\n\n 15\n\fit necessary to issue a variance sentence that would be at least 22 months longer than the\n\nhighest recommended sentence to reach a sentence in excess of 84 months’\n\nimprisonment. Not only is the prospect of all of this happening remote, but, most\n\nsignificantly, Charles’s hypothetical could only arise if he were to choose to violate the\n\nterms of his supervised release. Thus, his posited adverse effect would be entirely within\n\nhis ability to avoid. As the Eighth Circuit recently stated in identical circumstances,\n\n“[The hypothetical] could not occur unless [the defendant] chooses to commit serious\n\nviolations of law during his future term of supervised release. Thus, the adverse\n\nconsequences are entirely within [his] control to avoid. Literal application of such\n\nspeculative consequences, resting upon a supposition of [the defendant’s] continued\n\ncriminality, would effectively bar the application of the concurrent sentence rule.”\n\nEason, 912 F.3d at 1124 (cleaned up).\n\n In short, we conclude that in the circumstances presented to the district court, it\n\ndid not abuse its discretion by applying the concurrent sentence doctrine and declining to\n\nreview Charles’s sentence for illegal possession of a firearm.\n\n\n III\n\n Following the parties’ briefing on appeal, however, Congress enacted the First\n\nStep Act of 2018, which, among other things, allows district courts to apply the Fair\n\nSentencing Act of 2010 retroactively to sentences for certain crimes committed before\n\nAugust 3, 2010. The Fair Sentencing Act reduced the disparity between sentences for\n\ncrack cocaine offenses and powder cocaine offenses. In a letter to this court, Charles\n\n\n 16\n\fnoted this development and argued that, as a result, he will suffer a new collateral\n\nconsequence if we do not review his firearm sentence because leaving that sentence\n\nunreviewed will effectively deny him the benefit of the First Step Act. As he reasons,\n\neven if he were granted a reduction of his drug-trafficking sentence under the First Step\n\nAct, such a reduction would be meaningless because his firearm sentence of 360 months’\n\nimprisonment would remain in place, unreviewed.\n\n The government contends that Charles is not eligible for a reduction of his drug-\n\ntrafficking sentence under the First Step Act and therefore that its enactment “does not\n\nundercut the district court’s conclusion that no realistic consequence would flow from its\n\ndecision not to review” Charles’s firearm sentence.\n\n We conclude that because the impact of the First Step Act was not considered by\n\nthe district court, as the Act was enacted after the court ruled, the better course is to\n\nremand this case to the district court for it to consider the effect of the Act in the first\n\ninstance. Should the district court conclude that Charles is eligible for a reduction of his\n\ndrug-trafficking sentence under the Act and further that such a reduction would be\n\nwarranted, this remand will enable the court to consider the merits of Charles’s § 2255\n\nmotion challenging his firearm sentence. Cf. Benton, 395 U.S. at 793 (recognizing, in a\n\ncase in which the defendant had been sentenced to 15 years for burglary and a concurrent\n\nsentence of 5 years for larceny, that “should the length of the burglary sentence be\n\nreduced to less than five years,” the defendant “would then clearly have a right to have\n\nhis larceny conviction reviewed”). If, on the other hand, the court were to decide not to\n\nreduce Charles’s sentence for his drug-trafficking offense under the First Step Act, it\n\n 17\n\fcould then rely on the concurrent sentence doctrine — as it previously applied the\n\ndoctrine and as we affirm here — to dismiss Charles’s § 2255 motion.\n\n AFFIRMED AND REMANDED\n\n\n\n\n 18\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Roger Dale CHARLES, II, Defendant - Appellant.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-07-26\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 17-7416\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nROGER DALE CHARLES, II,\\n\\n Defendant - Appellant.\\n\\n\\nAppeal from the United States District Court for the Western District of North Carolina,\\nat Bryson City. Martin K. Reidinger, District Judge. (2:04-cr-00027-MR-DLH-1; 1:16-\\ncv-00136-MR)\\n\\n\\nArgued: May 7, 2019 Decided: July 26, 2019\\n\\n\\nBefore WILKINSON and NIEMEYER, Circuit Judges, and DUNCAN, Senior Circuit\\nJudge.\\n\\n\\nAffirmed and remanded by published opinion. Judge Niemeyer wrote the opinion, in\\nwhich Judge Wilkinson and Senior Judge Duncan joined.\\n\\n\\nARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH\\nCAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright,\\nOFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for\\nAppellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL\\nDEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina,\\nfor Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED\\n\\fSTATES ATTORNEY, Charlotte, North Carolina, for Appellee.\\n\\n\\n\\n\\n 2\\n\\fNIEMEYER, Circuit Judge:\\n\\n The “concurrent sentence doctrine” authorizes a court to leave the validity of one\\n\\nconcurrent sentence unreviewed when another is valid and carries the same or greater\\n\\nduration of punishment so long as there is no substantial possibility that the unreviewed\\n\\nsentence will adversely affect the defendant or, stated otherwise, so long as it can be\\n\\nforeseen with reasonable certainty that the defendant will suffer no adverse collateral\\n\\nconsequences by leaving it unreviewed. In this case, we find that this standard is\\n\\nsatisfied when the only potential harm to the defendant is grounded on unrealistic\\n\\nspeculation.\\n\\n In 2005, Roger Charles, II, was convicted of possession of more than 50 grams of\\n\\ncocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and\\n\\npossession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). On his drug-\\n\\ntrafficking offense, he was sentenced to 360 months’ imprisonment and 10 years of\\n\\nsupervised release, and on his firearm offense he was sentenced to 360 months’\\n\\nimprisonment and 3 years of supervised release, with the two sentences to be served\\n\\nconcurrently. Both sentences were enhanced by prior felony convictions. On the drug-\\n\\ntrafficking offense, the prior convictions served as the basis for finding Charles to be a\\n\\ncareer offender under U.S.S.G. § 4B1.1(a), and on the firearm offense, they served as a\\n\\nbasis for finding Charles to be an armed career criminal under 18 U.S.C. § 924(e) (the\\n\\nArmed Career Criminal Act (“ACCA”)).\\n\\n Ten years later, after the Supreme Court handed down its decision in Johnson v.\\n\\nUnited States, 135 S. Ct. 2551 (2015), which narrowed the category of offenses that can\\n\\n 3\\n\\fbe used to enhance sentences under ACCA, Charles filed a motion under 28 U.S.C.\\n\\n§ 2255 to reduce the sentences for both of his convictions. The district court found\\n\\nCharles’s sentence for drug trafficking to be valid and declined to review the sentence for\\n\\nhis firearm conviction, applying the concurrent sentence doctrine. The court concluded\\n\\nthat leaving the firearm sentence unreviewed would cause Charles no “realistic potential\\n\\nadverse collateral consequence.”\\n\\n On appeal, Charles contends that the district court erred in applying the concurrent\\n\\nsentence doctrine because he would indeed be exposed to the possibility of a collateral\\n\\nconsequence if his firearm sentence were not reviewed and reduced. Because the\\n\\ncollateral consequence posited by Charles rests on unrealistic speculation, however, we\\n\\naffirm the district court’s application of the concurrent sentence doctrine in the\\n\\ncircumstances presented to it.\\n\\n Nonetheless, after the parties filed their briefs in this appeal, Congress enacted the\\n\\nFirst Step Act of 2018, and Charles now claims that leaving his firearm sentence\\n\\nunreviewed will also have the consequence of denying him relief under that Act. Given\\n\\nthis development, we remand to allow the district court, in the first instance, to consider\\n\\nCharles’s argument that he is eligible for a reduction of his drug-trafficking sentence\\n\\nunder the First Step Act.\\n\\n\\n I\\n\\n After Charles was convicted of drug trafficking and the illegal possession of a\\n\\nfirearm, the Probation Officer prepared a presentence report finding that Charles was a\\n\\n\\n 4\\n\\fcareer offender under U.S.S.G. § 4B1.1(a) and, for purposes of sentencing on the firearm\\n\\nconviction, an armed career criminal under ACCA, 18 U.S.C. § 924(e). The report based\\n\\nthese findings on Charles’s prior Florida felony convictions for (1) battery of a law\\n\\nenforcement officer, (2) armed burglary with a deadly weapon, (3) escape, and\\n\\n(4) resisting an officer with violence. As a career offender, the presentence report\\n\\nconcluded that Charles was subject to an advisory sentencing range of 360 months’ to life\\n\\nimprisonment. And as an armed career criminal, Charles was subject to a mandatory\\n\\nminimum sentence for his firearm conviction of 15 years’ imprisonment and a maximum\\n\\nof life imprisonment, see 18 U.S.C. § 924(e)(1), which was an enhancement of what\\n\\nwould otherwise have been a maximum sentence of 10 years’ imprisonment, see id.\\n\\n§ 924(a)(2).\\n\\n The district court adopted the presentence report and classified Charles as both a\\n\\ncareer offender and an armed career criminal. It then sentenced him to 360 months’\\n\\nimprisonment and 10 years of supervised release on the drug-trafficking offense and 360\\n\\nmonths’ imprisonment and 3 years of supervised release on the firearm offense, with both\\n\\nsentences to run concurrently.\\n\\n Charles’s convictions and sentences were affirmed on direct appeal. See United\\n\\nStates v. Charles, 195 F. App’x 133 (4th Cir. 2006) (per curiam).\\n\\n Ten years later, in May 2016, Charles filed a motion under 28 U.S.C. § 2255 to\\n\\nvacate his sentences based on the Supreme Court’s decision in Johnson, 135 S. Ct. at\\n\\n2563, which held that the “residual clause” used to define a sentence-enhancing “violent\\n\\nfelony” in ACCA was impermissibly vague and therefore that “imposing an increased\\n\\n 5\\n\\fsentence under [ACCA’s] residual clause . . . violate[d] the Constitution’s guarantee of\\n\\ndue process,” and Welch v. United States, 136 S. Ct. 1257, 1265 (2016), which made\\n\\nJohnson retroactively applicable to cases on collateral review. In his § 2255 motion,\\n\\nCharles argued that because three of his four prior convictions qualified as predicate\\n\\nconvictions only under ACCA’s residual clause, they were illegally used to enhance his\\n\\nfirearm sentence. And by the force of Johnson’s reasoning, he also argued that those\\n\\nsame offenses could not be used to designate him as a career offender under the\\n\\nSentencing Guidelines for purposes of enhancing his sentence for drug trafficking.\\n\\n The district court placed Charles’s § 2255 motion in abeyance pending the\\n\\nSupreme Court’s decision in Beckles v. United States, which ultimately held that “the\\n\\nadvisory Guidelines are not subject to vagueness challenges under the Due Process\\n\\nClause,” 137 S. Ct. 886, 890 (2017).\\n\\n Based on Beckles, the government filed a motion to dismiss Charles’s § 2255\\n\\nmotion. It noted first that after Beckles, it was clear that Charles’s challenge to his\\n\\ncareer-offender designation had no merit and that his 360-month sentence on the drug-\\n\\ntrafficking offense was therefore valid. Second, it argued with regard to his firearm\\n\\nsentence that even if Charles had been improperly classified as an armed career criminal\\n\\nunder ACCA, the court need not address Charles’s challenge to that sentence because\\n\\nCharles would still have to serve the valid 360-month sentence on his drug-trafficking\\n\\nconviction and a decision not to review the ACCA enhancement on his firearm\\n\\nconviction would have no adverse collateral consequence.\\n\\n\\n\\n 6\\n\\f In response to the government’s motion, Charles contended that he had been\\n\\n“sentenced to an unconstitutional, over-the-maximum sentence for his [firearm]\\n\\nconviction” and that “[t]he concurrent sentence doctrine [was] inapplicable” because the\\n\\ngovernment had failed to show that he would “suffer no harm” were his ACCA-enhanced\\n\\nsentence allowed to stand. He argued that “leaving [his] ACCA sentence in place\\n\\n[would] carry collateral consequences” by subjecting him to the possibility of a greater\\n\\nsentence for violating the terms of his supervised release. Specifically, he explained that\\n\\nbecause he was sentenced for his firearm conviction under ACCA, the conviction is\\n\\nclassified as a Class A felony, rather than as a Class C felony, and should his supervised\\n\\nrelease be revoked, this difference in classification could subject him to an additional 3\\n\\nyears of imprisonment for the supervised release violation. See 18 U.S.C. §§ 3559(a),\\n\\n3583(e)(3). While Charles acknowledged that he also had a concurrent 10-year term of\\n\\nsupervised release for his drug-trafficking conviction, which is a Class A felony, he\\n\\nargued that he still could “suffer potential adverse consequences from the erroneous\\n\\nclassification of his [firearm conviction] as a Class A felony, because a district court\\n\\n[would have] discretion to impose consecutive prison terms upon revoking concurrent\\n\\nterms of supervised release.” (Emphasis added). Based on this possibility, Charles\\n\\nargued that “the government cannot show that [he] [would] suffer no harm by leaving the\\n\\nunconstitutional ACCA sentence in place.”\\n\\n By an opinion and order dated September 1, 2017, the district court granted the\\n\\ngovernment’s motion to dismiss Charles’s § 2255 motion. First, the court noted that\\n\\nCharles’s challenge to his career offender status had been foreclosed by Beckles and\\n\\n 7\\n\\ftherefore that his 360-month sentence on the drug-trafficking offense was valid. And\\n\\nsecond, invoking the concurrent sentence doctrine, the court declined to decide whether\\n\\nCharles’s 360-month term of imprisonment for his firearm conviction was invalid under\\n\\nJohnson because Charles had been validly sentenced to the same term for his drug-\\n\\ntrafficking offense and the two terms of imprisonment were imposed concurrently. As\\n\\nfor Charles’s argument that he could face adverse collateral consequences should he later\\n\\ncommit a serious violation of his supervised release, the court explained that “[w]hile the\\n\\nscenario posed by [Charles] [was] technically possible, the factors that would have to line\\n\\nup to support such a result make it implausible.” It noted:\\n\\n The maximum Guidelines range for the most serious violation of\\n supervised release calls for a term of incarceration of 51 to 63 months. See\\n U.S.S.G. § 7B1.4(a). In order for that Guidelines range to apply, [Charles]\\n would have to commit a Grade A violation while on supervised release; and\\n that Grade A violation would have to be so serious that the Court would\\n have to upwardly vary in order to impose a sentence of more than 84\\n months, i.e., an upward variance of at least one-third over the top of the\\n recommended Guidelines range.\\n\\nThe court concluded that “[s]uch a hypothetical scenario is simply too speculative to be\\n\\nconsidered a realistic potential adverse collateral consequence requiring review of\\n\\n[Charles’s] sentence on [the firearm conviction].” It accordingly denied Charles’s § 2255\\n\\nmotion and granted the government’s motion to dismiss it, but it also issued a certificate\\n\\nof appealability with respect to the sentence on Charles’s firearm offense.\\n\\n\\n II\\n\\n When sentenced, Charles was given a sentence of 360 months’ imprisonment and\\n\\n10 years of supervised release on his drug-trafficking offense and a concurrent sentence\\n\\n 8\\n\\fof 360 months’ imprisonment and 3 years of supervised release on his firearm offense.\\n\\nRelying on Johnson, he challenged the length of his firearm sentence. The district court\\n\\ndeclined to address his challenge because the sentence for his drug-trafficking offense\\n\\nwas valid and, under the concurrent sentence doctrine, it need not address the claimed\\n\\nerror in the concurring sentence, as any error was harmless.\\n\\n Charles contends that the district court erred in taking that position, arguing that he\\n\\ncould be adversely affected by his invalid firearm sentence. He hypothesizes that after he\\n\\nserves his 360-month sentence, he could commit a serious violation of his supervised\\n\\nrelease, thereby implicating the supervised release on two Class A convictions, and that\\n\\nthe court could then stack the two maximum 5-year revocation sentences by having them\\n\\nrun consecutively, for a total term of 10 years. By contrast, if the sentence for his firearm\\n\\nconviction were corrected, as he argues it should be, the conviction would be reduced\\n\\nfrom a Class A to a Class C felony, see 18 U.S.C. § 3559(a), and the maximum sentence\\n\\nfor violating the terms of supervised release on the conviction would then be 2 years, see\\n\\nid. § 3583(e)(3). Thus, even if the court were to stack the sentences, he could receive at\\n\\nmost 5 years for violating the supervised release on his Class A felony (drug trafficking)\\n\\nand only 2 years for his firearm sentence (a Class C felony), for a total of 7 years. The 7\\n\\nyears would thus be 3 years less than the 10 years that would be possible if his firearm\\n\\noffense were not reviewed.\\n\\n Agreeing with the government, the district court concluded that the harm that\\n\\nCharles posited was too speculative and remote to undermine the proper harmlessness\\n\\nanalysis. It said, “[s]uch a hypothetical scenario is simply too speculative to be\\n\\n 9\\n\\fconsidered a realistic potential adverse collateral consequence requiring review of\\n\\n[Charles’s] sentence on [his firearm conviction].”\\n\\n The issue before us thus turns on the proper understanding of the concurrent\\n\\nsentence doctrine and whether, in the circumstances of this case, it allowed the court to\\n\\nleave unreviewed Charles’s challenge to his firearm sentence.\\n\\n At the outset, we note that the concurrent sentence doctrine rests on the same\\n\\nrationale underlying harmless-error review — namely, the recognition that to help\\n\\npromote the overall functioning of our justice system, courts should “conserve judicial\\n\\nresources by . . . cleans[ing] the judicial process of prejudicial error without becoming\\n\\nmired in harmless error.” United States v. Hasting, 461 U.S. 499, 501 (1983) (citation\\n\\nomitted); see also Benton v. Maryland, 395 U.S. 784, 798–99 (1969) (White, J.,\\n\\nconcurring) (explaining that “[i]n a time of increasingly congested judicial dockets,” the\\n\\nconcurrent sentence doctrine “is not a rule of convenience to the judge, but rather of\\n\\nfairness to other litigants”).\\n\\n In United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), we\\n\\narticulated the doctrine as follows:\\n\\n The concurrent sentence rule provides that where a defendant receives\\n concurrent sentences on plural counts of an indictment and where the\\n conviction on one count is found to be good, a reviewing court need not\\n pass on the validity of the defendant’s conviction on another count. . . .\\n [T]he application of the rule has, though, been restricted to situations where\\n there is no substantial possibility that the unreviewed conviction will\\n adversely affect the defendant’s right to parole or expose him to a\\n substantial risk of adverse collateral consequences.\\n\\n\\n\\n\\n 10\\n\\fId. at 931 (emphasis added). In that case, we applied the doctrine after considering\\n\\nwhether the unreviewed conviction could affect the defendants’ eligibility for parole;\\n\\ntheir place or conditions of confinement; or their “salient factor score[s],” as would be\\n\\ndetermined by the Parole Commission. Concluding that the defendants would not suffer\\n\\nany such adverse collateral consequences, we declined to review the merits of one of the\\n\\ndefendants’ convictions. See id. at 932.\\n\\n Truong Dinh Hung has since remained the leading authority for the application of\\n\\nthe doctrine in our circuit, although our formulation has sometimes varied in our effort to\\n\\nsummarize it. In United States v. Mumford, 630 F.2d 1023 (4th Cir. 1980), we cited\\n\\nTruong Dinh Hung to rule that, because the defendant in that case “was sentenced to\\n\\nconcurrent jail terms on the first five counts of mail fraud” and because there was “no\\n\\nsubstantial possibility” that one of those convictions would “subject him to adverse\\n\\ncollateral consequences,” “under the concurrent sentence doctrine it would not be\\n\\nnecessary to review the validity of [that] conviction.” Id. at 1029 n.7. In United States v.\\n\\nWebster, 639 F.2d 174 (4th Cir. 1981), we again relied on Truong Dinh Hung, albeit with\\n\\na slightly different formulation of the doctrine. We stated in Webster that “[w]e may\\n\\nassume, for the purposes of this case, that under the ‘concurrent sentence’ doctrine, it is\\n\\npermissible to affirm the convictions without investigating whether they were for some\\n\\nreason erroneous, provided we can foresee with reasonable certainty that no adverse\\n\\ncollateral consequences will redound to the defendant.” Id. at 182–83 (emphasis added).\\n\\nIn United States v. Walker, 677 F.2d 1014 (4th Cir. 1982), we relied on Truong Dinh\\n\\nHung again to articulate the doctrine, stating that “a reviewing court need not pass upon\\n\\n 11\\n\\fthe validity of [a] defendant’s conviction for additional counts once it has affirmed his\\n\\nconviction on one count, but only if ‘there is no substantial possibility that the\\n\\nunreviewed conviction will adversely affect the defendant’s right to parole or expose him\\n\\nto a substantial risk of adverse collateral consequences.’” Id. at 1015 (emphasis added).\\n\\nAnd in United States v. Hill, 859 F.2d 325 (4th Cir. 1988), we relied on Truong Dinh\\n\\nHung to summarize the doctrine, yet more briefly, stating that it provides “that where a\\n\\ndefendant is serving concurrent sentences and one conviction is shown to be valid, the\\n\\ncourt may decline to pass upon the validity of the other conviction. It requires a showing\\n\\nthat the defendant will suffer no harm by letting both the valid and unreviewed\\n\\nconvictions stand.” Id. at 326. In short, while some of our language differs, none of our\\n\\ncases indicate that one formulation is wrong or even distinct from any other.\\n\\n Charles focuses on the different language used in Truong Dinh Hung and Webster\\n\\nto claim that we should limit application of the rule to those cases in which a court “can\\n\\nforesee with reasonable certainty” that there will be no adverse collateral consequences,\\n\\nas was articulated in Webster, 639 F.2d at 183. But when Webster’s formulation is\\n\\nrightly analyzed as a summary of Truong Dinh Hung’s, there is no meaningful difference\\n\\nbetween the two, and Charles’s entreaty provides him with no meaningful help.\\n\\n In an effort to describe the proper degree of certainty that harm will not result\\n\\nfrom an unreviewed sentence or conviction, we stated in Truong Dinh Hung that there\\n\\nmust be “no substantial possibility” of harm. And in Webster, we stated that there must\\n\\nbe a “reasonable certainty” of no harm. Each articulation of the standard is designed to\\n\\nlimit by a measure the requirement of “no possibility” or absolute “certainty.” Thus, “no\\n\\n 12\\n\\fpossibility” is limited to “no substantial possibility,” and absolute “certainty” of no harm\\n\\nis limited to “reasonable certainty” of no harm. The message conveyed by both\\n\\nformulations is that when we consider future events, there must always be some\\n\\ncircumspection that eliminates from the forward-looking analysis unrealistic speculation\\n\\nof adverse collateral consequences. See Eason v. United States, 912 F.3d 1122, 1124 (8th\\n\\nCir. 2019) (recognizing that if “highly speculative adverse collateral consequences” were\\n\\nto bar courts from applying the concurrent sentence doctrine, there would be nothing left\\n\\nto “this useful rule” (cleaned up)). Thus, when determining the potential consequences of\\n\\nleaving a sentence unreviewed, we must not engage in unrealistic speculation about the\\n\\npossibility of future harm.\\n\\n In view of intervening Supreme Court decisions, however, we must recognize an\\n\\nadditional limitation to the concurrent sentence doctrine. Because 18 U.S.C. § 3013\\n\\nimposes a special monetary assessment for each count of conviction, the Court has held\\n\\nthat the concurrent sentence doctrine cannot be applied to avoid reaching a defendant’s\\n\\nchallenge to one of his federal convictions, reasoning that the additional punishment of\\n\\nthe assessment means that the sentences are not truly concurrent. See Ray v. United\\n\\nStates, 481 U.S. 736, 737 (1987) (per curiam). Moreover, even beyond the existence of a\\n\\nspecial assessment for each of multiple convictions, the Court has indicated that there are\\n\\nother collateral consequences attaching to unreviewed convictions that limit the\\n\\napplicability of the concurrent sentence doctrine. In Rutledge v. United States, 517 U.S.\\n\\n292 (1996), the Court noted:\\n\\n\\n\\n 13\\n\\f The separate conviction, apart from the concurrent sentence, has potential\\n adverse collateral consequences that may not be ignored. For example, the\\n presence of two convictions on the record may delay the defendant’s\\n eligibility for parole or result in an increased sentence under a recidivist\\n statute for a future offense. Moreover, the second conviction may be used\\n to impeach the defendant’s credibility and certainly carries the societal\\n stigma accompanying any criminal conviction.\\n\\nId. at 302 (cleaned up).\\n\\n Yet, while the concurrent sentence doctrine cannot be applied to avoid reviewing\\n\\nthe validity of one of a defendant’s convictions, the doctrine still has continuing force as a\\n\\nspecies of harmless-error review where a defendant seeks to challenge the legality of a\\n\\nsentence that was imposed for a valid conviction, but where the challenged sentence runs\\n\\nconcurrently with a valid sentence of an equal or greater duration. See, e.g., Eason, 912\\n\\nF.3d at 1123; In re Williams, 826 F.3d 1351, 1356–57 (11th Cir. 2016); United States v.\\n\\nHarris, 695 F.3d 1125, 1139 (10th Cir. 2012); United States v. Pierre, 484 F.3d 75, 88,\\n\\n90–91 (1st Cir. 2007).\\n\\n In this case, Charles’s conviction and 360-month sentence for drug trafficking is\\n\\nvalid, and he does not suggest otherwise on appeal. Rather, he challenges his concurrent\\n\\n360-month sentence — not his conviction — for illegally possessing a firearm. Thus,\\n\\ngiven Charles’s drug-trafficking sentence, his challenge to his firearm sentence can have\\n\\nno effect on his total term of imprisonment. Likewise, he would still face 10 years of\\n\\nsupervised release imposed as part of his drug-trafficking sentence, which is longer than\\n\\nthe 3-year term of supervised release that was imposed for his firearm conviction.\\n\\n Charles argues nonetheless that under an extremely unrealistic hypothetical he has\\n\\nposited, he could be adversely affected if his firearm sentence were not reviewed and\\n\\n 14\\n\\fcorrected. Specifically, he describes a situation where, after serving a 30-year term of\\n\\nimprisonment and being released from prison when he is nearly 60 years old, he would\\n\\ncommit a violation of his supervised release within the first three years of his release —\\n\\nthe period during which he would be serving two concurrent terms of supervised release\\n\\non the two sentences. Moreover, his violation of his supervised release would have to be\\n\\nso serious that the district court would not be satisfied with the Guidelines’ recommended\\n\\nsentence of 51 to 63 months’ imprisonment for the most serious grade violation, see\\n\\nU.S.S.G. § 7B1.4(a), but would decide that it needed to vary upward to impose a total\\n\\nrevocation sentence that was greater than 84 months’ imprisonment, which it could only\\n\\nachieve by stacking near-maximum revocation sentences by imposing them\\n\\nconsecutively. By contrast, were Charles to succeed in reducing his firearm sentence, 84\\n\\nmonths’ imprisonment would be the statutory maximum that he could face for a violation\\n\\nof his supervised release. In short, Charles argues that he is exposed to the risk of serving\\n\\nup to 120 months’ imprisonment — two 60-month sentences stacked consecutively — for\\n\\na future violation of his supervised release, which would be 36 months more than if his\\n\\nfirearm sentence were reviewed and reduced.\\n\\n Such a hypothetical scenario, however, is highly speculative and unrealistic. It\\n\\nwould require: (1) that Charles commit a violation of his supervised release; (2) that his\\n\\nviolation occur in the 3-year window after his release from prison when he would be\\n\\nserving both release terms; (3) that his violation be extraordinarily serious; (4) that the\\n\\ncourt find the Guidelines’ recommendation of 51 to 63 months’ imprisonment for the\\n\\nmost serious violation to be insufficient to punish the violation; and (5) that the court find\\n\\n 15\\n\\fit necessary to issue a variance sentence that would be at least 22 months longer than the\\n\\nhighest recommended sentence to reach a sentence in excess of 84 months’\\n\\nimprisonment. Not only is the prospect of all of this happening remote, but, most\\n\\nsignificantly, Charles’s hypothetical could only arise if he were to choose to violate the\\n\\nterms of his supervised release. Thus, his posited adverse effect would be entirely within\\n\\nhis ability to avoid. As the Eighth Circuit recently stated in identical circumstances,\\n\\n“[The hypothetical] could not occur unless [the defendant] chooses to commit serious\\n\\nviolations of law during his future term of supervised release. Thus, the adverse\\n\\nconsequences are entirely within [his] control to avoid. Literal application of such\\n\\nspeculative consequences, resting upon a supposition of [the defendant’s] continued\\n\\ncriminality, would effectively bar the application of the concurrent sentence rule.”\\n\\nEason, 912 F.3d at 1124 (cleaned up).\\n\\n In short, we conclude that in the circumstances presented to the district court, it\\n\\ndid not abuse its discretion by applying the concurrent sentence doctrine and declining to\\n\\nreview Charles’s sentence for illegal possession of a firearm.\\n\\n\\n III\\n\\n Following the parties’ briefing on appeal, however, Congress enacted the First\\n\\nStep Act of 2018, which, among other things, allows district courts to apply the Fair\\n\\nSentencing Act of 2010 retroactively to sentences for certain crimes committed before\\n\\nAugust 3, 2010. The Fair Sentencing Act reduced the disparity between sentences for\\n\\ncrack cocaine offenses and powder cocaine offenses. In a letter to this court, Charles\\n\\n\\n 16\\n\\fnoted this development and argued that, as a result, he will suffer a new collateral\\n\\nconsequence if we do not review his firearm sentence because leaving that sentence\\n\\nunreviewed will effectively deny him the benefit of the First Step Act. As he reasons,\\n\\neven if he were granted a reduction of his drug-trafficking sentence under the First Step\\n\\nAct, such a reduction would be meaningless because his firearm sentence of 360 months’\\n\\nimprisonment would remain in place, unreviewed.\\n\\n The government contends that Charles is not eligible for a reduction of his drug-\\n\\ntrafficking sentence under the First Step Act and therefore that its enactment “does not\\n\\nundercut the district court’s conclusion that no realistic consequence would flow from its\\n\\ndecision not to review” Charles’s firearm sentence.\\n\\n We conclude that because the impact of the First Step Act was not considered by\\n\\nthe district court, as the Act was enacted after the court ruled, the better course is to\\n\\nremand this case to the district court for it to consider the effect of the Act in the first\\n\\ninstance. Should the district court conclude that Charles is eligible for a reduction of his\\n\\ndrug-trafficking sentence under the Act and further that such a reduction would be\\n\\nwarranted, this remand will enable the court to consider the merits of Charles’s § 2255\\n\\nmotion challenging his firearm sentence. Cf. Benton, 395 U.S. at 793 (recognizing, in a\\n\\ncase in which the defendant had been sentenced to 15 years for burglary and a concurrent\\n\\nsentence of 5 years for larceny, that “should the length of the burglary sentence be\\n\\nreduced to less than five years,” the defendant “would then clearly have a right to have\\n\\nhis larceny conviction reviewed”). If, on the other hand, the court were to decide not to\\n\\nreduce Charles’s sentence for his drug-trafficking offense under the First Step Act, it\\n\\n 17\\n\\fcould then rely on the concurrent sentence doctrine — as it previously applied the\\n\\ndoctrine and as we affirm here — to dismiss Charles’s § 2255 motion.\\n\\n AFFIRMED AND REMANDED\\n\\n\\n\\n\\n 18\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2961,"cells":{"id":{"kind":"number","value":4643379,"string":"4,643,379"},"name":{"kind":"string","value":"In RE: Carlos BROWN, Petitioner."},"name_abbreviation":{"kind":"string","value":"In re: Carlos Brown"},"decision_date":{"kind":"string","value":"2019-07-26"},"docket_number":{"kind":"string","value":"18-1527"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Motz, Agee, Wynn\", \"parties\": \"\", \"opinions\": [{\"author\": \"AGEE, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1527\\n\\n\\n\\nIn re: CARLOS BROWN,\\n\\n Petitioner.\\n\\n\\nOn Petition for Writ of Mandamus from the United States District Court for the District of\\nMaryland, at Greenbelt. (8:17-po-07283-TMD-1)\\n\\n\\nArgued: March 20, 2019 Decided: July 26, 2019\\n\\n\\nBefore MOTZ, AGEE and WYNN, Circuit Judges.\\n\\n\\nPetition for writ of mandamus granted by published opinion. Judge Agee wrote the opinion,\\nin which Judge Motz and Judge Wynn joined.\\n\\n\\nARGUED: Victor Darrel Stone, MARYLAND CRIME VICTIMS’ RESOURCE\\nCENTER, INC., Upper Marlboro, Maryland, for Petitioner. Jason Daniel Medinger,\\nOFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland; Cullen Oakes\\nMacbeth, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for\\nRespondents. ON BRIEF: Russell P. Butler, MARYLAND CRIME VICTIMS’\\nRESOURCE CENTER, INC., Upper Marlboro, Maryland, for Petitioner. Robert K. Hur,\\nUnited States Attorney, Jane F. Nathan, Assistant United States Attorney, OFFICE OF\\nTHE UNITED STATES ATTORNEY, Baltimore, Maryland, for Respondent United\\nStates of America. James Wyda, Federal Public Defender, Baltimore, Maryland, Paresh\\nS. Patel, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC\\nDEFENDER, Greenbelt, Maryland, for Respondent Joyce Boone.\\n\\fAGEE, Circuit Judge:\\n\\n In June 2017, Joyce Boone injured Carlos Brown in a car accident she caused while\\n\\ndriving under the influence of alcohol. She pleaded guilty to three traffic violations before\\n\\nthe United States magistrate judge and was sentenced to two years’ probation. Brown asked\\n\\nthe court to order restitution as a condition of Boone’s probation, but his request was\\n\\ndenied. He now petitions this Court for a writ of mandamus pursuant to 18 U.S.C.\\n\\n§ 3771(d)(3). For the reasons stated below, we grant the petition and remand the case.\\n\\n\\n\\n I.\\n\\n A.\\n\\n Brown owned and operated his own electrician’s business at the time of the\\n\\naccident. In June 2017, he was riding a motorcycle on a federal roadway in Maryland when\\n\\nBoone ran a red light while operating her vehicle under the influence of alcohol. She\\n\\ncollided with Brown, leaving him with serious injuries that required at least seven surgeries\\n\\nwithin one year of the accident. Brown had metal rods installed in various parts of his body\\n\\nand needed assistive devices to walk. Because of these injuries, Brown alleged that he\\n\\nbecame unable to work as an electrician or perform daily activities and was “struggling\\n\\nphysically, mentally, emotionally, [and] financially.” J.A. 39.\\n\\n\\n\\n\\n 2\\n\\f Boone was later charged with six violations of various federal traffic regulations in\\n\\nthe United States District Court for the District of Maryland. 1 She reached a plea agreement\\n\\nwith the Government and pleaded guilty to three offenses 2: (1) driving with a blood alcohol\\n\\nconcentration of .08 or above in violation of 36 C.F.R. § 4.23(a)(2); (2) failing to obey a\\n\\ntraffic control device in violation of 36 C.F.R. § 4.12; and (3) unsafely operating a motor\\n\\nvehicle in violation of 36 C.F.R. § 4.22(b)(1). Under the terms of the plea agreement, the\\n\\nGovernment agreed to recommend a sentence of probation but make no recommendation\\n\\nregarding Brown’s claim for restitution as part of Boone’s sentence. The parties proceeded\\n\\nto a plea hearing, 3 during which the court conducted a plea colloquy and accepted Boone’s\\n\\nguilty plea.\\n\\n At the hearing, Brown requested that the court order restitution in the amount of\\n\\n$18,976 as a condition of Boone’s probation. Specifically, Brown sought restitution for the\\n\\ndeductible of $250 he paid to his vehicle insurance company and his estimated lost wages\\n\\nfor the past seven months, which he calculated at an hourly rate of $22, less the settlement\\n\\namount of $30,000 he received from his insurer. To support his restitution request, Brown\\n\\n\\n\\n 1\\n A violation of the federal traffic regulations is punishable for a term of\\nimprisonment not exceeding six months, 36 C.F.R. § 1.3; see 18 U.S.C. § 1865(a), and thus\\nis a Class B misdemeanor, 18 U.S.C. § 3559 (a)(7).\\n 2\\n Boone’s proceedings were before the magistrate judge because she was charged\\nwith petty offenses, see 18 U.S.C. § 19 (identifying a Class B misdemeanor as a “petty\\noffense”), and magistrate judges have authority “to dispose of cases involving petty\\noffenses . . . committed by both youth offenders and adults,” United States v. Snow, 748\\nF.2d 928, 931 (4th Cir. 1984).\\n 3\\n The magistrate judge set a bench trial for February 1, 2018. On that day, the\\nGovernment notified the court that the parties reached a plea agreement, which converted\\nthe scheduled trial into a plea hearing.\\n 3\\n\\fprovided personal and familial statements about his injuries and an October 2017 letter\\n\\nfrom his physician stating that he would not be able to work full-time for one to one-and-\\n\\na-half years after the accident. Brown explicitly declined to seek restitution for his medical\\n\\nbills or future lost wages.\\n\\n Boone agreed that the $250 deductible was an appropriate part of a restitution award\\n\\nbut objected to Brown’s claim for past lost wages because she contended his supporting\\n\\nevidence was speculative and not reliable. She asked the court to order a restitution award\\n\\nof $250, or, in the alternative, schedule a hearing as to any other proper amounts, although\\n\\nshe believed the issue of restitution “would all get flushed out in the civil proceedings\\n\\nthrough discovery where it should be flushed out. Not here [in] a criminal magistrate\\n\\ncourt.” J.A. 52. At that point, the court noted that Brown “got serious injuries [and] has had\\n\\nserious medical injuries in the past. It sounds like more surgery is down the road, lost\\n\\nwages, children. [T]his is not something I can decide today.” J.A. 60–61. The court\\n\\ndeclined to order restitution at that time, stating that Brown’s case was “extraordinarily\\n\\nunusual,” J.A. 60, but ordered a presentence report directing the probation officer to\\n\\nexamine the issue of restitution. The court scheduled a sentencing hearing for April 2018.\\n\\n Prior to the sentencing hearing, Brown filed an amended request seeking restitution\\n\\nin the amount of $19,040.32 solely to cover his past lost wages. To support the request, he\\n\\nsubmitted his 2017 federal tax return, his own affidavit detailing his physical struggles, and\\n\\nthe letter from his physician. In the letter, the doctor noted that Brown was using a walker\\n\\nand needed physical therapy twice per week for the next six months. The physician further\\n\\nstated “[i]f he is able to resume his regular full-time work as an electrician, it will likely be\\n\\n 4\\n\\f1[ to ]1-1/2 years from the time of his injury.” J.A. 75. There was no evidence offered as\\n\\nto whether Brown could work part-time as an electrician or was capable of maintaining\\n\\nsome other form of full- or part-time employment.\\n\\n At the sentencing hearing, Brown reiterated his request for restitution, stating that\\n\\nhe would not pursue any civil action against Boone. She continued to oppose the request,\\n\\narguing that the court should “stay out of it” because Brown’s restitution request “is [better\\n\\nsuited for] civil litigation.” J.A. 109. Further, Boone challenged the reliability of the\\n\\nOctober 2017 letter from Brown’s doctor and questioned why Brown could not find other\\n\\nemployment and thereby mitigate damages. She also argued that the court may not award\\n\\nrestitution here because her conduct underlying the offenses to which she pleaded guilty\\n\\ndid not cause Brown’s injury. 4 Boone asked the court to place her on one year of probation\\n\\nand not to order restitution as a condition of probation.\\n\\n B.\\n\\n The court sentenced Boone to two years’ probation but declined to order restitution,\\n\\nlargely for two reasons: Brown lacked sufficient evidence to support his restitution request\\n\\nand the sentencing forum was unsuitable for determining the requested restitution. First,\\n\\neven though the court acknowledged that it had discretion to order restitution and “no\\n\\nreason to not believe Mr. Brown,” J.A. 126, it rejected Brown’s request, stating:\\n\\n although there is evidence of lost wages through Mr. Brown’s own testimony\\n and tax return, in my opinion there has got to be more than simply the\\n victim’s statement to award restitution in the amount of $20,000. . . . . [T]his\\n\\n\\n 4\\n Boone has abandoned this claim on appeal and does not contest that her conduct\\nunderlying the convicted offenses did cause Brown’s injury.\\n 5\\n\\f is misdemeanor court. This court generally does not deal with restitution, and\\n if we are going to deal with restitution, it is not in this amount.\\n\\nJ.A. 127. The court also discussed Brown’s future medical bills that were approximately a\\n\\n“half a million dollars,” J.A. 128, although Brown did not request restitution for those\\n\\nexpenses.\\n\\n Next, based on the proffered evidence and Boone’s opposition, the court determined\\n\\nthat under the circumstances of this case it was not the appropriate forum to determine\\n\\nrestitution and referenced United States v. Fountain in support of its decision. See 768 F.2d\\n\\n790, 801–02 (7th Cir. 1985) (upholding the district court’s decision not to award restitution\\n\\nfor future lost wages because “the calculation of lost future earnings involves the difficult\\n\\nproblem of translating an uncertain future stream of earnings into a present value”). The\\n\\ncourt then stated, “[i]n a criminal context the Court will put its foot into the waters of\\n\\nrestitution if things are readily and accurately ascertainable uncontested. We are contested\\n\\nhere, and that is why this is just so not the forum to be dealing with these kinds of figures.”\\n\\nJ.A. 129. The court also noted that “to order restitution in the amount that is being requested\\n\\nwith the evidence that would give me the level of confidence and comfort in that I am being\\n\\naccurate would, in my opinion, complicate and prolong the sentencing process.” J.A. 130.\\n\\nThe court advised Brown to seek restitution in a civil suit so that he could conduct\\n\\ndiscovery and deal with “big figures.” J.A. 129.\\n\\n\\n\\n\\n 6\\n\\f From the denial of his request for restitution, Brown timely petitions for a writ of\\n\\nmandamus as authorized by the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771. 5\\n\\nBoone opposes the petition, and the Government, in accordance with its obligation under\\n\\nthe plea agreement, takes no position either for or against a restitution award. We have\\n\\njurisdiction under § 3771(d)(3) and grant the petition for the reasons that follow. 6\\n\\n\\n\\n II.\\n\\n On appeal, Boone makes two arguments: that (1) we lack subject matter jurisdiction\\n\\nto review Brown’s petition and (2) even if we have jurisdiction, the petition lacks merit.\\n\\nWe examine and reject each argument in turn.\\n\\n A.\\n\\n Section 3771(d)(3) governs our jurisdiction over Brown’s petition, as it allows a\\n\\ncrime victim to “petition the court of appeals for a writ of mandamus” if “the district court\\n\\ndenies the [restitution request].” § 3771(d)(3) (emphasis added). Boone asserts that the\\n\\nstatute does not authorize our review of Brown’s petition because it challenges the decision\\n\\nmade by a magistrate judge, not a district court judge. She argues that by using the specific\\n\\n\\n\\n 5\\n The CVRA “protect[s] victims and guarantee[s] them some involvement in the\\ncriminal justice process” by providing them with “notice of any proceedings, the right to\\nattend those proceedings, the right to confer with the prosecutor, and the right to be\\n‘reasonably heard at any public proceeding in the district court involving release, plea,\\nsentencing, or parole proceeding.’” United States v. Moussaoui, 483 F.3d 220, 234 (4th\\nCir. 2007) (quoting 18 U.S.C. § 3771(a)).\\n 6\\n We note that despite Boone’s concession that restitution for the $250 insurance\\ndeductible was appropriate, the court declined to award that amount. Brown makes no\\nclaim on appeal that the failure to make that award was erroneous.\\n 7\\n\\fterm “district court,” § 3771(d)(3) “only authorizes a victim to challenge a district court’s\\n\\ndenial of a restitution request—not a magistrate court’s denial of the same.” Response Br.\\n\\n12. In effect, Boone argues that a magistrate court does not fall within the meaning of\\n\\n“district court” under § 3771(d)(3) because it is separate and different from a district court.\\n\\n Arguing that Congress’ choice of the term “district court” in § 3771(d)(3) precludes\\n\\nour review of magistrate judges’ decisions, Boone cites to 18 U.S.C. § 3402 in support.\\n\\nThis general appeal statute states, “[i]n all cases of conviction by a United States magistrate\\n\\njudge an appeal of right shall lie from the judgment of the magistrate judge to a judge of\\n\\nthe district court of the district in which the offense was committed.” § 3402. Boone asserts\\n\\nthat only the Government can appeal a magistrate judge’s denial of a restitution request to\\n\\na district judge under § 3402 and, if the district judge denies the appeal, can proceed to a\\n\\ncourt of appeals under § 3771(d)(3). According to Boone, Congress intentionally\\n\\ndistinguished the magistrate judge from the district judge in § 3402 and, had it intended a\\n\\ncrime victim to have any rights to directly petition a court of appeals for a writ of\\n\\nmandamus based on a magistrate judge’s denial of restitution, Congress would have used\\n\\nthe term “magistrate” in § 3771(d)(3). Thus, in Boone’s view, where the Government takes\\n\\nno position on a petition for a writ of mandamus and the district court judge has not\\n\\nreviewed the magistrate judge’s denial, we lack subject matter jurisdiction to consider the\\n\\npetition. We disagree.\\n\\n Boone’s argument is erroneous for at least three reasons. First, her reading of\\n\\n“district court” in § 3771(d)(3) is inconsistent with the relevant statutory definitions. Under\\n\\n18 U.S.C. § 3001, the statutes in Part II of Title 18, including § 3771, are governed by the\\n\\n 8\\n\\fapplicable definitional rules of the Federal Rules of Criminal Procedure. Pursuant to Rule\\n\\n1, “‘[c]ourt’ means a federal judge performing functions authorized by law.” Fed. R. Crim.\\n\\nP. 1(b)(2). “‘Federal judge,” in turn, is defined to include “a magistrate judge.” Fed. R.\\n\\nCrim. P. 1(b)(3)(B). The Advisory Committee intentionally crafted this definition to\\n\\n“reflect[] the current understanding that magistrate judges act as the ‘court’ in many\\n\\nproceedings” because it found the term “court’s” synonymous use with “‘district judge’”\\n\\nto be “misleading or unduly narrow” and not to “cover the many functions performed by\\n\\nmagistrate judges.” Fed. R. Crim. P. 1(b)(2) advisory committee’s note to 2002\\n\\namendment. This principle must be incorporated into the definition of “district court” in\\n\\n§ 3771 because Rule 1 governs the statute’s definitions. See id. Thus, by definition, a\\n\\n“district court” under § 3771(d)(3) includes a magistrate judge. Boone’s argument ignores\\n\\nboth the definitional structure for § 3771 imposed through § 3001 and Congress’ decision\\n\\nnot to alter that structure for purposes of § 3771.\\n\\n Second, Boone misstates the scope of § 3402, which deals with “an appeal of right”\\n\\n“from the judgment of the magistrate judge to a judge of the district court” in “all cases of\\n\\nconviction by a United States magistrate judge.” 18 U.S.C. § 3402. The case before us is\\n\\nnot such an appeal. It is a fundamentally different proceeding by the crime victim—not the\\n\\ndefendant—and thus does not fall under § 3402 as an appeal from a “case[ ] of conviction\\n\\nby a United States magistrate judge.” § 3402; see In re Murphy-Brown, LLC, 907 F.3d 788,\\n\\n793 (4th Cir. 2018) (“[W]rits of mandamus function differently from ordinary\\n\\nappeals. . . .”).\\n\\n\\n\\n 9\\n\\f Under the plain terms of § 3771(d)(3), it is the “movant” who “may petition the\\n\\ncourt of appeals for a writ of mandamus” “[i]f the district court denies the relief sought.”\\n\\n§ 3771(d)(3). Brown is the “movant” under § 3771(d)(3) and is clearly accorded the right\\n\\nto petition under the statute. Congress’ specific grant of this right to a “movant” is unrelated\\n\\nto any appeal under § 3402 and is plainly not a right granted to a defendant or limited to\\n\\nthe Government. Congress has made this distinction clear by enacting § 3771(d)(4), which\\n\\n“simultaneously affords the government with the ability to obtain ordinary appellate review\\n\\nof the [restitution] decision.” See In re Antrobus, 519 F.3d 1123, 1129 (10th Cir. 2008). By\\n\\nexpressly providing only the Government, not a “movant,” with ordinary direct appeal\\n\\nrights, Congress has distinguished the appellate rights for mandamus review afforded to a\\n\\n“movant” under § 3771(d)(3) from the ordinary appeal rights afforded to a party or the\\n\\nGovernment under § 3771(d)(4) which would be subject to § 3402. See Sosa v. Alvarez-\\n\\nMachain, 542 U.S. 692, 711 n.9 (2004) (“[W]hen the legislature uses certain language in\\n\\none part of the statute and different language in another, the court assumes different\\n\\nmeanings were intended.” (internal quotation marks omitted)).\\n\\n As a result, Boone’s position simply ignores Congress’ specific choice of “a\\n\\nmandamus petition [to a court of appeals] as the appropriate vehicle for appellate review\\n\\nof an order denying a crime victim’s assertion of a right protected thereunder.” In re Doe,\\n\\n264 F. App’x 260, 262 (4th Cir. 2007); see Fed. R. Crim. P. 60(b)(5) (stating that a crime\\n\\nvictim may move to reopen a plea or sentence if, among other things, “the victim petitions\\n\\nthe court of appeals for a writ of mandamus within 10 days after the denial, and the writ is\\n\\ngranted”); United States v. Monzel, 641 F.3d 528, 540 (D.C. Cir. 2011) (“Since the\\n\\n 10\\n\\fenactment of the CVRA, every circuit . . . has held that mandamus is a crime victim’s only\\n\\nrecourse for challenging a restitution order”).\\n\\n Brown, as the victim, has no right to contest the propriety of Boone’s conviction.\\n\\nSee United States v. Aguirre-Gonzalez, 597 F.3d 46, 53 (1st Cir. 2010) (“[C]rime victims\\n\\nare not parties to a criminal sentencing proceeding. . . . . Thus, the baseline rule is that\\n\\ncrime victims, as non-parties, may not appeal a defendant’s criminal sentence.”). Instead,\\n\\nby petitioning this Court for a writ of mandamus, Brown is asserting his separate statutory\\n\\nright to restitution which Congress has afforded him under the CVRA. See id. at 54\\n\\n(holding that although “crime victims have no right to directly appeal a defendant’s\\n\\ncriminal sentence,” “the CVRA expressly provides [them] with a limited avenue to\\n\\nchallenge the restitution component of a defendant’s sentence through a petition for a writ\\n\\nof mandamus”). Brown’s § 3771(d)(3) petition thus has no relation to an appeal under\\n\\n§ 3402 and the distinctions that statute draws between a magistrate judge and a district\\n\\njudge do not apply here.\\n\\n Last, Boone’s interpretation of § 3771(d)(3) creates a conflict with other statutes\\n\\ngoverning magistrate judges and ignores Congress’ policy choices behind those statutes.\\n\\nHer approach violates canons of statutory interpretation that require courts to “reflect,\\n\\nrather than distort, the policy choices that elected representatives have made” in\\n\\ninterpreting statutes, Almendarez-Torres v. United States, 523 U.S. 224, 238 (1998), and\\n\\nto avoid “reading conflicts into statutes,” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1630\\n\\n(2018). In following these doctrines, we must reject Boone’s argument.\\n\\n\\n\\n 11\\n\\f Our analysis is derived from two statutes under the Federal Magistrates Act, 28\\n\\nU.S.C. § 636, and 18 U.S.C. § 3401, which create and govern the office of magistrate judge\\n\\nand demonstrate a magistrate judge’s role as an arm of the district court. The Federal\\n\\nMagistrates Act invests certain judicial powers in magistrate judges, including the powers\\n\\n“to enter a sentence for a petty offense” and “to conduct trials under section 3401, title 18,\\n\\nUnited States Code, in conformity with and subject to the limitations of that section”\\n\\n“within the district in which sessions are held by the court that appointed the magistrate\\n\\njudge.” 28 U.S.C. § 636(a). In turn, § 3401(b) provides, “[a]ny person charged with a\\n\\nmisdemeanor, other than a petty offense may elect . . . to be tried before a district judge for\\n\\nthe district in which the offense was committed.” 18 U.S.C. § 3401(b) (emphasis added).\\n\\nThis section indicates that a defendant who is charged with a petty offense, like Boone,\\n\\nmay not elect to be tried before a district judge and must proceed before a magistrate judge\\n\\nunless a district judge chooses to preside in the case.\\n\\n This statutory scheme reflects “Congress’ perception that the assistance of federal\\n\\nmagistrates was a necessary measure to ensure that the already severe pressures on the\\n\\nfederal district courts do not become overwhelming.” United States v. Raddatz, 447 U.S.\\n\\n667, 713 (1980) (Marshall, J., dissenting). By enacting the Federal Magistrates Act,\\n\\n The Congress . . . manifested its intention to create a judicial officer and to\\n invest in him the power to furnish assistance to a judge of the district court.\\n The magistrate was given jurisdiction over petty criminal offenses and the\\n Act also gave each district court the discretionary power to use the magistrate\\n to assist a district court judge . . .\\n ....\\n [T]he Congress clearly indicated its intent that the magistrate should be a\\n judicial officer whose purpose was to assist the district judge to the end that\\n the district judge could have more time to preside at the trial of cases having\\n\\n 12\\n\\f been relieved of part of his duties which required the judge to personally hear\\n each and every pretrial motion or proceeding necessary to prepare a case for\\n trial.\\n\\nH.R. Rep. No. 94-1609, at 6 (1976), as reprinted in 1976 U.S.C.C.A.N. 6162, 6166\\n\\n(emphasis added). Pursuant to this clear congressional intent, magistrate judges “are\\n\\nappointed and subject to removal by Article III judges,” Peretz v. United States, 501 U.S.\\n\\n923, 937 (1991), and “district judges retain plenary authority over when, what, and how\\n\\nmany pretrial matters are assigned to magistrates,” Raddatz, 447 U.S. at 685 (Blackmun,\\n\\nJ., concurring). Thus, magistrate judges, as “competent and impartial assistants” of district\\n\\njudges, are an integral part of a district court. Id. at 686.\\n\\n Based on this legislative history and the statutory scheme governing magistrate\\n\\njudges, we conclude that a magistrate court is included within the term “district court”\\n\\nunder § 3771(d)(3). See Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 222 (2008) (noting\\n\\nthat courts’ construction of a statutory term must “ensure that the statutory scheme is\\n\\ncoherent and consistent”). Unlike the specific distinction Congress has drawn between the\\n\\nmagistrate judge and the district court judge in § 3402, Congress has made no such\\n\\ndistinction in § 3771 regarding petitions for a writ of mandamus. We see no basis, sub\\n\\nsilentio, to draw such a distinction in the absence of a specific direction from Congress. To\\n\\ndo so would create the absurd result that under § 3771(d)(3), a crime victim could petition\\n\\nfrom the denial of restitution if a district judge made the determination but could not do so\\n\\nif a magistrate judge made the same decision.\\n\\n Boone’s reading requires that when a magistrate judge declines to award restitution\\n\\npursuant to § 636(a) and § 3401 in a petty offense case, a victim cannot exercise his\\n\\n 13\\n\\fstatutory rights under § 3771(d)(3) to seek appellate review of that decision. Boone points\\n\\nto no legal authority other than her tortured interpretation of § 3771(d)(3), which\\n\\neffectively negates the specific rights of crime victims guaranteed by the CVRA.\\n\\nConstruing the statutes as Boone proposes directly contradicts Congress’ express,\\n\\nunambiguous intent that regardless of whether the underlying offense is a petty offense,\\n\\n“[t]he crime victim or the crime victim’s lawful representative [as well as] the attorney for\\n\\nthe Government may assert” the rights to restitution provided under § 3771. § 3771(d)(1)\\n\\n(emphasis added).\\n\\n For all these reasons, we reject Boone’s argument and hold that we have subject\\n\\nmatter jurisdiction over Brown’s petition under § 3771(d)(3).\\n\\n B.\\n\\n Next, we address Boone’s argument that the petition lacks merit. In doing so, we\\n\\nreview the lower court’s restitution decision for abuse of discretion. United States v.\\n\\nLeftwich, 628 F.3d 665, 667 (4th Cir. 2010).\\n\\n Before analyzing the merits of the petition, we review the scope of the applicable\\n\\nrestitution statutes because “federal courts do not have the inherent authority to order\\n\\nrestitution, but must rely on a statutory source” to do so. United States v. Cohen, 459 F.3d\\n\\n490, 498 (4th Cir. 2006). Relevant here are two restitution enactments: the Victim and\\n\\nWitness Protection Act (“VWPA”), 18 U.S.C. § 3663, and the Mandatory Victims\\n\\nRestitution Act (“MVRA”), 18 U.S.C. § 3663A. 7 These statutes “impose different\\n\\n\\n 7\\n The CVRA is substantively different from the VWPA and the MVRA in that it\\n“makes available to crime victims, among other things, procedural mechanisms to assert\\n 14\\n\\frequirements on the district court when it determines an award of restitution.” Leftwich,\\n\\n628 F.3d at 667. The key difference between them is that “an award of restitution under\\n\\nthe VWPA is not mandatory,” whereas “the MVRA mandates that the sentencing court\\n\\norder restitution in the full amount of the victim’s loss when the defendant has been\\n\\nconvicted of certain specified offenses.” Id. at 668. As the parties concede and the lower\\n\\ncourt correctly held, the VWPA governs Brown’s restitution request because Boone’s\\n\\noffenses do not qualify as offenses that warrant mandatory restitution under the MVRA.\\n\\nCf. 18 U.S.C. § 3663A(a)(1), (c).\\n\\n To analyze the applicable restitution statutes, we first examine whether the\\n\\nsentencing court may award restitution under § 3563(b)(2) because Brown asked that\\n\\nrestitution be imposed as a condition of Boone’s probation. Under this provision, a court\\n\\nhas discretion to order “restitution to a victim of the offense under section 3556” as a\\n\\ncondition of probation. § 3563(b)(2). In turn, § 3556 states that “[t]he court, in imposing a\\n\\nsentence on a defendant who has been found guilty of an offense . . . may order restitution\\n\\nin accordance with section 3663” and follow the procedures set forth in § 3664. § 3556.\\n\\n An award of restitution under § 3663 is discretionary, as this section states that the\\n\\ncourt “may order . . . that the defendant make restitution to any victim of [the] offense.”\\n\\n\\nsubstantive rights in a defendant’s criminal proceedings and on appeal, including rights as\\nprovided in the VWPA and MVRA.” Aguirre-Gonzalez, 597 F.3d at 48 n.2; see United\\nStates v. Kovall, 857 F.3d 1060, 1065 (9th Cir. 2017) (“The CVRA provides mechanisms\\nfor enforcing a victim’s rights under the Act.”). Thus, the CVRA “provide[s] a right to\\npetition the court of appeals for mandamus, grant[s] the government express power to\\nassert crime victims’ rights on appeal, [and] set[s] forth procedures by which victims may\\nmove to reopen sentences,” whereas the VWPA and the MVRA do not. See Monzel, 641\\nF.3d at 543–44.\\n 15\\n\\f§ 3663(a)(1)(A) (emphasis added). The court’s discretion under the VWPA, however, is\\n\\nnot unfettered; instead, “[d]iscretion in ordering restitution is circumscribed by the\\n\\nprocedural and substantive protections” of the statute. Leftwich, 628 F.3d at 667 (internal\\n\\nquotation marks omitted). The court, in “determining whether to order restitution,” must\\n\\nconsider “the amount of the loss sustained by each victim as a result of the offense,” “the\\n\\nfinancial resources of the defendant, the financial needs and earning ability of the defendant\\n\\nand the defendant’s dependents, and such other factors as the court deems appropriate.”\\n\\n§ 3663(a)(1)(B)(i).\\n\\n Nonetheless, “[t]o the extent that the court determines that the complication and\\n\\nprolongation of the sentencing process resulting from the fashioning of an order of\\n\\nrestitution under this section outweighs the need to provide restitution to any victims, the\\n\\ncourt may decline to make such an order.” § 3663(a)(1)(B)(ii). Congress adopted this\\n\\nprovision “to prevent sentencing hearings from becoming prolonged and complicated trials\\n\\non the question of damages owed the victim,” S. Rep. No. 97-532, at 31 (1982), as\\n\\nreprinted in 1982 U.S.C.C.A.N. 2515, 2537, and so “that sentencing courts [do] not\\n\\nbecome embroiled in intricate issues of proof,” 8 United States v. Reifler, 446 F.3d 65, 136\\n\\n\\n 8\\n Several decisions cited herein address the complexity exception under the MVRA,\\nbut they are relevant here. Similar to the VWPA, the MVRA exempts sentencing courts\\nfrom awarding restitution if “determining complex issues of fact related to the cause or\\namount of the victim’s losses would complicate or prolong the sentencing process to a\\ndegree that the need to provide restitution to any victim is outweighed by the burden on the\\nsentencing process.” 18 U.S.C. § 3663A(c)(3)(B) (emphasis added); cf.\\n§ 3663(a)(1)(B)(ii). Because the balancing test required under the complexity exception of\\nthe MVRA is substantially similar to that under the VWPA, the decisions interpreting and\\napplying the MVRA’s complexity exception provide useful guidance in our\\n§ 3663(a)(1)(B)(ii) analysis. See United States v. Randle, 324 F.3d 550, 556 n.3 (7th Cir.\\n 16\\n\\f(2d Cir. 2006). Relying primarily on this rationale, the magistrate judge here held that\\n\\ndetermining restitution would complicate and prolong the sentencing process and thus\\n\\ndenied Brown’s request for restitution.\\n\\n In making this determination, the court abused its discretion because it improperly\\n\\nfailed to articulate the balancing analysis as required by § 3663(a)(1)(B)(ii) when\\n\\nrestitution is denied. A court does not properly discharge its duty to conduct “a balancing\\n\\ntest” under § 3663(a)(1)(B)(ii) unless it expressly “weigh[s] the need to provide restitution\\n\\nto a victim against the burden on the sentencing process posed by determining complex\\n\\nissues of fact.” United States v. Malone, 747 F.3d 481, 486 (7th Cir. 2014); United States\\n\\nv. Gushlak, 728 F.3d 184, 192 (2d Cir. 2013) (“[T]he statute explicitly contemplates that\\n\\nthe district court weigh against the burden of ordering restitution the victims’ interests in\\n\\nreceiving restitution.”). In conducting this balancing test, the court must articulate its\\n\\nanalysis because we require “district courts to make specific fact findings on those matters\\n\\nrelevant to application of the VWPA.” United States v. Bruchey, 810 F.2d 456, 458 (4th\\n\\nCir. 1987). Thus, in applying § 3663(a)(1)(B)(ii), a court must (1) make fact findings\\n\\nspecific to two statutory factors—“the need to provide restitution to a victim,” and “the\\n\\nburden on the sentencing process posed by determining complex issues of fact”—and (2)\\n\\nthen explicitly balance these two factors. Malone, 747 F.3d at 486.\\n\\n\\n\\n\\n2003) (“Because of the similarity of the statutory language in the VWPA and MVRA, court\\ndecisions interpreting the language of the VWPA are helpful in construing the language of\\nthe MVRA.”).\\n 17\\n\\f The magistrate judge acknowledged Brown’s need for restitution and stated, as to\\n\\nhis proffered proof of lost earnings, “I have no reason to not believe Mr. Brown.” J.A. 126.\\n\\nThe court went on to note, though, that it questioned the sufficiency of Brown’s evidence,\\n\\nsaying, “in my opinion there has got to be more than simply the victim’s statement to award\\n\\nrestitution in the amount of $20,000.” J.A. 127. The magistrate judge then noted Brown’s\\n\\nextensive medical expenses—although he did not seek restitution for these—and his\\n\\ndisputed claim for lost earnings, and observed, “this is a forum which is so much less\\n\\nequipped to handle situations like this than a civil proceeding.” J.A. 127.\\n\\n After discussing case law on the difficulty of calculating lost future earnings, the\\n\\ncourt reiterated its concern\\n\\n about not just lost wages, but about future medical bills, future pain and\\n suffering, future emotional distress. In a criminal context the Court will put\\n its foot into the waters of restitution if things are readily and accurately\\n ascertainable uncontested. We are contested here, and that is why this is just\\n so not the forum to be dealing with these kinds of figures.\\n\\nJ.A. 129.\\n\\n The court then quoted the text of § 3663(a)(1)(B)(ii) and concluded:\\n\\n Mr. Brown is not without his day in court. He has a remedy. He has a civil\\n remedy. And to order restitution in the amount that is being requested with\\n the evidence that would give me the level of confidence and comfort in that\\n I am being accurate would, in my opinion, complicate and prolong the\\n sentencing process.\\n . . . I am going to decline to order, as a discretionary condition of\\n probation, restitution in this matter.\\n\\nJ.A. 130.\\n\\n While the court found certain facts relating to each of the statutory factors—the\\n\\nvictim’s need for restitution and the burden imposed on the sentencing court—it failed to\\n\\n 18\\n\\farticulate how it balanced those factors to determine that restitution was unwarranted. By\\n\\nfailing to do so, the court violated its duty under § 3663(a)(1)(B)(ii) to expressly weigh:\\n\\n the burden of adjudicating the restitution issue against the desirability of\\n immediate restitution—or otherwise stated, a weighing of the burden that\\n would be imposed on the court by adjudicating restitution in the criminal\\n case against the burden that would be imposed on the victim by leaving him\\n or her to other available legal remedies.\\n\\nUnited States v. Kones, 77 F.3d 66, 68–69 (3d Cir. 1996). Put another way, the court abused\\n\\nits discretion by failing to state why the burden of complexity or delay in sentencing\\n\\noutweighed Brown’s need for restitution. This abuse of discretion harmed Brown because\\n\\nhe received none of the requested restitution to which he may be entitled under the VWPA.\\n\\nAccordingly, we grant the petition for mandamus, thereby vacating the order denying\\n\\nrestitution, and remand the case for the magistrate judge to conduct and explain on the\\n\\nrecord its balancing analysis in determining whether to award restitution.\\n\\n C.\\n\\n In light of some of the court’s remarks and the parties’ arguments on brief, we will\\n\\nexercise our discretion to address certain issues that are likely to recur upon remand. United\\n\\nStates ex rel. Drakeford v. Tuomey Healthcare Sys., Inc., 675 F.3d 394, 406 (4th Cir. 2012)\\n\\n(“[W]e note that our precedent is clear that we may address issues that are likely to recur\\n\\non remand.”). First, the lower court’s reference to Fountain, 768 F.2d at 801–02, and its\\n\\nexplanation of the difficulty in calculating restitution for future lost earnings, appears to\\n\\nhave limited applicability when, as here, the requested restitution is limited to past lost\\n\\nearnings. While projecting future losses is inherently speculative, the same concern is\\n\\n\\n\\n 19\\n\\fabsent for earnings already lost. For that reason, Fountain should not be a guiding star for\\n\\nthe lower court’s balancing analysis on remand.\\n\\n Next, Brown asserts that the sentencing court erroneously considered the\\n\\navailability of a civil remedy in deciding whether to award restitution. This argument lacks\\n\\nmerit. Other circuits have concluded that in determining whether to deny restitution under\\n\\n§ 3663(a)(1)(B)(ii), a court may consider the availability of other legal remedies. See\\n\\nKones, 77 F.3d at 68–69 (holding that in applying § 3663(a)(1)(B)(ii), a court must\\n\\nconsider “the burden that would be imposed on the victim by leaving him or her to other\\n\\navailable legal remedies”). Specifically, the Tenth Circuit in United States v. Gallant\\n\\nobserved the following:\\n\\n While the availability of other relief is deemed irrelevant to the process of\\n calculating the amount of a restitution award [under the MVRA], it is not\\n necessarily irrelevant to the availability of such an award under § 3663A. The\\n existence of pending civil litigation may in some cases be relevant to the\\n balancing test established by [the MVRA’s] complexity exception.\\n\\n537 F.3d 1202, 1254 (10th Cir. 2008) (final emphasis added). We agree with the Tenth\\n\\nCircuit’s reasoning and hold that, in considering and balancing the statutory factors under\\n\\n§ 3663(a)(1)(B)(ii), the court may consider, among other factors, the availability of\\n\\nalternative civil remedies for Brown’s past lost earnings. That said, the court on remand\\n\\n“should not place great weight on this factor.” Id. It is merely one factor for the court to\\n\\nbalance and should not be the controlling factor in and of itself. Rather, “the primary\\n\\nconsideration” of the complexity exception “is the burden that calculating restitution would\\n\\nplace on the sentencing process.” Id.\\n\\n\\n\\n 20\\n\\f Last, the court below referenced Brown’s need for compensation for his medical\\n\\nexpenses despite the fact that Brown specifically denied any claim to medical expenses and\\n\\nrequested restitution only for past lost earnings. In performing its § 3663(a)(1)(B)(ii)\\n\\nbalancing analysis, the court should confine its review to what Brown requested—past lost\\n\\nearnings. Any consideration of unclaimed medical expenses is irrelevant. 9\\n\\n\\n\\n III.\\n\\n For the reasons stated above, Brown’s petition for a writ of mandamus is granted\\n\\nand the case is remanded to the lower court for further proceedings consistent with this\\n\\nopinion.\\n\\n PETITION GRANTED\\n\\n\\n\\n\\n 9\\n We express no view, and take no position, on whether Brown’s motion for\\nrestitution should be granted. That matter is left to the lower court to determine in a manner\\nconsistent with this opinion on remand.\\n 21\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4420632/\", \"author_raw\": \"AGEE, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"MOTZ"},"judge2":{"kind":"string","value":"AGEE"},"judge3":{"kind":"string","value":"WYNN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4643379/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: In RE: Carlos BROWN, Petitioner.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-07-26\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1527\n\n\n\nIn re: CARLOS BROWN,\n\n Petitioner.\n\n\nOn Petition for Writ of Mandamus from the United States District Court for the District of\nMaryland, at Greenbelt. (8:17-po-07283-TMD-1)\n\n\nArgued: March 20, 2019 Decided: July 26, 2019\n\n\nBefore MOTZ, AGEE and WYNN, Circuit Judges.\n\n\nPetition for writ of mandamus granted by published opinion. Judge Agee wrote the opinion,\nin which Judge Motz and Judge Wynn joined.\n\n\nARGUED: Victor Darrel Stone, MARYLAND CRIME VICTIMS’ RESOURCE\nCENTER, INC., Upper Marlboro, Maryland, for Petitioner. Jason Daniel Medinger,\nOFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland; Cullen Oakes\nMacbeth, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for\nRespondents. ON BRIEF: Russell P. Butler, MARYLAND CRIME VICTIMS’\nRESOURCE CENTER, INC., Upper Marlboro, Maryland, for Petitioner. Robert K. Hur,\nUnited States Attorney, Jane F. Nathan, Assistant United States Attorney, OFFICE OF\nTHE UNITED STATES ATTORNEY, Baltimore, Maryland, for Respondent United\nStates of America. James Wyda, Federal Public Defender, Baltimore, Maryland, Paresh\nS. Patel, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC\nDEFENDER, Greenbelt, Maryland, for Respondent Joyce Boone.\n\fAGEE, Circuit Judge:\n\n In June 2017, Joyce Boone injured Carlos Brown in a car accident she caused while\n\ndriving under the influence of alcohol. She pleaded guilty to three traffic violations before\n\nthe United States magistrate judge and was sentenced to two years’ probation. Brown asked\n\nthe court to order restitution as a condition of Boone’s probation, but his request was\n\ndenied. He now petitions this Court for a writ of mandamus pursuant to 18 U.S.C.\n\n§ 3771(d)(3). For the reasons stated below, we grant the petition and remand the case.\n\n\n\n I.\n\n A.\n\n Brown owned and operated his own electrician’s business at the time of the\n\naccident. In June 2017, he was riding a motorcycle on a federal roadway in Maryland when\n\nBoone ran a red light while operating her vehicle under the influence of alcohol. She\n\ncollided with Brown, leaving him with serious injuries that required at least seven surgeries\n\nwithin one year of the accident. Brown had metal rods installed in various parts of his body\n\nand needed assistive devices to walk. Because of these injuries, Brown alleged that he\n\nbecame unable to work as an electrician or perform daily activities and was “struggling\n\nphysically, mentally, emotionally, [and] financially.” J.A. 39.\n\n\n\n\n 2\n\f Boone was later charged with six violations of various federal traffic regulations in\n\nthe United States District Court for the District of Maryland. 1 She reached a plea agreement\n\nwith the Government and pleaded guilty to three offenses 2: (1) driving with a blood alcohol\n\nconcentration of .08 or above in violation of 36 C.F.R. § 4.23(a)(2); (2) failing to obey a\n\ntraffic control device in violation of 36 C.F.R. § 4.12; and (3) unsafely operating a motor\n\nvehicle in violation of 36 C.F.R. § 4.22(b)(1). Under the terms of the plea agreement, the\n\nGovernment agreed to recommend a sentence of probation but make no recommendation\n\nregarding Brown’s claim for restitution as part of Boone’s sentence. The parties proceeded\n\nto a plea hearing, 3 during which the court conducted a plea colloquy and accepted Boone’s\n\nguilty plea.\n\n At the hearing, Brown requested that the court order restitution in the amount of\n\n$18,976 as a condition of Boone’s probation. Specifically, Brown sought restitution for the\n\ndeductible of $250 he paid to his vehicle insurance company and his estimated lost wages\n\nfor the past seven months, which he calculated at an hourly rate of $22, less the settlement\n\namount of $30,000 he received from his insurer. To support his restitution request, Brown\n\n\n\n 1\n A violation of the federal traffic regulations is punishable for a term of\nimprisonment not exceeding six months, 36 C.F.R. § 1.3; see 18 U.S.C. § 1865(a), and thus\nis a Class B misdemeanor, 18 U.S.C. § 3559 (a)(7).\n 2\n Boone’s proceedings were before the magistrate judge because she was charged\nwith petty offenses, see 18 U.S.C. § 19 (identifying a Class B misdemeanor as a “petty\noffense”), and magistrate judges have authority “to dispose of cases involving petty\noffenses . . . committed by both youth offenders and adults,” United States v. Snow, 748\nF.2d 928, 931 (4th Cir. 1984).\n 3\n The magistrate judge set a bench trial for February 1, 2018. On that day, the\nGovernment notified the court that the parties reached a plea agreement, which converted\nthe scheduled trial into a plea hearing.\n 3\n\fprovided personal and familial statements about his injuries and an October 2017 letter\n\nfrom his physician stating that he would not be able to work full-time for one to one-and-\n\na-half years after the accident. Brown explicitly declined to seek restitution for his medical\n\nbills or future lost wages.\n\n Boone agreed that the $250 deductible was an appropriate part of a restitution award\n\nbut objected to Brown’s claim for past lost wages because she contended his supporting\n\nevidence was speculative and not reliable. She asked the court to order a restitution award\n\nof $250, or, in the alternative, schedule a hearing as to any other proper amounts, although\n\nshe believed the issue of restitution “would all get flushed out in the civil proceedings\n\nthrough discovery where it should be flushed out. Not here [in] a criminal magistrate\n\ncourt.” J.A. 52. At that point, the court noted that Brown “got serious injuries [and] has had\n\nserious medical injuries in the past. It sounds like more surgery is down the road, lost\n\nwages, children. [T]his is not something I can decide today.” J.A. 60–61. The court\n\ndeclined to order restitution at that time, stating that Brown’s case was “extraordinarily\n\nunusual,” J.A. 60, but ordered a presentence report directing the probation officer to\n\nexamine the issue of restitution. The court scheduled a sentencing hearing for April 2018.\n\n Prior to the sentencing hearing, Brown filed an amended request seeking restitution\n\nin the amount of $19,040.32 solely to cover his past lost wages. To support the request, he\n\nsubmitted his 2017 federal tax return, his own affidavit detailing his physical struggles, and\n\nthe letter from his physician. In the letter, the doctor noted that Brown was using a walker\n\nand needed physical therapy twice per week for the next six months. The physician further\n\nstated “[i]f he is able to resume his regular full-time work as an electrician, it will likely be\n\n 4\n\f1[ to ]1-1/2 years from the time of his injury.” J.A. 75. There was no evidence offered as\n\nto whether Brown could work part-time as an electrician or was capable of maintaining\n\nsome other form of full- or part-time employment.\n\n At the sentencing hearing, Brown reiterated his request for restitution, stating that\n\nhe would not pursue any civil action against Boone. She continued to oppose the request,\n\narguing that the court should “stay out of it” because Brown’s restitution request “is [better\n\nsuited for] civil litigation.” J.A. 109. Further, Boone challenged the reliability of the\n\nOctober 2017 letter from Brown’s doctor and questioned why Brown could not find other\n\nemployment and thereby mitigate damages. She also argued that the court may not award\n\nrestitution here because her conduct underlying the offenses to which she pleaded guilty\n\ndid not cause Brown’s injury. 4 Boone asked the court to place her on one year of probation\n\nand not to order restitution as a condition of probation.\n\n B.\n\n The court sentenced Boone to two years’ probation but declined to order restitution,\n\nlargely for two reasons: Brown lacked sufficient evidence to support his restitution request\n\nand the sentencing forum was unsuitable for determining the requested restitution. First,\n\neven though the court acknowledged that it had discretion to order restitution and “no\n\nreason to not believe Mr. Brown,” J.A. 126, it rejected Brown’s request, stating:\n\n although there is evidence of lost wages through Mr. Brown’s own testimony\n and tax return, in my opinion there has got to be more than simply the\n victim’s statement to award restitution in the amount of $20,000. . . . . [T]his\n\n\n 4\n Boone has abandoned this claim on appeal and does not contest that her conduct\nunderlying the convicted offenses did cause Brown’s injury.\n 5\n\f is misdemeanor court. This court generally does not deal with restitution, and\n if we are going to deal with restitution, it is not in this amount.\n\nJ.A. 127. The court also discussed Brown’s future medical bills that were approximately a\n\n“half a million dollars,” J.A. 128, although Brown did not request restitution for those\n\nexpenses.\n\n Next, based on the proffered evidence and Boone’s opposition, the court determined\n\nthat under the circumstances of this case it was not the appropriate forum to determine\n\nrestitution and referenced United States v. Fountain in support of its decision. See 768 F.2d\n\n790, 801–02 (7th Cir. 1985) (upholding the district court’s decision not to award restitution\n\nfor future lost wages because “the calculation of lost future earnings involves the difficult\n\nproblem of translating an uncertain future stream of earnings into a present value”). The\n\ncourt then stated, “[i]n a criminal context the Court will put its foot into the waters of\n\nrestitution if things are readily and accurately ascertainable uncontested. We are contested\n\nhere, and that is why this is just so not the forum to be dealing with these kinds of figures.”\n\nJ.A. 129. The court also noted that “to order restitution in the amount that is being requested\n\nwith the evidence that would give me the level of confidence and comfort in that I am being\n\naccurate would, in my opinion, complicate and prolong the sentencing process.” J.A. 130.\n\nThe court advised Brown to seek restitution in a civil suit so that he could conduct\n\ndiscovery and deal with “big figures.” J.A. 129.\n\n\n\n\n 6\n\f From the denial of his request for restitution, Brown timely petitions for a writ of\n\nmandamus as authorized by the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771. 5\n\nBoone opposes the petition, and the Government, in accordance with its obligation under\n\nthe plea agreement, takes no position either for or against a restitution award. We have\n\njurisdiction under § 3771(d)(3) and grant the petition for the reasons that follow. 6\n\n\n\n II.\n\n On appeal, Boone makes two arguments: that (1) we lack subject matter jurisdiction\n\nto review Brown’s petition and (2) even if we have jurisdiction, the petition lacks merit.\n\nWe examine and reject each argument in turn.\n\n A.\n\n Section 3771(d)(3) governs our jurisdiction over Brown’s petition, as it allows a\n\ncrime victim to “petition the court of appeals for a writ of mandamus” if “the district court\n\ndenies the [restitution request].” § 3771(d)(3) (emphasis added). Boone asserts that the\n\nstatute does not authorize our review of Brown’s petition because it challenges the decision\n\nmade by a magistrate judge, not a district court judge. She argues that by using the specific\n\n\n\n 5\n The CVRA “protect[s] victims and guarantee[s] them some involvement in the\ncriminal justice process” by providing them with “notice of any proceedings, the right to\nattend those proceedings, the right to confer with the prosecutor, and the right to be\n‘reasonably heard at any public proceeding in the district court involving release, plea,\nsentencing, or parole proceeding.’” United States v. Moussaoui, 483 F.3d 220, 234 (4th\nCir. 2007) (quoting 18 U.S.C. § 3771(a)).\n 6\n We note that despite Boone’s concession that restitution for the $250 insurance\ndeductible was appropriate, the court declined to award that amount. Brown makes no\nclaim on appeal that the failure to make that award was erroneous.\n 7\n\fterm “district court,” § 3771(d)(3) “only authorizes a victim to challenge a district court’s\n\ndenial of a restitution request—not a magistrate court’s denial of the same.” Response Br.\n\n12. In effect, Boone argues that a magistrate court does not fall within the meaning of\n\n“district court” under § 3771(d)(3) because it is separate and different from a district court.\n\n Arguing that Congress’ choice of the term “district court” in § 3771(d)(3) precludes\n\nour review of magistrate judges’ decisions, Boone cites to 18 U.S.C. § 3402 in support.\n\nThis general appeal statute states, “[i]n all cases of conviction by a United States magistrate\n\njudge an appeal of right shall lie from the judgment of the magistrate judge to a judge of\n\nthe district court of the district in which the offense was committed.” § 3402. Boone asserts\n\nthat only the Government can appeal a magistrate judge’s denial of a restitution request to\n\na district judge under § 3402 and, if the district judge denies the appeal, can proceed to a\n\ncourt of appeals under § 3771(d)(3). According to Boone, Congress intentionally\n\ndistinguished the magistrate judge from the district judge in § 3402 and, had it intended a\n\ncrime victim to have any rights to directly petition a court of appeals for a writ of\n\nmandamus based on a magistrate judge’s denial of restitution, Congress would have used\n\nthe term “magistrate” in § 3771(d)(3). Thus, in Boone’s view, where the Government takes\n\nno position on a petition for a writ of mandamus and the district court judge has not\n\nreviewed the magistrate judge’s denial, we lack subject matter jurisdiction to consider the\n\npetition. We disagree.\n\n Boone’s argument is erroneous for at least three reasons. First, her reading of\n\n“district court” in § 3771(d)(3) is inconsistent with the relevant statutory definitions. Under\n\n18 U.S.C. § 3001, the statutes in Part II of Title 18, including § 3771, are governed by the\n\n 8\n\fapplicable definitional rules of the Federal Rules of Criminal Procedure. Pursuant to Rule\n\n1, “‘[c]ourt’ means a federal judge performing functions authorized by law.” Fed. R. Crim.\n\nP. 1(b)(2). “‘Federal judge,” in turn, is defined to include “a magistrate judge.” Fed. R.\n\nCrim. P. 1(b)(3)(B). The Advisory Committee intentionally crafted this definition to\n\n“reflect[] the current understanding that magistrate judges act as the ‘court’ in many\n\nproceedings” because it found the term “court’s” synonymous use with “‘district judge’”\n\nto be “misleading or unduly narrow” and not to “cover the many functions performed by\n\nmagistrate judges.” Fed. R. Crim. P. 1(b)(2) advisory committee’s note to 2002\n\namendment. This principle must be incorporated into the definition of “district court” in\n\n§ 3771 because Rule 1 governs the statute’s definitions. See id. Thus, by definition, a\n\n“district court” under § 3771(d)(3) includes a magistrate judge. Boone’s argument ignores\n\nboth the definitional structure for § 3771 imposed through § 3001 and Congress’ decision\n\nnot to alter that structure for purposes of § 3771.\n\n Second, Boone misstates the scope of § 3402, which deals with “an appeal of right”\n\n“from the judgment of the magistrate judge to a judge of the district court” in “all cases of\n\nconviction by a United States magistrate judge.” 18 U.S.C. § 3402. The case before us is\n\nnot such an appeal. It is a fundamentally different proceeding by the crime victim—not the\n\ndefendant—and thus does not fall under § 3402 as an appeal from a “case[ ] of conviction\n\nby a United States magistrate judge.” § 3402; see In re Murphy-Brown, LLC, 907 F.3d 788,\n\n793 (4th Cir. 2018) (“[W]rits of mandamus function differently from ordinary\n\nappeals. . . .”).\n\n\n\n 9\n\f Under the plain terms of § 3771(d)(3), it is the “movant” who “may petition the\n\ncourt of appeals for a writ of mandamus” “[i]f the district court denies the relief sought.”\n\n§ 3771(d)(3). Brown is the “movant” under § 3771(d)(3) and is clearly accorded the right\n\nto petition under the statute. Congress’ specific grant of this right to a “movant” is unrelated\n\nto any appeal under § 3402 and is plainly not a right granted to a defendant or limited to\n\nthe Government. Congress has made this distinction clear by enacting § 3771(d)(4), which\n\n“simultaneously affords the government with the ability to obtain ordinary appellate review\n\nof the [restitution] decision.” See In re Antrobus, 519 F.3d 1123, 1129 (10th Cir. 2008). By\n\nexpressly providing only the Government, not a “movant,” with ordinary direct appeal\n\nrights, Congress has distinguished the appellate rights for mandamus review afforded to a\n\n“movant” under § 3771(d)(3) from the ordinary appeal rights afforded to a party or the\n\nGovernment under § 3771(d)(4) which would be subject to § 3402. See Sosa v. Alvarez-\n\nMachain, 542 U.S. 692, 711 n.9 (2004) (“[W]hen the legislature uses certain language in\n\none part of the statute and different language in another, the court assumes different\n\nmeanings were intended.” (internal quotation marks omitted)).\n\n As a result, Boone’s position simply ignores Congress’ specific choice of “a\n\nmandamus petition [to a court of appeals] as the appropriate vehicle for appellate review\n\nof an order denying a crime victim’s assertion of a right protected thereunder.” In re Doe,\n\n264 F. App’x 260, 262 (4th Cir. 2007); see Fed. R. Crim. P. 60(b)(5) (stating that a crime\n\nvictim may move to reopen a plea or sentence if, among other things, “the victim petitions\n\nthe court of appeals for a writ of mandamus within 10 days after the denial, and the writ is\n\ngranted”); United States v. Monzel, 641 F.3d 528, 540 (D.C. Cir. 2011) (“Since the\n\n 10\n\fenactment of the CVRA, every circuit . . . has held that mandamus is a crime victim’s only\n\nrecourse for challenging a restitution order”).\n\n Brown, as the victim, has no right to contest the propriety of Boone’s conviction.\n\nSee United States v. Aguirre-Gonzalez, 597 F.3d 46, 53 (1st Cir. 2010) (“[C]rime victims\n\nare not parties to a criminal sentencing proceeding. . . . . Thus, the baseline rule is that\n\ncrime victims, as non-parties, may not appeal a defendant’s criminal sentence.”). Instead,\n\nby petitioning this Court for a writ of mandamus, Brown is asserting his separate statutory\n\nright to restitution which Congress has afforded him under the CVRA. See id. at 54\n\n(holding that although “crime victims have no right to directly appeal a defendant’s\n\ncriminal sentence,” “the CVRA expressly provides [them] with a limited avenue to\n\nchallenge the restitution component of a defendant’s sentence through a petition for a writ\n\nof mandamus”). Brown’s § 3771(d)(3) petition thus has no relation to an appeal under\n\n§ 3402 and the distinctions that statute draws between a magistrate judge and a district\n\njudge do not apply here.\n\n Last, Boone’s interpretation of § 3771(d)(3) creates a conflict with other statutes\n\ngoverning magistrate judges and ignores Congress’ policy choices behind those statutes.\n\nHer approach violates canons of statutory interpretation that require courts to “reflect,\n\nrather than distort, the policy choices that elected representatives have made” in\n\ninterpreting statutes, Almendarez-Torres v. United States, 523 U.S. 224, 238 (1998), and\n\nto avoid “reading conflicts into statutes,” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1630\n\n(2018). In following these doctrines, we must reject Boone’s argument.\n\n\n\n 11\n\f Our analysis is derived from two statutes under the Federal Magistrates Act, 28\n\nU.S.C. § 636, and 18 U.S.C. § 3401, which create and govern the office of magistrate judge\n\nand demonstrate a magistrate judge’s role as an arm of the district court. The Federal\n\nMagistrates Act invests certain judicial powers in magistrate judges, including the powers\n\n“to enter a sentence for a petty offense” and “to conduct trials under section 3401, title 18,\n\nUnited States Code, in conformity with and subject to the limitations of that section”\n\n“within the district in which sessions are held by the court that appointed the magistrate\n\njudge.” 28 U.S.C. § 636(a). In turn, § 3401(b) provides, “[a]ny person charged with a\n\nmisdemeanor, other than a petty offense may elect . . . to be tried before a district judge for\n\nthe district in which the offense was committed.” 18 U.S.C. § 3401(b) (emphasis added).\n\nThis section indicates that a defendant who is charged with a petty offense, like Boone,\n\nmay not elect to be tried before a district judge and must proceed before a magistrate judge\n\nunless a district judge chooses to preside in the case.\n\n This statutory scheme reflects “Congress’ perception that the assistance of federal\n\nmagistrates was a necessary measure to ensure that the already severe pressures on the\n\nfederal district courts do not become overwhelming.” United States v. Raddatz, 447 U.S.\n\n667, 713 (1980) (Marshall, J., dissenting). By enacting the Federal Magistrates Act,\n\n The Congress . . . manifested its intention to create a judicial officer and to\n invest in him the power to furnish assistance to a judge of the district court.\n The magistrate was given jurisdiction over petty criminal offenses and the\n Act also gave each district court the discretionary power to use the magistrate\n to assist a district court judge . . .\n ....\n [T]he Congress clearly indicated its intent that the magistrate should be a\n judicial officer whose purpose was to assist the district judge to the end that\n the district judge could have more time to preside at the trial of cases having\n\n 12\n\f been relieved of part of his duties which required the judge to personally hear\n each and every pretrial motion or proceeding necessary to prepare a case for\n trial.\n\nH.R. Rep. No. 94-1609, at 6 (1976), as reprinted in 1976 U.S.C.C.A.N. 6162, 6166\n\n(emphasis added). Pursuant to this clear congressional intent, magistrate judges “are\n\nappointed and subject to removal by Article III judges,” Peretz v. United States, 501 U.S.\n\n923, 937 (1991), and “district judges retain plenary authority over when, what, and how\n\nmany pretrial matters are assigned to magistrates,” Raddatz, 447 U.S. at 685 (Blackmun,\n\nJ., concurring). Thus, magistrate judges, as “competent and impartial assistants” of district\n\njudges, are an integral part of a district court. Id. at 686.\n\n Based on this legislative history and the statutory scheme governing magistrate\n\njudges, we conclude that a magistrate court is included within the term “district court”\n\nunder § 3771(d)(3). See Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 222 (2008) (noting\n\nthat courts’ construction of a statutory term must “ensure that the statutory scheme is\n\ncoherent and consistent”). Unlike the specific distinction Congress has drawn between the\n\nmagistrate judge and the district court judge in § 3402, Congress has made no such\n\ndistinction in § 3771 regarding petitions for a writ of mandamus. We see no basis, sub\n\nsilentio, to draw such a distinction in the absence of a specific direction from Congress. To\n\ndo so would create the absurd result that under § 3771(d)(3), a crime victim could petition\n\nfrom the denial of restitution if a district judge made the determination but could not do so\n\nif a magistrate judge made the same decision.\n\n Boone’s reading requires that when a magistrate judge declines to award restitution\n\npursuant to § 636(a) and § 3401 in a petty offense case, a victim cannot exercise his\n\n 13\n\fstatutory rights under § 3771(d)(3) to seek appellate review of that decision. Boone points\n\nto no legal authority other than her tortured interpretation of § 3771(d)(3), which\n\neffectively negates the specific rights of crime victims guaranteed by the CVRA.\n\nConstruing the statutes as Boone proposes directly contradicts Congress’ express,\n\nunambiguous intent that regardless of whether the underlying offense is a petty offense,\n\n“[t]he crime victim or the crime victim’s lawful representative [as well as] the attorney for\n\nthe Government may assert” the rights to restitution provided under § 3771. § 3771(d)(1)\n\n(emphasis added).\n\n For all these reasons, we reject Boone’s argument and hold that we have subject\n\nmatter jurisdiction over Brown’s petition under § 3771(d)(3).\n\n B.\n\n Next, we address Boone’s argument that the petition lacks merit. In doing so, we\n\nreview the lower court’s restitution decision for abuse of discretion. United States v.\n\nLeftwich, 628 F.3d 665, 667 (4th Cir. 2010).\n\n Before analyzing the merits of the petition, we review the scope of the applicable\n\nrestitution statutes because “federal courts do not have the inherent authority to order\n\nrestitution, but must rely on a statutory source” to do so. United States v. Cohen, 459 F.3d\n\n490, 498 (4th Cir. 2006). Relevant here are two restitution enactments: the Victim and\n\nWitness Protection Act (“VWPA”), 18 U.S.C. § 3663, and the Mandatory Victims\n\nRestitution Act (“MVRA”), 18 U.S.C. § 3663A. 7 These statutes “impose different\n\n\n 7\n The CVRA is substantively different from the VWPA and the MVRA in that it\n“makes available to crime victims, among other things, procedural mechanisms to assert\n 14\n\frequirements on the district court when it determines an award of restitution.” Leftwich,\n\n628 F.3d at 667. The key difference between them is that “an award of restitution under\n\nthe VWPA is not mandatory,” whereas “the MVRA mandates that the sentencing court\n\norder restitution in the full amount of the victim’s loss when the defendant has been\n\nconvicted of certain specified offenses.” Id. at 668. As the parties concede and the lower\n\ncourt correctly held, the VWPA governs Brown’s restitution request because Boone’s\n\noffenses do not qualify as offenses that warrant mandatory restitution under the MVRA.\n\nCf. 18 U.S.C. § 3663A(a)(1), (c).\n\n To analyze the applicable restitution statutes, we first examine whether the\n\nsentencing court may award restitution under § 3563(b)(2) because Brown asked that\n\nrestitution be imposed as a condition of Boone’s probation. Under this provision, a court\n\nhas discretion to order “restitution to a victim of the offense under section 3556” as a\n\ncondition of probation. § 3563(b)(2). In turn, § 3556 states that “[t]he court, in imposing a\n\nsentence on a defendant who has been found guilty of an offense . . . may order restitution\n\nin accordance with section 3663” and follow the procedures set forth in § 3664. § 3556.\n\n An award of restitution under § 3663 is discretionary, as this section states that the\n\ncourt “may order . . . that the defendant make restitution to any victim of [the] offense.”\n\n\nsubstantive rights in a defendant’s criminal proceedings and on appeal, including rights as\nprovided in the VWPA and MVRA.” Aguirre-Gonzalez, 597 F.3d at 48 n.2; see United\nStates v. Kovall, 857 F.3d 1060, 1065 (9th Cir. 2017) (“The CVRA provides mechanisms\nfor enforcing a victim’s rights under the Act.”). Thus, the CVRA “provide[s] a right to\npetition the court of appeals for mandamus, grant[s] the government express power to\nassert crime victims’ rights on appeal, [and] set[s] forth procedures by which victims may\nmove to reopen sentences,” whereas the VWPA and the MVRA do not. See Monzel, 641\nF.3d at 543–44.\n 15\n\f§ 3663(a)(1)(A) (emphasis added). The court’s discretion under the VWPA, however, is\n\nnot unfettered; instead, “[d]iscretion in ordering restitution is circumscribed by the\n\nprocedural and substantive protections” of the statute. Leftwich, 628 F.3d at 667 (internal\n\nquotation marks omitted). The court, in “determining whether to order restitution,” must\n\nconsider “the amount of the loss sustained by each victim as a result of the offense,” “the\n\nfinancial resources of the defendant, the financial needs and earning ability of the defendant\n\nand the defendant’s dependents, and such other factors as the court deems appropriate.”\n\n§ 3663(a)(1)(B)(i).\n\n Nonetheless, “[t]o the extent that the court determines that the complication and\n\nprolongation of the sentencing process resulting from the fashioning of an order of\n\nrestitution under this section outweighs the need to provide restitution to any victims, the\n\ncourt may decline to make such an order.” § 3663(a)(1)(B)(ii). Congress adopted this\n\nprovision “to prevent sentencing hearings from becoming prolonged and complicated trials\n\non the question of damages owed the victim,” S. Rep. No. 97-532, at 31 (1982), as\n\nreprinted in 1982 U.S.C.C.A.N. 2515, 2537, and so “that sentencing courts [do] not\n\nbecome embroiled in intricate issues of proof,” 8 United States v. Reifler, 446 F.3d 65, 136\n\n\n 8\n Several decisions cited herein address the complexity exception under the MVRA,\nbut they are relevant here. Similar to the VWPA, the MVRA exempts sentencing courts\nfrom awarding restitution if “determining complex issues of fact related to the cause or\namount of the victim’s losses would complicate or prolong the sentencing process to a\ndegree that the need to provide restitution to any victim is outweighed by the burden on the\nsentencing process.” 18 U.S.C. § 3663A(c)(3)(B) (emphasis added); cf.\n§ 3663(a)(1)(B)(ii). Because the balancing test required under the complexity exception of\nthe MVRA is substantially similar to that under the VWPA, the decisions interpreting and\napplying the MVRA’s complexity exception provide useful guidance in our\n§ 3663(a)(1)(B)(ii) analysis. See United States v. Randle, 324 F.3d 550, 556 n.3 (7th Cir.\n 16\n\f(2d Cir. 2006). Relying primarily on this rationale, the magistrate judge here held that\n\ndetermining restitution would complicate and prolong the sentencing process and thus\n\ndenied Brown’s request for restitution.\n\n In making this determination, the court abused its discretion because it improperly\n\nfailed to articulate the balancing analysis as required by § 3663(a)(1)(B)(ii) when\n\nrestitution is denied. A court does not properly discharge its duty to conduct “a balancing\n\ntest” under § 3663(a)(1)(B)(ii) unless it expressly “weigh[s] the need to provide restitution\n\nto a victim against the burden on the sentencing process posed by determining complex\n\nissues of fact.” United States v. Malone, 747 F.3d 481, 486 (7th Cir. 2014); United States\n\nv. Gushlak, 728 F.3d 184, 192 (2d Cir. 2013) (“[T]he statute explicitly contemplates that\n\nthe district court weigh against the burden of ordering restitution the victims’ interests in\n\nreceiving restitution.”). In conducting this balancing test, the court must articulate its\n\nanalysis because we require “district courts to make specific fact findings on those matters\n\nrelevant to application of the VWPA.” United States v. Bruchey, 810 F.2d 456, 458 (4th\n\nCir. 1987). Thus, in applying § 3663(a)(1)(B)(ii), a court must (1) make fact findings\n\nspecific to two statutory factors—“the need to provide restitution to a victim,” and “the\n\nburden on the sentencing process posed by determining complex issues of fact”—and (2)\n\nthen explicitly balance these two factors. Malone, 747 F.3d at 486.\n\n\n\n\n2003) (“Because of the similarity of the statutory language in the VWPA and MVRA, court\ndecisions interpreting the language of the VWPA are helpful in construing the language of\nthe MVRA.”).\n 17\n\f The magistrate judge acknowledged Brown’s need for restitution and stated, as to\n\nhis proffered proof of lost earnings, “I have no reason to not believe Mr. Brown.” J.A. 126.\n\nThe court went on to note, though, that it questioned the sufficiency of Brown’s evidence,\n\nsaying, “in my opinion there has got to be more than simply the victim’s statement to award\n\nrestitution in the amount of $20,000.” J.A. 127. The magistrate judge then noted Brown’s\n\nextensive medical expenses—although he did not seek restitution for these—and his\n\ndisputed claim for lost earnings, and observed, “this is a forum which is so much less\n\nequipped to handle situations like this than a civil proceeding.” J.A. 127.\n\n After discussing case law on the difficulty of calculating lost future earnings, the\n\ncourt reiterated its concern\n\n about not just lost wages, but about future medical bills, future pain and\n suffering, future emotional distress. In a criminal context the Court will put\n its foot into the waters of restitution if things are readily and accurately\n ascertainable uncontested. We are contested here, and that is why this is just\n so not the forum to be dealing with these kinds of figures.\n\nJ.A. 129.\n\n The court then quoted the text of § 3663(a)(1)(B)(ii) and concluded:\n\n Mr. Brown is not without his day in court. He has a remedy. He has a civil\n remedy. And to order restitution in the amount that is being requested with\n the evidence that would give me the level of confidence and comfort in that\n I am being accurate would, in my opinion, complicate and prolong the\n sentencing process.\n . . . I am going to decline to order, as a discretionary condition of\n probation, restitution in this matter.\n\nJ.A. 130.\n\n While the court found certain facts relating to each of the statutory factors—the\n\nvictim’s need for restitution and the burden imposed on the sentencing court—it failed to\n\n 18\n\farticulate how it balanced those factors to determine that restitution was unwarranted. By\n\nfailing to do so, the court violated its duty under § 3663(a)(1)(B)(ii) to expressly weigh:\n\n the burden of adjudicating the restitution issue against the desirability of\n immediate restitution—or otherwise stated, a weighing of the burden that\n would be imposed on the court by adjudicating restitution in the criminal\n case against the burden that would be imposed on the victim by leaving him\n or her to other available legal remedies.\n\nUnited States v. Kones, 77 F.3d 66, 68–69 (3d Cir. 1996). Put another way, the court abused\n\nits discretion by failing to state why the burden of complexity or delay in sentencing\n\noutweighed Brown’s need for restitution. This abuse of discretion harmed Brown because\n\nhe received none of the requested restitution to which he may be entitled under the VWPA.\n\nAccordingly, we grant the petition for mandamus, thereby vacating the order denying\n\nrestitution, and remand the case for the magistrate judge to conduct and explain on the\n\nrecord its balancing analysis in determining whether to award restitution.\n\n C.\n\n In light of some of the court’s remarks and the parties’ arguments on brief, we will\n\nexercise our discretion to address certain issues that are likely to recur upon remand. United\n\nStates ex rel. Drakeford v. Tuomey Healthcare Sys., Inc., 675 F.3d 394, 406 (4th Cir. 2012)\n\n(“[W]e note that our precedent is clear that we may address issues that are likely to recur\n\non remand.”). First, the lower court’s reference to Fountain, 768 F.2d at 801–02, and its\n\nexplanation of the difficulty in calculating restitution for future lost earnings, appears to\n\nhave limited applicability when, as here, the requested restitution is limited to past lost\n\nearnings. While projecting future losses is inherently speculative, the same concern is\n\n\n\n 19\n\fabsent for earnings already lost. For that reason, Fountain should not be a guiding star for\n\nthe lower court’s balancing analysis on remand.\n\n Next, Brown asserts that the sentencing court erroneously considered the\n\navailability of a civil remedy in deciding whether to award restitution. This argument lacks\n\nmerit. Other circuits have concluded that in determining whether to deny restitution under\n\n§ 3663(a)(1)(B)(ii), a court may consider the availability of other legal remedies. See\n\nKones, 77 F.3d at 68–69 (holding that in applying § 3663(a)(1)(B)(ii), a court must\n\nconsider “the burden that would be imposed on the victim by leaving him or her to other\n\navailable legal remedies”). Specifically, the Tenth Circuit in United States v. Gallant\n\nobserved the following:\n\n While the availability of other relief is deemed irrelevant to the process of\n calculating the amount of a restitution award [under the MVRA], it is not\n necessarily irrelevant to the availability of such an award under § 3663A. The\n existence of pending civil litigation may in some cases be relevant to the\n balancing test established by [the MVRA’s] complexity exception.\n\n537 F.3d 1202, 1254 (10th Cir. 2008) (final emphasis added). We agree with the Tenth\n\nCircuit’s reasoning and hold that, in considering and balancing the statutory factors under\n\n§ 3663(a)(1)(B)(ii), the court may consider, among other factors, the availability of\n\nalternative civil remedies for Brown’s past lost earnings. That said, the court on remand\n\n“should not place great weight on this factor.” Id. It is merely one factor for the court to\n\nbalance and should not be the controlling factor in and of itself. Rather, “the primary\n\nconsideration” of the complexity exception “is the burden that calculating restitution would\n\nplace on the sentencing process.” Id.\n\n\n\n 20\n\f Last, the court below referenced Brown’s need for compensation for his medical\n\nexpenses despite the fact that Brown specifically denied any claim to medical expenses and\n\nrequested restitution only for past lost earnings. In performing its § 3663(a)(1)(B)(ii)\n\nbalancing analysis, the court should confine its review to what Brown requested—past lost\n\nearnings. Any consideration of unclaimed medical expenses is irrelevant. 9\n\n\n\n III.\n\n For the reasons stated above, Brown’s petition for a writ of mandamus is granted\n\nand the case is remanded to the lower court for further proceedings consistent with this\n\nopinion.\n\n PETITION GRANTED\n\n\n\n\n 9\n We express no view, and take no position, on whether Brown’s motion for\nrestitution should be granted. That matter is left to the lower court to determine in a manner\nconsistent with this opinion on remand.\n 21\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: In RE: Carlos BROWN, Petitioner.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-07-26\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1527\\n\\n\\n\\nIn re: CARLOS BROWN,\\n\\n Petitioner.\\n\\n\\nOn Petition for Writ of Mandamus from the United States District Court for the District of\\nMaryland, at Greenbelt. (8:17-po-07283-TMD-1)\\n\\n\\nArgued: March 20, 2019 Decided: July 26, 2019\\n\\n\\nBefore MOTZ, AGEE and WYNN, Circuit Judges.\\n\\n\\nPetition for writ of mandamus granted by published opinion. Judge Agee wrote the opinion,\\nin which Judge Motz and Judge Wynn joined.\\n\\n\\nARGUED: Victor Darrel Stone, MARYLAND CRIME VICTIMS’ RESOURCE\\nCENTER, INC., Upper Marlboro, Maryland, for Petitioner. Jason Daniel Medinger,\\nOFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland; Cullen Oakes\\nMacbeth, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for\\nRespondents. ON BRIEF: Russell P. Butler, MARYLAND CRIME VICTIMS’\\nRESOURCE CENTER, INC., Upper Marlboro, Maryland, for Petitioner. Robert K. Hur,\\nUnited States Attorney, Jane F. Nathan, Assistant United States Attorney, OFFICE OF\\nTHE UNITED STATES ATTORNEY, Baltimore, Maryland, for Respondent United\\nStates of America. James Wyda, Federal Public Defender, Baltimore, Maryland, Paresh\\nS. Patel, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC\\nDEFENDER, Greenbelt, Maryland, for Respondent Joyce Boone.\\n\\fAGEE, Circuit Judge:\\n\\n In June 2017, Joyce Boone injured Carlos Brown in a car accident she caused while\\n\\ndriving under the influence of alcohol. She pleaded guilty to three traffic violations before\\n\\nthe United States magistrate judge and was sentenced to two years’ probation. Brown asked\\n\\nthe court to order restitution as a condition of Boone’s probation, but his request was\\n\\ndenied. He now petitions this Court for a writ of mandamus pursuant to 18 U.S.C.\\n\\n§ 3771(d)(3). For the reasons stated below, we grant the petition and remand the case.\\n\\n\\n\\n I.\\n\\n A.\\n\\n Brown owned and operated his own electrician’s business at the time of the\\n\\naccident. In June 2017, he was riding a motorcycle on a federal roadway in Maryland when\\n\\nBoone ran a red light while operating her vehicle under the influence of alcohol. She\\n\\ncollided with Brown, leaving him with serious injuries that required at least seven surgeries\\n\\nwithin one year of the accident. Brown had metal rods installed in various parts of his body\\n\\nand needed assistive devices to walk. Because of these injuries, Brown alleged that he\\n\\nbecame unable to work as an electrician or perform daily activities and was “struggling\\n\\nphysically, mentally, emotionally, [and] financially.” J.A. 39.\\n\\n\\n\\n\\n 2\\n\\f Boone was later charged with six violations of various federal traffic regulations in\\n\\nthe United States District Court for the District of Maryland. 1 She reached a plea agreement\\n\\nwith the Government and pleaded guilty to three offenses 2: (1) driving with a blood alcohol\\n\\nconcentration of .08 or above in violation of 36 C.F.R. § 4.23(a)(2); (2) failing to obey a\\n\\ntraffic control device in violation of 36 C.F.R. § 4.12; and (3) unsafely operating a motor\\n\\nvehicle in violation of 36 C.F.R. § 4.22(b)(1). Under the terms of the plea agreement, the\\n\\nGovernment agreed to recommend a sentence of probation but make no recommendation\\n\\nregarding Brown’s claim for restitution as part of Boone’s sentence. The parties proceeded\\n\\nto a plea hearing, 3 during which the court conducted a plea colloquy and accepted Boone’s\\n\\nguilty plea.\\n\\n At the hearing, Brown requested that the court order restitution in the amount of\\n\\n$18,976 as a condition of Boone’s probation. Specifically, Brown sought restitution for the\\n\\ndeductible of $250 he paid to his vehicle insurance company and his estimated lost wages\\n\\nfor the past seven months, which he calculated at an hourly rate of $22, less the settlement\\n\\namount of $30,000 he received from his insurer. To support his restitution request, Brown\\n\\n\\n\\n 1\\n A violation of the federal traffic regulations is punishable for a term of\\nimprisonment not exceeding six months, 36 C.F.R. § 1.3; see 18 U.S.C. § 1865(a), and thus\\nis a Class B misdemeanor, 18 U.S.C. § 3559 (a)(7).\\n 2\\n Boone’s proceedings were before the magistrate judge because she was charged\\nwith petty offenses, see 18 U.S.C. § 19 (identifying a Class B misdemeanor as a “petty\\noffense”), and magistrate judges have authority “to dispose of cases involving petty\\noffenses . . . committed by both youth offenders and adults,” United States v. Snow, 748\\nF.2d 928, 931 (4th Cir. 1984).\\n 3\\n The magistrate judge set a bench trial for February 1, 2018. On that day, the\\nGovernment notified the court that the parties reached a plea agreement, which converted\\nthe scheduled trial into a plea hearing.\\n 3\\n\\fprovided personal and familial statements about his injuries and an October 2017 letter\\n\\nfrom his physician stating that he would not be able to work full-time for one to one-and-\\n\\na-half years after the accident. Brown explicitly declined to seek restitution for his medical\\n\\nbills or future lost wages.\\n\\n Boone agreed that the $250 deductible was an appropriate part of a restitution award\\n\\nbut objected to Brown’s claim for past lost wages because she contended his supporting\\n\\nevidence was speculative and not reliable. She asked the court to order a restitution award\\n\\nof $250, or, in the alternative, schedule a hearing as to any other proper amounts, although\\n\\nshe believed the issue of restitution “would all get flushed out in the civil proceedings\\n\\nthrough discovery where it should be flushed out. Not here [in] a criminal magistrate\\n\\ncourt.” J.A. 52. At that point, the court noted that Brown “got serious injuries [and] has had\\n\\nserious medical injuries in the past. It sounds like more surgery is down the road, lost\\n\\nwages, children. [T]his is not something I can decide today.” J.A. 60–61. The court\\n\\ndeclined to order restitution at that time, stating that Brown’s case was “extraordinarily\\n\\nunusual,” J.A. 60, but ordered a presentence report directing the probation officer to\\n\\nexamine the issue of restitution. The court scheduled a sentencing hearing for April 2018.\\n\\n Prior to the sentencing hearing, Brown filed an amended request seeking restitution\\n\\nin the amount of $19,040.32 solely to cover his past lost wages. To support the request, he\\n\\nsubmitted his 2017 federal tax return, his own affidavit detailing his physical struggles, and\\n\\nthe letter from his physician. In the letter, the doctor noted that Brown was using a walker\\n\\nand needed physical therapy twice per week for the next six months. The physician further\\n\\nstated “[i]f he is able to resume his regular full-time work as an electrician, it will likely be\\n\\n 4\\n\\f1[ to ]1-1/2 years from the time of his injury.” J.A. 75. There was no evidence offered as\\n\\nto whether Brown could work part-time as an electrician or was capable of maintaining\\n\\nsome other form of full- or part-time employment.\\n\\n At the sentencing hearing, Brown reiterated his request for restitution, stating that\\n\\nhe would not pursue any civil action against Boone. She continued to oppose the request,\\n\\narguing that the court should “stay out of it” because Brown’s restitution request “is [better\\n\\nsuited for] civil litigation.” J.A. 109. Further, Boone challenged the reliability of the\\n\\nOctober 2017 letter from Brown’s doctor and questioned why Brown could not find other\\n\\nemployment and thereby mitigate damages. She also argued that the court may not award\\n\\nrestitution here because her conduct underlying the offenses to which she pleaded guilty\\n\\ndid not cause Brown’s injury. 4 Boone asked the court to place her on one year of probation\\n\\nand not to order restitution as a condition of probation.\\n\\n B.\\n\\n The court sentenced Boone to two years’ probation but declined to order restitution,\\n\\nlargely for two reasons: Brown lacked sufficient evidence to support his restitution request\\n\\nand the sentencing forum was unsuitable for determining the requested restitution. First,\\n\\neven though the court acknowledged that it had discretion to order restitution and “no\\n\\nreason to not believe Mr. Brown,” J.A. 126, it rejected Brown’s request, stating:\\n\\n although there is evidence of lost wages through Mr. Brown’s own testimony\\n and tax return, in my opinion there has got to be more than simply the\\n victim’s statement to award restitution in the amount of $20,000. . . . . [T]his\\n\\n\\n 4\\n Boone has abandoned this claim on appeal and does not contest that her conduct\\nunderlying the convicted offenses did cause Brown’s injury.\\n 5\\n\\f is misdemeanor court. This court generally does not deal with restitution, and\\n if we are going to deal with restitution, it is not in this amount.\\n\\nJ.A. 127. The court also discussed Brown’s future medical bills that were approximately a\\n\\n“half a million dollars,” J.A. 128, although Brown did not request restitution for those\\n\\nexpenses.\\n\\n Next, based on the proffered evidence and Boone’s opposition, the court determined\\n\\nthat under the circumstances of this case it was not the appropriate forum to determine\\n\\nrestitution and referenced United States v. Fountain in support of its decision. See 768 F.2d\\n\\n790, 801–02 (7th Cir. 1985) (upholding the district court’s decision not to award restitution\\n\\nfor future lost wages because “the calculation of lost future earnings involves the difficult\\n\\nproblem of translating an uncertain future stream of earnings into a present value”). The\\n\\ncourt then stated, “[i]n a criminal context the Court will put its foot into the waters of\\n\\nrestitution if things are readily and accurately ascertainable uncontested. We are contested\\n\\nhere, and that is why this is just so not the forum to be dealing with these kinds of figures.”\\n\\nJ.A. 129. The court also noted that “to order restitution in the amount that is being requested\\n\\nwith the evidence that would give me the level of confidence and comfort in that I am being\\n\\naccurate would, in my opinion, complicate and prolong the sentencing process.” J.A. 130.\\n\\nThe court advised Brown to seek restitution in a civil suit so that he could conduct\\n\\ndiscovery and deal with “big figures.” J.A. 129.\\n\\n\\n\\n\\n 6\\n\\f From the denial of his request for restitution, Brown timely petitions for a writ of\\n\\nmandamus as authorized by the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771. 5\\n\\nBoone opposes the petition, and the Government, in accordance with its obligation under\\n\\nthe plea agreement, takes no position either for or against a restitution award. We have\\n\\njurisdiction under § 3771(d)(3) and grant the petition for the reasons that follow. 6\\n\\n\\n\\n II.\\n\\n On appeal, Boone makes two arguments: that (1) we lack subject matter jurisdiction\\n\\nto review Brown’s petition and (2) even if we have jurisdiction, the petition lacks merit.\\n\\nWe examine and reject each argument in turn.\\n\\n A.\\n\\n Section 3771(d)(3) governs our jurisdiction over Brown’s petition, as it allows a\\n\\ncrime victim to “petition the court of appeals for a writ of mandamus” if “the district court\\n\\ndenies the [restitution request].” § 3771(d)(3) (emphasis added). Boone asserts that the\\n\\nstatute does not authorize our review of Brown’s petition because it challenges the decision\\n\\nmade by a magistrate judge, not a district court judge. She argues that by using the specific\\n\\n\\n\\n 5\\n The CVRA “protect[s] victims and guarantee[s] them some involvement in the\\ncriminal justice process” by providing them with “notice of any proceedings, the right to\\nattend those proceedings, the right to confer with the prosecutor, and the right to be\\n‘reasonably heard at any public proceeding in the district court involving release, plea,\\nsentencing, or parole proceeding.’” United States v. Moussaoui, 483 F.3d 220, 234 (4th\\nCir. 2007) (quoting 18 U.S.C. § 3771(a)).\\n 6\\n We note that despite Boone’s concession that restitution for the $250 insurance\\ndeductible was appropriate, the court declined to award that amount. Brown makes no\\nclaim on appeal that the failure to make that award was erroneous.\\n 7\\n\\fterm “district court,” § 3771(d)(3) “only authorizes a victim to challenge a district court’s\\n\\ndenial of a restitution request—not a magistrate court’s denial of the same.” Response Br.\\n\\n12. In effect, Boone argues that a magistrate court does not fall within the meaning of\\n\\n“district court” under § 3771(d)(3) because it is separate and different from a district court.\\n\\n Arguing that Congress’ choice of the term “district court” in § 3771(d)(3) precludes\\n\\nour review of magistrate judges’ decisions, Boone cites to 18 U.S.C. § 3402 in support.\\n\\nThis general appeal statute states, “[i]n all cases of conviction by a United States magistrate\\n\\njudge an appeal of right shall lie from the judgment of the magistrate judge to a judge of\\n\\nthe district court of the district in which the offense was committed.” § 3402. Boone asserts\\n\\nthat only the Government can appeal a magistrate judge’s denial of a restitution request to\\n\\na district judge under § 3402 and, if the district judge denies the appeal, can proceed to a\\n\\ncourt of appeals under § 3771(d)(3). According to Boone, Congress intentionally\\n\\ndistinguished the magistrate judge from the district judge in § 3402 and, had it intended a\\n\\ncrime victim to have any rights to directly petition a court of appeals for a writ of\\n\\nmandamus based on a magistrate judge’s denial of restitution, Congress would have used\\n\\nthe term “magistrate” in § 3771(d)(3). Thus, in Boone’s view, where the Government takes\\n\\nno position on a petition for a writ of mandamus and the district court judge has not\\n\\nreviewed the magistrate judge’s denial, we lack subject matter jurisdiction to consider the\\n\\npetition. We disagree.\\n\\n Boone’s argument is erroneous for at least three reasons. First, her reading of\\n\\n“district court” in § 3771(d)(3) is inconsistent with the relevant statutory definitions. Under\\n\\n18 U.S.C. § 3001, the statutes in Part II of Title 18, including § 3771, are governed by the\\n\\n 8\\n\\fapplicable definitional rules of the Federal Rules of Criminal Procedure. Pursuant to Rule\\n\\n1, “‘[c]ourt’ means a federal judge performing functions authorized by law.” Fed. R. Crim.\\n\\nP. 1(b)(2). “‘Federal judge,” in turn, is defined to include “a magistrate judge.” Fed. R.\\n\\nCrim. P. 1(b)(3)(B). The Advisory Committee intentionally crafted this definition to\\n\\n“reflect[] the current understanding that magistrate judges act as the ‘court’ in many\\n\\nproceedings” because it found the term “court’s” synonymous use with “‘district judge’”\\n\\nto be “misleading or unduly narrow” and not to “cover the many functions performed by\\n\\nmagistrate judges.” Fed. R. Crim. P. 1(b)(2) advisory committee’s note to 2002\\n\\namendment. This principle must be incorporated into the definition of “district court” in\\n\\n§ 3771 because Rule 1 governs the statute’s definitions. See id. Thus, by definition, a\\n\\n“district court” under § 3771(d)(3) includes a magistrate judge. Boone’s argument ignores\\n\\nboth the definitional structure for § 3771 imposed through § 3001 and Congress’ decision\\n\\nnot to alter that structure for purposes of § 3771.\\n\\n Second, Boone misstates the scope of § 3402, which deals with “an appeal of right”\\n\\n“from the judgment of the magistrate judge to a judge of the district court” in “all cases of\\n\\nconviction by a United States magistrate judge.” 18 U.S.C. § 3402. The case before us is\\n\\nnot such an appeal. It is a fundamentally different proceeding by the crime victim—not the\\n\\ndefendant—and thus does not fall under § 3402 as an appeal from a “case[ ] of conviction\\n\\nby a United States magistrate judge.” § 3402; see In re Murphy-Brown, LLC, 907 F.3d 788,\\n\\n793 (4th Cir. 2018) (“[W]rits of mandamus function differently from ordinary\\n\\nappeals. . . .”).\\n\\n\\n\\n 9\\n\\f Under the plain terms of § 3771(d)(3), it is the “movant” who “may petition the\\n\\ncourt of appeals for a writ of mandamus” “[i]f the district court denies the relief sought.”\\n\\n§ 3771(d)(3). Brown is the “movant” under § 3771(d)(3) and is clearly accorded the right\\n\\nto petition under the statute. Congress’ specific grant of this right to a “movant” is unrelated\\n\\nto any appeal under § 3402 and is plainly not a right granted to a defendant or limited to\\n\\nthe Government. Congress has made this distinction clear by enacting § 3771(d)(4), which\\n\\n“simultaneously affords the government with the ability to obtain ordinary appellate review\\n\\nof the [restitution] decision.” See In re Antrobus, 519 F.3d 1123, 1129 (10th Cir. 2008). By\\n\\nexpressly providing only the Government, not a “movant,” with ordinary direct appeal\\n\\nrights, Congress has distinguished the appellate rights for mandamus review afforded to a\\n\\n“movant” under § 3771(d)(3) from the ordinary appeal rights afforded to a party or the\\n\\nGovernment under § 3771(d)(4) which would be subject to § 3402. See Sosa v. Alvarez-\\n\\nMachain, 542 U.S. 692, 711 n.9 (2004) (“[W]hen the legislature uses certain language in\\n\\none part of the statute and different language in another, the court assumes different\\n\\nmeanings were intended.” (internal quotation marks omitted)).\\n\\n As a result, Boone’s position simply ignores Congress’ specific choice of “a\\n\\nmandamus petition [to a court of appeals] as the appropriate vehicle for appellate review\\n\\nof an order denying a crime victim’s assertion of a right protected thereunder.” In re Doe,\\n\\n264 F. App’x 260, 262 (4th Cir. 2007); see Fed. R. Crim. P. 60(b)(5) (stating that a crime\\n\\nvictim may move to reopen a plea or sentence if, among other things, “the victim petitions\\n\\nthe court of appeals for a writ of mandamus within 10 days after the denial, and the writ is\\n\\ngranted”); United States v. Monzel, 641 F.3d 528, 540 (D.C. Cir. 2011) (“Since the\\n\\n 10\\n\\fenactment of the CVRA, every circuit . . . has held that mandamus is a crime victim’s only\\n\\nrecourse for challenging a restitution order”).\\n\\n Brown, as the victim, has no right to contest the propriety of Boone’s conviction.\\n\\nSee United States v. Aguirre-Gonzalez, 597 F.3d 46, 53 (1st Cir. 2010) (“[C]rime victims\\n\\nare not parties to a criminal sentencing proceeding. . . . . Thus, the baseline rule is that\\n\\ncrime victims, as non-parties, may not appeal a defendant’s criminal sentence.”). Instead,\\n\\nby petitioning this Court for a writ of mandamus, Brown is asserting his separate statutory\\n\\nright to restitution which Congress has afforded him under the CVRA. See id. at 54\\n\\n(holding that although “crime victims have no right to directly appeal a defendant’s\\n\\ncriminal sentence,” “the CVRA expressly provides [them] with a limited avenue to\\n\\nchallenge the restitution component of a defendant’s sentence through a petition for a writ\\n\\nof mandamus”). Brown’s § 3771(d)(3) petition thus has no relation to an appeal under\\n\\n§ 3402 and the distinctions that statute draws between a magistrate judge and a district\\n\\njudge do not apply here.\\n\\n Last, Boone’s interpretation of § 3771(d)(3) creates a conflict with other statutes\\n\\ngoverning magistrate judges and ignores Congress’ policy choices behind those statutes.\\n\\nHer approach violates canons of statutory interpretation that require courts to “reflect,\\n\\nrather than distort, the policy choices that elected representatives have made” in\\n\\ninterpreting statutes, Almendarez-Torres v. United States, 523 U.S. 224, 238 (1998), and\\n\\nto avoid “reading conflicts into statutes,” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1630\\n\\n(2018). In following these doctrines, we must reject Boone’s argument.\\n\\n\\n\\n 11\\n\\f Our analysis is derived from two statutes under the Federal Magistrates Act, 28\\n\\nU.S.C. § 636, and 18 U.S.C. § 3401, which create and govern the office of magistrate judge\\n\\nand demonstrate a magistrate judge’s role as an arm of the district court. The Federal\\n\\nMagistrates Act invests certain judicial powers in magistrate judges, including the powers\\n\\n“to enter a sentence for a petty offense” and “to conduct trials under section 3401, title 18,\\n\\nUnited States Code, in conformity with and subject to the limitations of that section”\\n\\n“within the district in which sessions are held by the court that appointed the magistrate\\n\\njudge.” 28 U.S.C. § 636(a). In turn, § 3401(b) provides, “[a]ny person charged with a\\n\\nmisdemeanor, other than a petty offense may elect . . . to be tried before a district judge for\\n\\nthe district in which the offense was committed.” 18 U.S.C. § 3401(b) (emphasis added).\\n\\nThis section indicates that a defendant who is charged with a petty offense, like Boone,\\n\\nmay not elect to be tried before a district judge and must proceed before a magistrate judge\\n\\nunless a district judge chooses to preside in the case.\\n\\n This statutory scheme reflects “Congress’ perception that the assistance of federal\\n\\nmagistrates was a necessary measure to ensure that the already severe pressures on the\\n\\nfederal district courts do not become overwhelming.” United States v. Raddatz, 447 U.S.\\n\\n667, 713 (1980) (Marshall, J., dissenting). By enacting the Federal Magistrates Act,\\n\\n The Congress . . . manifested its intention to create a judicial officer and to\\n invest in him the power to furnish assistance to a judge of the district court.\\n The magistrate was given jurisdiction over petty criminal offenses and the\\n Act also gave each district court the discretionary power to use the magistrate\\n to assist a district court judge . . .\\n ....\\n [T]he Congress clearly indicated its intent that the magistrate should be a\\n judicial officer whose purpose was to assist the district judge to the end that\\n the district judge could have more time to preside at the trial of cases having\\n\\n 12\\n\\f been relieved of part of his duties which required the judge to personally hear\\n each and every pretrial motion or proceeding necessary to prepare a case for\\n trial.\\n\\nH.R. Rep. No. 94-1609, at 6 (1976), as reprinted in 1976 U.S.C.C.A.N. 6162, 6166\\n\\n(emphasis added). Pursuant to this clear congressional intent, magistrate judges “are\\n\\nappointed and subject to removal by Article III judges,” Peretz v. United States, 501 U.S.\\n\\n923, 937 (1991), and “district judges retain plenary authority over when, what, and how\\n\\nmany pretrial matters are assigned to magistrates,” Raddatz, 447 U.S. at 685 (Blackmun,\\n\\nJ., concurring). Thus, magistrate judges, as “competent and impartial assistants” of district\\n\\njudges, are an integral part of a district court. Id. at 686.\\n\\n Based on this legislative history and the statutory scheme governing magistrate\\n\\njudges, we conclude that a magistrate court is included within the term “district court”\\n\\nunder § 3771(d)(3). See Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 222 (2008) (noting\\n\\nthat courts’ construction of a statutory term must “ensure that the statutory scheme is\\n\\ncoherent and consistent”). Unlike the specific distinction Congress has drawn between the\\n\\nmagistrate judge and the district court judge in § 3402, Congress has made no such\\n\\ndistinction in § 3771 regarding petitions for a writ of mandamus. We see no basis, sub\\n\\nsilentio, to draw such a distinction in the absence of a specific direction from Congress. To\\n\\ndo so would create the absurd result that under § 3771(d)(3), a crime victim could petition\\n\\nfrom the denial of restitution if a district judge made the determination but could not do so\\n\\nif a magistrate judge made the same decision.\\n\\n Boone’s reading requires that when a magistrate judge declines to award restitution\\n\\npursuant to § 636(a) and § 3401 in a petty offense case, a victim cannot exercise his\\n\\n 13\\n\\fstatutory rights under § 3771(d)(3) to seek appellate review of that decision. Boone points\\n\\nto no legal authority other than her tortured interpretation of § 3771(d)(3), which\\n\\neffectively negates the specific rights of crime victims guaranteed by the CVRA.\\n\\nConstruing the statutes as Boone proposes directly contradicts Congress’ express,\\n\\nunambiguous intent that regardless of whether the underlying offense is a petty offense,\\n\\n“[t]he crime victim or the crime victim’s lawful representative [as well as] the attorney for\\n\\nthe Government may assert” the rights to restitution provided under § 3771. § 3771(d)(1)\\n\\n(emphasis added).\\n\\n For all these reasons, we reject Boone’s argument and hold that we have subject\\n\\nmatter jurisdiction over Brown’s petition under § 3771(d)(3).\\n\\n B.\\n\\n Next, we address Boone’s argument that the petition lacks merit. In doing so, we\\n\\nreview the lower court’s restitution decision for abuse of discretion. United States v.\\n\\nLeftwich, 628 F.3d 665, 667 (4th Cir. 2010).\\n\\n Before analyzing the merits of the petition, we review the scope of the applicable\\n\\nrestitution statutes because “federal courts do not have the inherent authority to order\\n\\nrestitution, but must rely on a statutory source” to do so. United States v. Cohen, 459 F.3d\\n\\n490, 498 (4th Cir. 2006). Relevant here are two restitution enactments: the Victim and\\n\\nWitness Protection Act (“VWPA”), 18 U.S.C. § 3663, and the Mandatory Victims\\n\\nRestitution Act (“MVRA”), 18 U.S.C. § 3663A. 7 These statutes “impose different\\n\\n\\n 7\\n The CVRA is substantively different from the VWPA and the MVRA in that it\\n“makes available to crime victims, among other things, procedural mechanisms to assert\\n 14\\n\\frequirements on the district court when it determines an award of restitution.” Leftwich,\\n\\n628 F.3d at 667. The key difference between them is that “an award of restitution under\\n\\nthe VWPA is not mandatory,” whereas “the MVRA mandates that the sentencing court\\n\\norder restitution in the full amount of the victim’s loss when the defendant has been\\n\\nconvicted of certain specified offenses.” Id. at 668. As the parties concede and the lower\\n\\ncourt correctly held, the VWPA governs Brown’s restitution request because Boone’s\\n\\noffenses do not qualify as offenses that warrant mandatory restitution under the MVRA.\\n\\nCf. 18 U.S.C. § 3663A(a)(1), (c).\\n\\n To analyze the applicable restitution statutes, we first examine whether the\\n\\nsentencing court may award restitution under § 3563(b)(2) because Brown asked that\\n\\nrestitution be imposed as a condition of Boone’s probation. Under this provision, a court\\n\\nhas discretion to order “restitution to a victim of the offense under section 3556” as a\\n\\ncondition of probation. § 3563(b)(2). In turn, § 3556 states that “[t]he court, in imposing a\\n\\nsentence on a defendant who has been found guilty of an offense . . . may order restitution\\n\\nin accordance with section 3663” and follow the procedures set forth in § 3664. § 3556.\\n\\n An award of restitution under § 3663 is discretionary, as this section states that the\\n\\ncourt “may order . . . that the defendant make restitution to any victim of [the] offense.”\\n\\n\\nsubstantive rights in a defendant’s criminal proceedings and on appeal, including rights as\\nprovided in the VWPA and MVRA.” Aguirre-Gonzalez, 597 F.3d at 48 n.2; see United\\nStates v. Kovall, 857 F.3d 1060, 1065 (9th Cir. 2017) (“The CVRA provides mechanisms\\nfor enforcing a victim’s rights under the Act.”). Thus, the CVRA “provide[s] a right to\\npetition the court of appeals for mandamus, grant[s] the government express power to\\nassert crime victims’ rights on appeal, [and] set[s] forth procedures by which victims may\\nmove to reopen sentences,” whereas the VWPA and the MVRA do not. See Monzel, 641\\nF.3d at 543–44.\\n 15\\n\\f§ 3663(a)(1)(A) (emphasis added). The court’s discretion under the VWPA, however, is\\n\\nnot unfettered; instead, “[d]iscretion in ordering restitution is circumscribed by the\\n\\nprocedural and substantive protections” of the statute. Leftwich, 628 F.3d at 667 (internal\\n\\nquotation marks omitted). The court, in “determining whether to order restitution,” must\\n\\nconsider “the amount of the loss sustained by each victim as a result of the offense,” “the\\n\\nfinancial resources of the defendant, the financial needs and earning ability of the defendant\\n\\nand the defendant’s dependents, and such other factors as the court deems appropriate.”\\n\\n§ 3663(a)(1)(B)(i).\\n\\n Nonetheless, “[t]o the extent that the court determines that the complication and\\n\\nprolongation of the sentencing process resulting from the fashioning of an order of\\n\\nrestitution under this section outweighs the need to provide restitution to any victims, the\\n\\ncourt may decline to make such an order.” § 3663(a)(1)(B)(ii). Congress adopted this\\n\\nprovision “to prevent sentencing hearings from becoming prolonged and complicated trials\\n\\non the question of damages owed the victim,” S. Rep. No. 97-532, at 31 (1982), as\\n\\nreprinted in 1982 U.S.C.C.A.N. 2515, 2537, and so “that sentencing courts [do] not\\n\\nbecome embroiled in intricate issues of proof,” 8 United States v. Reifler, 446 F.3d 65, 136\\n\\n\\n 8\\n Several decisions cited herein address the complexity exception under the MVRA,\\nbut they are relevant here. Similar to the VWPA, the MVRA exempts sentencing courts\\nfrom awarding restitution if “determining complex issues of fact related to the cause or\\namount of the victim’s losses would complicate or prolong the sentencing process to a\\ndegree that the need to provide restitution to any victim is outweighed by the burden on the\\nsentencing process.” 18 U.S.C. § 3663A(c)(3)(B) (emphasis added); cf.\\n§ 3663(a)(1)(B)(ii). Because the balancing test required under the complexity exception of\\nthe MVRA is substantially similar to that under the VWPA, the decisions interpreting and\\napplying the MVRA’s complexity exception provide useful guidance in our\\n§ 3663(a)(1)(B)(ii) analysis. See United States v. Randle, 324 F.3d 550, 556 n.3 (7th Cir.\\n 16\\n\\f(2d Cir. 2006). Relying primarily on this rationale, the magistrate judge here held that\\n\\ndetermining restitution would complicate and prolong the sentencing process and thus\\n\\ndenied Brown’s request for restitution.\\n\\n In making this determination, the court abused its discretion because it improperly\\n\\nfailed to articulate the balancing analysis as required by § 3663(a)(1)(B)(ii) when\\n\\nrestitution is denied. A court does not properly discharge its duty to conduct “a balancing\\n\\ntest” under § 3663(a)(1)(B)(ii) unless it expressly “weigh[s] the need to provide restitution\\n\\nto a victim against the burden on the sentencing process posed by determining complex\\n\\nissues of fact.” United States v. Malone, 747 F.3d 481, 486 (7th Cir. 2014); United States\\n\\nv. Gushlak, 728 F.3d 184, 192 (2d Cir. 2013) (“[T]he statute explicitly contemplates that\\n\\nthe district court weigh against the burden of ordering restitution the victims’ interests in\\n\\nreceiving restitution.”). In conducting this balancing test, the court must articulate its\\n\\nanalysis because we require “district courts to make specific fact findings on those matters\\n\\nrelevant to application of the VWPA.” United States v. Bruchey, 810 F.2d 456, 458 (4th\\n\\nCir. 1987). Thus, in applying § 3663(a)(1)(B)(ii), a court must (1) make fact findings\\n\\nspecific to two statutory factors—“the need to provide restitution to a victim,” and “the\\n\\nburden on the sentencing process posed by determining complex issues of fact”—and (2)\\n\\nthen explicitly balance these two factors. Malone, 747 F.3d at 486.\\n\\n\\n\\n\\n2003) (“Because of the similarity of the statutory language in the VWPA and MVRA, court\\ndecisions interpreting the language of the VWPA are helpful in construing the language of\\nthe MVRA.”).\\n 17\\n\\f The magistrate judge acknowledged Brown’s need for restitution and stated, as to\\n\\nhis proffered proof of lost earnings, “I have no reason to not believe Mr. Brown.” J.A. 126.\\n\\nThe court went on to note, though, that it questioned the sufficiency of Brown’s evidence,\\n\\nsaying, “in my opinion there has got to be more than simply the victim’s statement to award\\n\\nrestitution in the amount of $20,000.” J.A. 127. The magistrate judge then noted Brown’s\\n\\nextensive medical expenses—although he did not seek restitution for these—and his\\n\\ndisputed claim for lost earnings, and observed, “this is a forum which is so much less\\n\\nequipped to handle situations like this than a civil proceeding.” J.A. 127.\\n\\n After discussing case law on the difficulty of calculating lost future earnings, the\\n\\ncourt reiterated its concern\\n\\n about not just lost wages, but about future medical bills, future pain and\\n suffering, future emotional distress. In a criminal context the Court will put\\n its foot into the waters of restitution if things are readily and accurately\\n ascertainable uncontested. We are contested here, and that is why this is just\\n so not the forum to be dealing with these kinds of figures.\\n\\nJ.A. 129.\\n\\n The court then quoted the text of § 3663(a)(1)(B)(ii) and concluded:\\n\\n Mr. Brown is not without his day in court. He has a remedy. He has a civil\\n remedy. And to order restitution in the amount that is being requested with\\n the evidence that would give me the level of confidence and comfort in that\\n I am being accurate would, in my opinion, complicate and prolong the\\n sentencing process.\\n . . . I am going to decline to order, as a discretionary condition of\\n probation, restitution in this matter.\\n\\nJ.A. 130.\\n\\n While the court found certain facts relating to each of the statutory factors—the\\n\\nvictim’s need for restitution and the burden imposed on the sentencing court—it failed to\\n\\n 18\\n\\farticulate how it balanced those factors to determine that restitution was unwarranted. By\\n\\nfailing to do so, the court violated its duty under § 3663(a)(1)(B)(ii) to expressly weigh:\\n\\n the burden of adjudicating the restitution issue against the desirability of\\n immediate restitution—or otherwise stated, a weighing of the burden that\\n would be imposed on the court by adjudicating restitution in the criminal\\n case against the burden that would be imposed on the victim by leaving him\\n or her to other available legal remedies.\\n\\nUnited States v. Kones, 77 F.3d 66, 68–69 (3d Cir. 1996). Put another way, the court abused\\n\\nits discretion by failing to state why the burden of complexity or delay in sentencing\\n\\noutweighed Brown’s need for restitution. This abuse of discretion harmed Brown because\\n\\nhe received none of the requested restitution to which he may be entitled under the VWPA.\\n\\nAccordingly, we grant the petition for mandamus, thereby vacating the order denying\\n\\nrestitution, and remand the case for the magistrate judge to conduct and explain on the\\n\\nrecord its balancing analysis in determining whether to award restitution.\\n\\n C.\\n\\n In light of some of the court’s remarks and the parties’ arguments on brief, we will\\n\\nexercise our discretion to address certain issues that are likely to recur upon remand. United\\n\\nStates ex rel. Drakeford v. Tuomey Healthcare Sys., Inc., 675 F.3d 394, 406 (4th Cir. 2012)\\n\\n(“[W]e note that our precedent is clear that we may address issues that are likely to recur\\n\\non remand.”). First, the lower court’s reference to Fountain, 768 F.2d at 801–02, and its\\n\\nexplanation of the difficulty in calculating restitution for future lost earnings, appears to\\n\\nhave limited applicability when, as here, the requested restitution is limited to past lost\\n\\nearnings. While projecting future losses is inherently speculative, the same concern is\\n\\n\\n\\n 19\\n\\fabsent for earnings already lost. For that reason, Fountain should not be a guiding star for\\n\\nthe lower court’s balancing analysis on remand.\\n\\n Next, Brown asserts that the sentencing court erroneously considered the\\n\\navailability of a civil remedy in deciding whether to award restitution. This argument lacks\\n\\nmerit. Other circuits have concluded that in determining whether to deny restitution under\\n\\n§ 3663(a)(1)(B)(ii), a court may consider the availability of other legal remedies. See\\n\\nKones, 77 F.3d at 68–69 (holding that in applying § 3663(a)(1)(B)(ii), a court must\\n\\nconsider “the burden that would be imposed on the victim by leaving him or her to other\\n\\navailable legal remedies”). Specifically, the Tenth Circuit in United States v. Gallant\\n\\nobserved the following:\\n\\n While the availability of other relief is deemed irrelevant to the process of\\n calculating the amount of a restitution award [under the MVRA], it is not\\n necessarily irrelevant to the availability of such an award under § 3663A. The\\n existence of pending civil litigation may in some cases be relevant to the\\n balancing test established by [the MVRA’s] complexity exception.\\n\\n537 F.3d 1202, 1254 (10th Cir. 2008) (final emphasis added). We agree with the Tenth\\n\\nCircuit’s reasoning and hold that, in considering and balancing the statutory factors under\\n\\n§ 3663(a)(1)(B)(ii), the court may consider, among other factors, the availability of\\n\\nalternative civil remedies for Brown’s past lost earnings. That said, the court on remand\\n\\n“should not place great weight on this factor.” Id. It is merely one factor for the court to\\n\\nbalance and should not be the controlling factor in and of itself. Rather, “the primary\\n\\nconsideration” of the complexity exception “is the burden that calculating restitution would\\n\\nplace on the sentencing process.” Id.\\n\\n\\n\\n 20\\n\\f Last, the court below referenced Brown’s need for compensation for his medical\\n\\nexpenses despite the fact that Brown specifically denied any claim to medical expenses and\\n\\nrequested restitution only for past lost earnings. In performing its § 3663(a)(1)(B)(ii)\\n\\nbalancing analysis, the court should confine its review to what Brown requested—past lost\\n\\nearnings. Any consideration of unclaimed medical expenses is irrelevant. 9\\n\\n\\n\\n III.\\n\\n For the reasons stated above, Brown’s petition for a writ of mandamus is granted\\n\\nand the case is remanded to the lower court for further proceedings consistent with this\\n\\nopinion.\\n\\n PETITION GRANTED\\n\\n\\n\\n\\n 9\\n We express no view, and take no position, on whether Brown’s motion for\\nrestitution should be granted. That matter is left to the lower court to determine in a manner\\nconsistent with this opinion on remand.\\n 21\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2962,"cells":{"id":{"kind":"number","value":4643380,"string":"4,643,380"},"name":{"kind":"string","value":"DEFENDERS OF WILDLIFE; Sierra Club; Virginia Wilderness Committee, Petitioners, v. UNITED STATES DEPARTMENT OF THE INTERIOR; United States Fish and Wildlife Service, an Agency of the U.S. Department of the Interior; Jim Kurth, in His Official Capacity as Acting Director; Paul Phifer, in His Official Capacity as Assistant Regional Director, Ecological Services, Responsible Official, Respondents, Atlantic Coast Pipeline LLC, Intervenor."},"name_abbreviation":{"kind":"string","value":"Defenders of Wildlife v. U.S. Dept. of the Interior"},"decision_date":{"kind":"string","value":"2019-07-26"},"docket_number":{"kind":"string","value":"18-2090"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Gregory, Wynn, Thacker\", \"parties\": \"\", \"opinions\": [{\"author\": \"Vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-2090\\n\\n\\nDEFENDERS OF WILDLIFE; SIERRA CLUB; VIRGINIA WILDERNESS\\nCOMMITTEE,\\n\\n Petitioners,\\n\\n v.\\n\\nUNITED STATES DEPARTMENT OF THE INTERIOR; UNITED STATES FISH\\nAND WILDLIFE SERVICE, an agency of the U.S. Department of the Interior; JIM\\nKURTH, in his official capacity as Acting Director; PAUL PHIFER, in his official\\ncapacity as Assistant Regional Director, Ecological Services, Responsible Official,\\n\\n Respondents,\\n\\nATLANTIC COAST PIPELINE LLC,\\n\\n Intervenor.\\n\\n\\nOn Petition for Review of the United States Fish and Wildlife Service’s Biological Opinion\\nand Incidental Take Statement. (CP15–554–000; CP15–554–001; CP15–555–000)\\n\\n\\nArgued: May 9, 2019 Decided: July 26, 2019\\n\\n\\nBefore GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.\\n\\n\\nVacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in\\nwhich Judge Wynn and Judge Thacker joined.\\n\\n\\nARGUED: Austin Donald Gerken, Jr., SOUTHERN ENVIRONMENTAL LAW\\nCENTER, Asheville, North Carolina, for Petitioners. Kevin William McArdle,\\n\\fUNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents.\\nBrooks Meredith Smith, TROUTMAN SANDERS, LLP, Richmond, Virginia, for\\nIntervenor. ON BRIEF: Amelia Burnette, J. Patrick Hunter, Asheville, North\\nCarolina, Gregory Buppert, SOUTHERN ENVIRONMENTAL LAW CENTER,\\nCharlottesville, Virginia, for Petitioners. Eric Grant, Deputy Assistant Attorney General,\\nAndrew C. Mergen, Avi Kupfer, Environment and Natural Resources Division,\\nUNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Tony Sullins,\\nS. Amanda Bossie, Office of the Solicitor, UNITED STATES DEPARTMENT OF THE\\nINTERIOR, Washington, D.C., for Federal Respondents. Andrea W. Wortzel,\\nTROUTMAN SANDERS LLP, Richmond, Virginia, for Intervenor.\\n\\n\\n\\n\\n 2\\n\\fGREGORY, Chief Judge:\\n\\n In 2017, the U.S. Fish and Wildlife Service (“FWS”) issued a Biological Opinion\\n\\nin connection with the proposed Atlantic Coast Pipeline, which will transport natural gas\\n\\nfrom West Virginia to Virginia and North Carolina. That Opinion, required by the\\n\\nEndangered Species Act, concluded that the proposed pipeline will not jeopardize the\\n\\ncontinued existence of several endangered and threatened species that are likely to be\\n\\nimpacted by pipeline construction. As relevant here, the Biological Opinion concluded\\n\\nthat the pipeline will not jeopardize four species: the rusty patched bumble bee, clubshell,\\n\\nIndiana bat, or Madison Cave isopod. However, because FWS anticipated the incidental\\n\\ntaking, i.e., harassing or killing, of those species, the agency issued an Incidental Take\\n\\nStatement with its Biological Opinion, setting limits on the number of each species that the\\n\\npipeline could legally take.\\n\\n Petitioners challenged the take limits imposed by the 2017 Incidental Take\\n\\nStatement. After reviewing that agency action, we determined that FWS’s take limits were\\n\\narbitrary and capricious. Accordingly, we vacated the Incidental Take Statement.\\n\\n Shortly after our decision, FWS issued a new Biological Opinion and Incidental\\n\\nTake Statement. Petitioners now challenge the findings of both of those agency actions.\\n\\nSpecifically, Petitioners assert that FWS improperly determined that pipeline construction\\n\\nwill not jeopardize the rusty patched bumble bee or the clubshell, and they challenge the\\n\\nvalidity of the take limits imposed for the Indiana bat and the Madison Cave isopod.\\n\\nBecause we find that FWS arbitrarily reached its no-jeopardy conclusions and failed to\\n\\n\\n\\n\\n 3\\n\\fcorrect the deficiencies in the take limits that we identified in the previous appeal, we grant\\n\\nthe petition and vacate the 2018 Biological Opinion and Incidental Take Statement.\\n\\n\\n\\n I.\\n\\n Before we turn to the relevant facts of this case, we review the statutory context in\\n\\nwhich this appeal arises. The Endangered Species Act (“ESA”) was enacted “to protect\\n\\nand conserve endangered and threatened species and their habitats.” Sierra Club v. U.S.\\n\\nDep’t of the Interior, 899 F.3d 260, 268 (4th Cir. 2018) (quoting Nat’l Ass’n of Home\\n\\nBuilders v. Defs. of Wildlife, 551 U.S. 644, 651 (2007)). In line with that purpose, the ESA\\n\\nprohibits federal agencies from engaging in any action “likely to jeopardize the continued\\n\\nexistence of any endangered species or threatened species.” 16 U.S.C. § 1536(a)(2). The\\n\\nAct also prohibits the “take” of endangered and threatened species, i.e., the harassing,\\n\\nharming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, collecting of\\n\\na listed species, or any “attempt to engage in such conduct.” Id. §§ 1532(19),\\n\\n1538(a)(1)(B). A person harms or harasses a listed species when she disrupts that species’s\\n\\n“normal behavioral patterns” or causes indirect injury by “habitat modification.” Sierra\\n\\nClub, 899 F.3d at 269; 50 C.F.R. § 17.3.\\n\\n “Any person who knowingly takes an endangered or threatened species is subject\\n\\nto substantial civil and criminal penalties, including imprisonment.” Sierra Club, 899 F.3d\\n\\nat 269 (internal quotation marks omitted) (quoting Bennett v. Spear, 520 U.S. 154, 170\\n\\n(1997)); see 16 U.S.C. § 1540(a), (b). But a person may escape liability for taking a listed\\n\\n\\n\\n\\n 4\\n\\fspecies when “such taking is incidental to, and not the purpose of, the carrying out of an\\n\\notherwise lawful activity.” 16 U.S.C. § 1539(a)(1)(B).\\n\\n To comply with the ESA, federal agencies faced with permit applications for\\n\\nconstruction projects must ensure, in consultation with the U.S. Fish and Wildlife Service\\n\\n(“FWS”), that “any action authorized, funded, or carried out by such agency . . . is not\\n\\nlikely to jeopardize the continued existence of” a listed species or “result in the destruction\\n\\nor adverse modification” of designated critical habitat. 16 U.S.C. § 1536(a)(2). Formal\\n\\nconsultation with FWS is required when an agency proposing to act (“action agency”)\\n\\ndetermines that its action “may affect” a listed species or critical habitat. 50 C.F.R.\\n\\n§ 402.14(a).\\n\\n When consultation has concluded, FWS issues a Biological Opinion (“BiOp”)\\n\\naddressing whether the proposed action “is likely to jeopardize the continued existence of\\n\\na listed species or result in the destruction or adverse modification of critical habitat.” Id.\\n\\n§ 402.14(g)(4), (h)(3). A proposed action jeopardizes the continued existence of a species\\n\\nwhen it “reasonably would be expected, directly or indirectly, to reduce appreciably the\\n\\nlikelihood of both the survival and recovery of a listed species in the wild by reducing the\\n\\nreproduction, numbers, or distribution of that species.” Id. § 402.02. And a proposed\\n\\naction destroys or adversely modifies a species’s critical habitat when it directly or\\n\\nindirectly alters it in a way that “appreciably diminishes the value of critical habitat for the\\n\\nconservation of a listed species.” Id.\\n\\n If FWS concludes that a proposed project is not likely to jeopardize the continued\\n\\nexistence of a listed species but will result in the take of some members of that species, the\\n\\n\\n 5\\n\\fconsulting party may lawfully take those members only if it first obtains a valid Incidental\\n\\nTake Statement (“ITS”) from FWS setting enforceable limits on the quantity that may be\\n\\ntaken. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(g)(7), (i). Both the BiOp and ITS are\\n\\nformulated during the formal consultation process with FWS, and the ITS is issued with,\\n\\nand supplements, the BiOp. See 50 C.F.R. § 402.14(g), (i)(1); Or. Nat. Res. Council v.\\n\\nAllen, 476 F.3d 1031, 1036 (9th Cir. 2007).\\n\\n With this framework in mind, we turn to the facts underlying this appeal.\\n\\n\\n\\n II.\\n\\n The Atlantic Coast Pipeline (“ACP”) is a proposed 600-mile pipeline designed to\\n\\ntransport natural gas from West Virginia to Virginia and North Carolina. J.A. 816.\\n\\nConstruction of the pipeline will require a 125-foot right-of-way that will disturb 11,776\\n\\nacres of land. Construction will also require additional temporary workspace and the use\\n\\nof access roads. To secure these spaces, and during construction itself, certain forested\\n\\nareas will need to be cleared of trees, ground will be displaced, and sediment will be\\n\\ndeposited into river waters.\\n\\n In 2015, Intervenor Atlantic Coast Pipeline, LLC (“Atlantic”) applied to the Federal\\n\\nEnergy Regulatory Commission (“FERC”) for a certificate of public convenience and\\n\\nnecessity for the ACP. That certificate, required under the Natural Gas Act, serves as the\\n\\ngrant of final approval to construct the pipeline. 15 U.S.C. § 717f. The Natural Gas Act\\n\\nalso requires Atlantic to obtain “any permits, special use authorizations, certifications,\\n\\nopinions, or other approvals as may be required under Federal law.” N.Y. Dep’t of Envtl.\\n\\n\\n 6\\n\\fConservation v. FERC, 884 F.3d 450, 452–53 (2d Cir. 2018) (quoting 15 U.S.C.\\n\\n§ 717n(a)(1), (2)). As the lead agency, FERC is responsible for coordinating all applicable\\n\\nfederal authorizations. 15 U.S.C. § 717n(b)(1).\\n\\n After Atlantic submitted its application to FERC, it was determined that pipeline\\n\\nconstruction may affect several threatened or endangered species. Therefore, FERC\\n\\ninitiated formal consultation with FWS to determine whether the pipeline would likely\\n\\njeopardize the continued existence of those species. See 50 C.F.R. § 402.14(a).\\n\\n On October 13, 2017, FERC issued a certificate of public convenience and necessity\\n\\nfor the ACP. FERC conditioned its approval of the pipeline on Atlantic’s receipt of all\\n\\nstate and other federal authorizations required for the project, including the pending\\n\\nauthorization from FWS.\\n\\n On October 16, 2017, FWS issued a BiOp, concluding that the ACP is not likely to\\n\\njeopardize the existence of any of the affected listed species. FWS also issued an ITS\\n\\nbecause it determined that pipeline construction was likely to result in the take of members\\n\\nof six of those species. The ITS did not set numeric take amounts for five of the species to\\n\\nbe taken. Instead, it relied on habitat surrogates, setting take limits such as “small percent\\n\\nof,” “majority,” and “all.” J.A. 871–74.\\n\\n In January 2018, Petitioners sought review of the ITS. Sierra Club v. U.S. Dep’t of\\n\\nthe Interior, 899 F.3d 260 (4th Cir. 2018). They challenged only the habitat surrogates\\n\\nused by FWS. Id. at 270. Petitioners did not challenge the BiOp’s determination that ACP\\n\\nconstruction will not jeopardize the listed species. Id. at 266, 270.\\n\\n\\n\\n\\n 7\\n\\f In May 2018, we vacated the ITS. Sierra Club v. U.S. Dep’t of the Interior, 722 F.\\n\\nApp’x 321, 322 (4th Cir. 2018). As we later explained in our August 6, 2018, opinion,\\n\\nFWS had failed to create proper habitat surrogates, failed to explain why numeric take\\n\\nlimits were not practical, and failed to create enforceable take limits for the clubshell (a\\n\\nmussel), rusty patched bumble bee, Madison Cave isopod (a crustacean), Indiana bat, and\\n\\nnorthern long-eared bat. Sierra Club, 899 F.3d at 275–81.\\n\\n On August 23, 2018, FERC reinitiated formal consultation with FWS to correct the\\n\\nITS and because of “new information . . . for some of the species.” J.A. 1101. Less than\\n\\nthree weeks later, on September 11, 2018, FWS issued a new BiOp and ITS. As relevant\\n\\nhere, the 2018 BiOp concluded that the ACP will not jeopardize the survival and recovery\\n\\nof the rusty patched bumble bee (“RPBB”), clubshell, Indiana bat (“Ibat”), or the Madison\\n\\nCave isopod (“MCI”). The ITS set take limits for each of these species.\\n\\n Petitioners now challenge the BiOp’s conclusion that the ACP will not jeopardize\\n\\nthe RPBB or the clubshell. Petitioners also challenge the take limits imposed for the Ibat\\n\\nand MCI. We stayed the 2018 BiOp and ITS pending our review of this petition.\\n\\n We have jurisdiction under the Natural Gas Act. 15 U.S.C. § 717r(d)(1).\\n\\n\\n\\n III.\\n\\n We review the 2018 BiOp and ITS under the default standard of the Administrative\\n\\nProcedure Act (“APA”) and ask whether the challenged actions are “arbitrary, capricious,\\n\\nan abuse of discretion, or otherwise not in accordance with law.” Alaska Dep’t of Envtl.\\n\\nConservation v. EPA, 540 U.S. 461, 496‒97 (2004) (quoting 5 U.S.C. § 706(2)(A)); see\\n\\n\\n 8\\n\\falso Friends of Back Bay v. U.S. Army Corps of Eng’rs, 681 F.3d 581, 586–87 (4th Cir.\\n\\n2012). Agency action is arbitrary and capricious “if the agency relied on factors which\\n\\nCongress has not intended it to consider, entirely failed to consider an important aspect of\\n\\nthe problem, offered an explanation for its decision that runs counter to the evidence before\\n\\nthe agency, or is so implausible that it could not be ascribed to a difference in view or the\\n\\nproduct of agency expertise.” Defs. of Wildlife v. N.C. Dep’t of Transp., 762 F.3d 374, 396\\n\\n(4th Cir. 2014) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins., 463 U.S.\\n\\n29, 43 (1983)). In short, “we must ensure that the agency has examined the relevant data\\n\\nand articulated a satisfactory explanation for its action.” Id. (internal quotation marks and\\n\\nbrackets omitted) (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009)).\\n\\n“Review under this standard is highly deferential, with a presumption in favor of finding\\n\\nthe agency action valid.” Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177,\\n\\n192 (4th Cir. 2009). But we will vacate agency action if it is not “based on a consideration\\n\\nof the relevant factors” or where “there has been a clear error of judgment.” Marsh v. Or.\\n\\nNat. Res. Council, 490 U.S. 360, 378 (1989) (citation omitted).\\n\\n\\n\\n IV.\\n\\n In preparing its BiOp, FWS was required to use “the best scientific and commercial\\n\\ndata available.” 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(g)(8). FWS’s “failure to do\\n\\nso violates the APA.” San Luis & Delta-Mendoza Water Auth. v. Locke, 776 F.3d 971, 995\\n\\n(9th Cir. 2014). The purpose of the best-available-data standard is to ensure that FWS does\\n\\nnot act based on “speculation and surmise.” Id. (citing Bennett v. Spear, 520 U.S. 154, 176\\n\\n\\n 9\\n\\f(1997)). Under this standard, FWS may decide which data and studies are the best\\n\\navailable, and its decision is reviewed under a deferential standard. Miccosukee Tribe of\\n\\nIndians of Fla. v. United States, 566 F.3d 1257, 1265 (11th Cir. 2009). The agency is not\\n\\nrequired to conduct new studies when evidence is available upon which a determination\\n\\ncan properly be made. Sw. Ctr. for Biological Diversity v. Babbitt, 215 F.3d 58, 60 (D.C.\\n\\nCir. 2000).\\n\\n This does not mean, however, that FWS is barred from requesting new studies when\\n\\navailable data is inadequate to prepare a BiOp and render a jeopardy determination. On\\n\\nthe contrary, FWS regulations for the ESA provide that “[t]he federal agency requesting\\n\\nformal consultation”—in this case FERC—“shall provide [FWS] with the best scientific\\n\\nand commercial data available or which can be obtained during the consultation for an\\n\\nadequate review of the effects that an action may have upon listed species or critical\\n\\nhabitat.” 50 C.F.R. § 402.14(d) (emphasis added). And the regulations further provide\\n\\nthat “[w]hen [FWS] determines that additional data would provide a better information\\n\\nbase from which to formulate a biological opinion, the Director may request an extension\\n\\nof formal consultation and request that the Federal Agency”—again, FERC in this case—\\n\\n“obtain additional data to determine how or to what extent the action may affect listed\\n\\nspecies or critical habitat.” Id. § 402.14(f). Accordingly, federal law expressly authorizes\\n\\nFWS to request new survey data from a consulting agency if the existing data is not\\n\\n“adequate” to determine the effect of the project.\\n\\n The best-available-data standard also means that FWS is not free to disregard other\\n\\n“available biological information” that “is in some way better than the evidence [it] relies\\n\\n\\n 10\\n\\fon.” Kern Cty. Farm Bureau v. Allen, 450 F.3d 1072, 1080–81 (9th Cir. 2006) (alteration\\n\\nin original) (citations omitted). Rather, FWS must seek out and consider all existing\\n\\nscientific data relevant to the decision it is tasked with making. Heartwood, Inc. v. U.S.\\n\\nForest Serv., 380 F.3d 428, 436 (8th Cir. 2004).\\n\\n After reviewing the agency’s 2018 BiOp and ITS, we agree with Petitioners that\\n\\nFWS has again acted arbitrarily. We address in detail the agency’s decisions with respect\\n\\nto each listed species in turn.\\n\\n A. Rusty Patched Bumble Bee\\n\\n In their previous appeal, Petitioners challenged the take limits imposed by FWS on\\n\\nthe RPBB. We found that those limits violated the Endangered Species Act. Sierra Club,\\n\\n899 F.3d at 277. Now, Petitioners challenge the agency’s finding in the BiOp that the ACP\\n\\nwill not jeopardize the RPBB in the first instance.\\n\\n Some background on the RPBB and the model used by FWS in assessing impacts\\n\\non the species is helpful here. The RPBB is a colonial bee species with an annual cycle.\\n\\nThat cycle begins in early spring, when nests or colonies are started by solitary queen bees.\\n\\nThose nests, although occasionally observed above ground, typically are located\\n\\nunderground, in abandoned rodent nests or other similar cavities. Throughout the summer,\\n\\nthe foundress queen bees produce worker bees. Worker bees are responsible for foraging\\n\\nfor food for the colony. The health of the colony depends on the number of workers\\n\\nforaging and the abundance of foraging habitat. RPBB colony sizes are larger than those\\n\\nof other bumble bees, and a healthy colony is composed of up to 1,000 worker bees in a\\n\\nseason. Endangered and Threatened Wildlife and Plants; Endangered Species Status for\\n\\n\\n 11\\n\\fRusty Patched Bumble Bee, 82 Fed. Reg. 3186, 3187 (Jan. 11, 2017). In late summer and\\n\\nearly fall, the queen bee produces male drones and new queens. At the end of the cycle,\\n\\nmale drones and the new queens mate, while the foundress queen and workers die. The\\n\\nnew queens then overwinter, or hibernate. Overwintering occurs underground, primarily\\n\\nin soft-soil and leaf-litter chambers that the queens form in forested areas. After\\n\\noverwintering, these queens emerge in the spring, and the cycle begins again.\\n\\n Historically, the RPBB was “abundant and widespread, with hundreds of\\n\\npopulations across an expansive range.” 82 Fed. Reg. at 3188. Since the late 1990s,\\n\\nhowever, RPBB populations have plummeted by nearly 90 percent. When the species was\\n\\nlisted as endangered in January 2017, 95% of the 103 known populations had been\\n\\ndocumented by 5 or fewer bees. Id. at 3205. As FWS has recognized, the RPBB “is so\\n\\nimperiled that every remaining population is important for the continued existence of the\\n\\nspecies.” J.A. 941. Without affirmative protection, all but one RPBB ecoregion are\\n\\npredicted to be extinct within 5 years, and that one remaining ecoregion would cease to\\n\\nexist within 30 years.\\n\\n One contributing factor to the RPBB’s swift decline is that RPBBs suffer, as do\\n\\nother bee colonies, from a phenomenon known as the diploid male vortex. This\\n\\nphenomenon occurs when related bees mate, leading to a higher chance of haplodiploidy—\\n\\na condition where 50% of the haploid worker bees are replaced by diploid males that do\\n\\nnot contribute food resources to the colony. This, in turn, leads to a higher likelihood of\\n\\ncolony collapse. Many RPBB populations are victimized by other stressors as well,\\n\\nincluding pathogens, pesticides, habitat loss and degradation, and climate change.\\n\\n\\n 12\\n\\f Concurrent with its preparation of the BiOp for the ACP project, FWS developed\\n\\nguidelines for federal projects that may affect the RPBB’s continued existence. J.A. 514;\\n\\nJ.A. 1110. Under those guidelines, FWS uses a model to identify areas that are likely to\\n\\nbe populated by RPBBs, areas referred to as “high potential zones.” J.A. 517–18. The\\n\\nboundaries of those high potential zones are delineated using extant populations data\\n\\n(species observation data that is less than 10 years old), estimated foraging and dispersal\\n\\ndistances of the bees, and surrounding vegetation types. While the species may be present\\n\\nelsewhere, the modeled high potential zones are thought to “provide a reasonable basis for\\n\\ndescribing where the species is likely to be present and where federal agencies should\\n\\nconsult with [ ] FWS to evaluate the potential effects of their actions.” J.A. 518. If a\\n\\nproject area overlaps with a habitat suitable to RPBBs in a high potential zone, the\\n\\nconsulting agency has two options to determine actual bee presence: it may survey the\\n\\narea of overlap to verify the presence of RPBBs or it may choose to forgo a survey, in\\n\\nwhich case RPBB presence is assumed and consultation with FWS is required. J.A. 521.\\n\\n In its 2017 BiOp, FWS concluded that a 653-hectare high potential zone for the\\n\\nRPBB existed in Bath County, Virginia. This zone was calculated based on the sighting\\n\\nof one worker bee foraging in the George Washington National Forest along a pipeline\\n\\naccess road. While FWS could not determine where the nest for the worker bee’s colony\\n\\nwas located and did not survey for that colony, it calculated the high potential zone based\\n\\non average foraging distances of RPBB workers and the location of habitat suitable for\\n\\nnesting and overwintering queens. The 2017 BiOp acknowledged that “there is uncertainty\\n\\nregarding habitat use and distribution of the species during certain life stages and time\\n\\n\\n 13\\n\\fperiods.” J.A. 840. The BiOp also explained that the “[s]tatus of colony and population\\n\\nin the [high potential zone] is unknown at this time because while the presence of a worker\\n\\nbee signifies the existence of a colony, [the agency had] no accurate way to assess the status\\n\\nof the local population.” Id. Accordingly, in determining RPBB “distribution and habitat\\n\\nuse,” FWS relied on various “assumptions, based on the best available information.” Id.\\n\\nOne of those assumptions was that “RPBB activity (foraging, nesting, overwintering\\n\\nqueens) [was] concentrated in the [high potential zone].” Id. Other assumptions related to\\n\\nthe density of the RPBB population in Bath County. For example, FWS assumed that the\\n\\none observed worker bee was part of a colony composed of 100 to 1,000 worker bees that\\n\\nproduced 6 to 8 new foundress queens each cycle. FWS also assumed that the density of\\n\\nRPBB colonies in the high potential zone was 14 nests per 100 hectares, an estimate that\\n\\nwas calculated by using the nesting density of the “common and abundant” buff-tailed\\n\\nbumble bee. Id.\\n\\n In July and August 2018, FWS received information from the Virginia Department\\n\\nof Conservation and Recreation (“DCR”) that 22 RPBBs—9 in Bath County and 13 in\\n\\nHighland County—had been observed during 2018 bee surveys that the state agency had\\n\\nconducted. The 2018 sightings were closer to the pipeline right-of-way than the lone 2017\\n\\nsighting had been and were near 3 project access roads rather than just one.\\n\\n Based on this new information, FWS expanded the Bath County high potential zone\\n\\nfrom 653 hectares to 969.6 hectares. The newly drawn high potential zone was based on\\n\\nthe 2017 and 2018 bee sightings and the RPBB’s “potential ability to disperse across the\\n\\nlandscape.” J.A. 1183. Just as FWS had assumed in the 2017 BiOp that the RPBB was\\n\\n\\n 14\\n\\flikely to occur in the 653-hectare high potential zone, the agency now assumed that RPBB\\n\\nactivity is concentrated within the expanded 969.6-hectare high potential zone. FWS\\n\\nassumed that the high potential zone contains 156.3 hectares of nesting and foraging habitat\\n\\nand 900.7 hectares of overwintering habitat. Based on these assumptions, FWS determined\\n\\nthat the ACP action area overlaps with the newly drawn high potential zone and\\n\\nencompasses 6.29 hectares of nesting and foraging habitat and 10.27 hectares of\\n\\noverwintering habitat. The 2018 BiOp also relied on the same nest density as the 2017\\n\\nBiOp—14 nests per 100 hectares.\\n\\n Evaluating the effects of pipeline construction in the newly drawn high potential\\n\\nzone, the 2018 BiOp determined that construction will likely cause the crushing of 8\\n\\noverwintering queens, the crushing of worker bees, and will impact one RPBB colony\\n\\ncapable of producing 30 overwintering queens. These estimates were based on FWS’s\\n\\nassumption that 22 RPBB nests are located in the high potential zone 1 and that each nest\\n\\nproduces 30 overwintering queens, resulting in a total of 660 overwintering queens each\\n\\ncycle in the high potential zone—a number of queens that far exceeds the 6-8 queen-per-\\n\\ncolony estimate of the 2017 BiOp and that exceeds the total number of RPBBs that have\\n\\nbeen documented in current populations worldwide. 2 Explaining that a “healthy” bee\\n\\n\\n\\n\\n 1\\n This assumption is based on a nest density of 0.14 nests per hectare within the total\\nassumed nesting habitat of 156.3 hectares.\\n 2\\n As noted earlier, 95% of the 103 remaining populations of RPBB (or 98\\npopulations) have been observed with 5 or fewer bees. One of the other 5 populations was\\ndocumented by 30 bees—the maximum number observed in any of the remaining\\n(Continued)\\n\\n\\n 15\\n\\fpopulation typically contains tens to hundreds of colonies and that the loss of a single\\n\\ncolony or overwintering queen “could reduce the health of a metapopulation 3 due to lost\\n\\nopportunities to interbreed,” J.A. 1216, FWS nonetheless concluded that the destruction of\\n\\n1 of the 22 colonies in the high potential zone, with the potential to produce 30 foundress\\n\\nqueens, and the loss of 8 overwintering queens were “not likely to negatively impact the\\n\\nfitness or survival of the population,” J.A. 1217. Accordingly, FWS found that the ACP\\n\\nwould not jeopardize the RPBB.\\n\\n In challenging this no-jeopardy finding, Petitioners advance several arguments that\\n\\nwe find persuasive. We address each in turn.\\n\\n 1. Nest Density\\n\\n We first find that the 2018 BiOp’s nest density calculation—a calculation that FWS\\n\\nused to determine the total number of RPBBs likely to be impacted by pipeline\\n\\nconstruction—is arbitrary because it is not based on the best available information and in\\n\\nfact ignores evidence that the agency itself has developed.\\n\\n Underlying the arbitrary nature of the 2018 BiOp’s nest density calculations is the\\n\\nfact that “[t]here are no studies that estimate RPBB nest density.” J.A. 1185. Although\\n\\nFWS has developed guidance for surveying the RPBB, it has conducted no surveys to\\n\\nestimate RPBB nest density. In fact, the agency made a point of avoiding surveys in order\\n\\n\\n\\n\\npopulations. Thus, assuming that the other 4 populations were documented with at most\\n29 bees each, the total number of observed RPBBs worldwide would be at most 636.\\n 3\\n A “metapopulation” is “an assemblage of interacting subpopulations.” J.A. 407.\\nA subpopulation is composed of many bee colonies, each of which represents one\\nreproductive unit. Id.\\n\\n 16\\n\\fto “fast-track” pipeline authorization. See J.A. 567 (“Our internal direction is that we can’t\\n\\nrequire surveys and will not make further requests for surveys that interfere with\\n\\napplicant’s project schedule since these are priority fast-track projects, and we will not state\\n\\nthat we have insufficient information to initiate consultation and will not delay initiation\\n\\nof consultation based on lack of baseline/species survey data.”). And while the Virginia\\n\\nDCR observed RPBBs in its 2018 bee survey, that survey was unrelated to the ACP project\\n\\nand was not designed specifically to document RPBB populations or to calculate nest\\n\\ndensity of the species.\\n\\n Without survey data, FWS relied on several assumptions and on the known nest\\n\\ndensities of other bumble bees to estimate the number of RPBBs likely to be present in the\\n\\naction area and thus impacted by the ACP. The agency reviewed 11 studies of nest density\\n\\nfor 7 other bumble bee species and ultimately based its RPBB nest density calculations on\\n\\nthe nest densities of 2 other species: the buff-tailed bumble bee and the great yellow\\n\\nbumble bee. Because FWS did not “develop[ ] additional data,” Sierra Club, 899 F.3d at\\n\\n273, we must determine whether the available evidence of other species’ nest densities is\\n\\na sufficient basis for FWS’s determinations here such that FWS was not required to ask\\n\\nFERC to conduct additional surveys. See Sw. Ctr. for Biological Diversity, 215 F.3d at\\n\\n60. 4\\n\\n\\n 4\\n As we explained in our prior decision in this case, the ESA “does not foreclose\\nFWS or an applicant from developing additional data.” Sierra Club, 899 F.3d at 273; see\\nOr. Nat. Res. Council, 476 F.3d at 1038 (vacating ITS where BiOp noted that species\\nsurvey data was out-of-date and that surveys had been discontinued and where agency\\nnever stated that it was not possible to update survey data to estimate number of takings).\\n(Continued)\\n\\n\\n 17\\n\\f We cannot conclude from the 2018 BiOp that FWS’s reliance on either of the two\\n\\nother species’ data is anything more than arbitrary and capricious. The nest density for the\\n\\nbuff-tailed bumble bee—which, unlike the RPBB, is a “common and abundant” species—\\n\\nvaries from 0.04 nests/hectare (“ha”) to 0.88 nests/ha, with a mean density of 0.34 nests/ha.\\n\\nJ.A. 1185. FWS determined that 0.14 nests/ha would be a reasonable estimate for the\\n\\nRPBB because “densities of 0.04 to 0.15 nests/ha for the buff-tailed bumblebee represented\\n\\n40 percent of the estimates in [buff-tailed bee] studies and the buff-tailed bumblebee is\\n\\ncommon and abundant compared to the relatively rare RPBB.” Id. While FWS\\n\\nacknowledged that applying the mean density of the buff-tailed bumble bee “would likely\\n\\nbe an overestimate of the density of RPBB nests,” it did not explain why it chose the higher\\n\\nend of the 0.04 to 0.15 nests/ha range as the appropriate estimate. Id. Rather, the agency\\n\\nappears to have randomly picked that number out of a hat.\\n\\n FWS also determined that a density of 0.14 nests/ha was a reasonable estimate\\n\\nbecause the nest density for the great yellow bumble bee—which has undergone a\\n\\n“precipitous decline” and nests in habitats similar to those of the RPBB—is 0.19 nests/ha.\\n\\nJ.A. 1185–86. The study of the great yellow bumble bee on which the BiOp relied included\\n\\na “caveat” that the researchers “concentrated on sites known to hold [great yellow bumble\\n\\n\\nThe 2018 BiOp states that, because suitable foraging habitat changes locations from one\\nyear to another and bee numbers “fluctuate throughout the season,” it is likely not possible\\nto conduct surveys to determine RPBB nest density. J.A. 1185. However, in the same\\nbreath, FWS likens the nest density of the RPBB to the known nest densities of 2 other\\nbumble bees, after studying nest densities of 7 other bees. J.A. 1185–86. It is unclear why\\nthe nest densities of those bees—whose numbers likely also fluctuate throughout the season\\nand whose foraging habitats also change—can be studied, but those of the RPBB cannot.\\nAnd among the objectives of FWS’s survey protocols for the RPBB is the monitoring of\\nRPBB populations to determine “relative abundance and species richness.” J.A. 1185.\\n\\n 18\\n\\fbees] in some numbers” and warned that the study’s “conclusions may not extend to other,\\n\\nsmaller and more peripheral populations.” J.A. 175. Given that caveat, and the likely\\n\\n“smaller and more peripheral” RPBB population at issue, FWS does not explain why that\\n\\nstudy is nonetheless a reliable comparator, other than the fact that the great yellow bumble\\n\\nbee is also in decline. Moreover, FWS fails to explain why it chose to use the specific\\n\\nfigure of 0.14 nests/ha as opposed to a density closer to that of the great yellow bumble\\n\\nbee. Again, the nest density chosen by the agency appears to have been selected at random.\\n\\n The arbitrariness of the nest density figure is further highlighted by other evidence\\n\\navailable to FWS, evidence which the 2018 BiOp fails to consider in estimating RPBB\\n\\npresence in the pipeline action area. In its 2017 regulations adding the RPBB to the list of\\n\\nendangered species, FWS explained:\\n\\n Since the late 1990s, rusty patched bumble bee abundance and\\n distribution has declined significantly. Historically, the rusty\\n patched bumble bee has been documented from 926\\n populations; since 1999, the species has been observed at 103\\n populations, which represents an 88 percent decline from the\\n number of populations documented prior to 2000. We\\n assumed any population with at least one record (one\\n individual rusty patched bumble bee seen) since 1999 is\\n current, and thus, the overall health and status of these 103\\n current populations is uncertain. Indeed, many populations\\n have not been reconfirmed since the early 2000s and may no\\n longer persist. For example, no rusty patched bumble bees\\n were observed at 41 (40 percent) of the current sites since 2010\\n and at 75 (73 percent) of the 103 sites since 2015. Furthermore,\\n many of the current populations are documented by only a few\\n individuals; 95 percent of the populations are documented by\\n 5 or fewer individuals; the maximum number found at any site\\n was 30. The number of individuals constituting a healthy\\n colony is typically several hundred, and a healthy population\\n typically contains tens to hundreds of colonies.\\n\\n\\n\\n 19\\n\\f82 Fed. Reg. at 3188 (emphases added). Although nearly all of the currently known RPBB\\n\\npopulations have been documented by at most 5 bees, FWS determined that the RPBB\\n\\npopulation in the high potential zone here includes 22 nests capable of producing 30 queen\\n\\nbees each, for a total of 660 queens produced each cycle. J.A. 1215. The number of queens\\n\\nper nest that FWS estimates is equal to the maximum number of total bees observed at any\\n\\none colony and does not include an estimate of the number of worker bees believed to be\\n\\npresent, which would no doubt be much higher than 30 per nest. The BiOp is silent on\\n\\nwhy these projections are reasonable in light of the known and documented record of\\n\\nseverely declining RPBB populations.\\n\\n The reasonableness of the 30-queens-per-nest figure also fails to find support in\\n\\nstudies of other species’ queen production rates cited by FWS. The 2018 BiOp cites to\\n\\nFWS’s August 2018 draft Voluntary Implementation Guidance for the RPBB as support\\n\\nfor its 30-queens-per-nest estimate. J.A. 1184–85, 1253. That draft guidance explains that\\n\\ntwo studies of two colonies of common and abundant buff-tailed bumble bees reared in\\n\\nnest boxes (not in the wild) showed a production average of 14 and 31 queens, respectively.\\n\\nJ.A. 1127. In discussing those studies, the draft guidance notes that FWS “would expect\\n\\nnests in natural settings to produce fewer queens on average due to the increase in hazards\\n\\nrelative to nest boxes.” Id. Therefore, bees like the RPBB in the high potential zone would\\n\\nbe expected to produce fewer queens than RPBBs that were raised in nest boxes, free from\\n\\nmany of the perils found in nature. And because the RPBB is much less abundant than the\\n\\nbuff-tailed bumble bee, it would be logical to expect that RPBB queen production rates\\n\\nwould also be lower than those of the bees’ buff-tailed cousins. Nonetheless, FWS\\n\\n\\n 20\\n\\fconcluded that RPBBs, which are in significant decline, produce an average of 30 queens\\n\\nper nest in natural habitats, “similar to the higher of the two buff-tailed bumble bee\\n\\nstudies.” J.A. 1127 (emphasis added).\\n\\n The draft guidance also relies on a density range of 20 to 40 queens per nest, an\\n\\nestimate provided to FWS by Dr. Elaine Evans of the University of Minnesota. Id.\\n\\nHowever, in an email to FWS explaining the basis for that range, Dr. Evans stated, “All I\\n\\nhave is a wild guess based on what I’ve seen in other captive and retrieved wild colonies.\\n\\nRange would be 0 - ~ 100. My guess for an average per colony ignoring the ones that don’t\\n\\nproduce queens would be 20-40.” J.A. 929 (emphases added).\\n\\n FWS’s sole explanation in its draft guidance for its use of the 30-queens-per-nest\\n\\nfigure is that it is the midpoint of the range “guess[ed]” by Dr. Evans and similar to the\\n\\nhigher of the two buff-tailed bumble bee studies. J.A. 1127; see J.A. 929. FWS fails to\\n\\nexplain why this evidence is the best available when all other evidence shows that the\\n\\nRPBB is in substantial decline and should not be compared to a common and abundant bee\\n\\nspecies—much less to the higher production rate of that species. And an expert’s “wild\\n\\nguess” inspires no additional confidence in the reasonableness of FWS’s estimate. See Ctr.\\n\\nfor Biological Diversity v. Bureau of Land Mgmt., 422 F. Supp. 2d 1115, 1127 (N.D. Cal.\\n\\n2006) (“To the extent that there is any uncertainty as to what constitutes the best available\\n\\nscientific information, Congress intended ‘to give the benefit of the doubt to the species.’”\\n\\n(quoting Conner v. Burford, 848 F.2d 1441, 1454 (9th Cir. 1988))).\\n\\n At bottom, FWS has arbitrarily estimated the number of RPBB nests and bees\\n\\npresent in the high potential zone. The agency has failed to connect the dots between the\\n\\n\\n 21\\n\\fstudies of other bee species on which it relies and the likely nest density and queen\\n\\nproduction rate of the RPBB. The agency has also ignored significant evidence that\\n\\nundermines the reasonableness of its estimates—evidence that the agency itself has\\n\\ngathered—and has instead chosen to rely on one bee expert’s “wild guess.” We agree with\\n\\nPetitioners that these arbitrary calculations demonstrate the overall arbitrariness of FWS’s\\n\\nno-jeopardy finding with respect to the RPBB. See Dow AgroSciences LLC v. Nat’l Marine\\n\\nFisheries Serv., 707 F.3d 462, 473 (4th Cir. 2013) (explaining that, where agency’s data is\\n\\n“either outdated or inaccurate,” agency should, at the very least, explain why it nonetheless\\n\\nrelied on the data on which it did); Defs. of Wildlife, 762 F.3d at 396 (stating that agency\\n\\naction is arbitrary and capricious if the agency “offered an explanation for its decision that\\n\\nruns counter to the evidence before the agency”).\\n\\n 2. Inconsistencies in FWS’s Evidence\\n\\n Petitioners also argue that the 2018 BiOp’s conclusion that the ACP will not\\n\\njeopardize the RPBB is arbitrary because it is at odds with FWS’s own evidence of the\\n\\nimportance to RPBB survival of the bees likely to be killed by pipeline construction. We\\n\\nagree.\\n\\n According to the 2018 BiOp, ACP construction will impact RPBBs in two ways.\\n\\nFirst, it will indirectly reduce reproductive success because it will remove foraging\\n\\nresources that support queens and will crush worker bees. Second, it will directly impact\\n\\ncolony reproduction by crushing 8 overwintering queens and by impacting one colony,\\n\\nthereby preventing another 30 foundress queens from being produced. See J.A. 1282\\n\\n(describing impacts of ACP construction as crushing individual RPBBs, queens, or\\n\\n\\n 22\\n\\fcolonies; displacing worker bees, which could affect their ability to provide sufficient food\\n\\nresources to colony; and affecting the “quality, quantity, and timing of floral resources,\\n\\nthereby reducing survivability and reproductive success of queens”).\\n\\n As we just explained, the 2018 BiOp’s estimate of the number of RPBBs likely to\\n\\nexist in the high potential zone is arbitrary. Even assuming that estimate to be proper, the\\n\\nBiOp’s conclusion that ACP’s effects on the Bath County bee population do not jeopardize\\n\\nthe species is nonetheless arbitrary. Lost opportunities to interbreed enhance the effect of\\n\\nthe diploid male vortex, thereby leading to further population size decrease or even the loss\\n\\nof the population. See J.A. 1216 (“[A]s population size decreases, population growth rate\\n\\nalso tends to decrease and the risk of local extirpation increases.”). As FWS recognizes,\\n\\n“[l]oss of a colony or overwintering queen could reduce the health of a metapopulation due\\n\\nto lost opportunities to interbreed.” J.A. 1216. In fact, FWS has recognized that the RPBB\\n\\nis “so imperiled that every remaining population is important” for the species’ continued\\n\\nsurvival. J.A. 941; Resp. Br. 12.\\n\\n Yet, FWS concluded that the loss of not one but potentially 38 foundress queens is\\n\\n“not likely to negatively impact the fitness or survival of the population”—and\\n\\nconsequently of the species—because FWS assumes that the remaining 21 colonies\\n\\nbelieved to be in the high potential zone will not be significantly impacted by the ACP.\\n\\nJ.A. 1216–17. That is, FWS determined that the killing of more bees than have been found\\n\\nin most locations in the past two decades would not jeopardize the continued survival or\\n\\nrecovery of the RPBB.\\n\\n\\n\\n\\n 23\\n\\f The 2018 BiOp fails to square this determination with FWS’s other evidence that\\n\\n95% of the documented RPBB populations have been observed with 5 or fewer bees. 82\\n\\nFed. Reg. at 3205. While the death of a handful of bees may not be as significant to a\\n\\nhealthy bee population with tens to hundreds of thousands of bees, record evidence\\n\\nindicates that the RPBB population at issue is far from healthy. The 2018 BiOp fails to\\n\\nexplain why it is that the loss of 38 potential queens does not endanger the survival of the\\n\\nBath County RPBB population when the loss of “a colony or overwintering queen could\\n\\nreduce the health of a metapopulation.” J.A. 1216. Absent a reasoned discussion of the\\n\\nagency’s apparently contradictory positions about the species, we can only conclude that\\n\\nFWS acted arbitrarily in determining that the likely impacts of the ACP on the RPBB will\\n\\nnot jeopardize the species’ continued existence and recovery. Defs. of Wildlife, 762 F.3d\\n\\nat 396.\\n\\n 3. Status of the Species\\n\\n Petitioners also argue that the 2018 BiOp fails to account for the overall status of\\n\\nthe RPBB. In light of the precarious status of the species, we again agree with Petitioners.\\n\\n FWS’s Endangered Species Act Handbook instructs that the agency’s jeopardy\\n\\nconclusion should be made upon “reviewing the current status of” the species, in addition\\n\\nto the effects of the proposed action. J.A. 78; see Ctr. for Biological Diversity v. Salazar,\\n\\n695 F.3d 893, 913 (9th Cir. 2012) (explaining that a BiOp must address whether the\\n\\nproposed action is likely to jeopardize the continued existence of the listed species “as a\\n\\nwhole”). Here, the 2018 BiOp addresses the status of the RPBB in a short, four-sentence\\n\\nparagraph:\\n\\n\\n 24\\n\\f As described in Service (2016), the RPBB conservation needs include\\n assessing resiliency to environmental variation, perturbations\\n affecting habitat size and quality, and population size. Currently, the\\n rangewide status of the species is declining (82 FR 3186-3209). The\\n primary factors influencing the status include risks posed by\\n “pathogens, pesticides, habitat loss and degradation, small population\\n dynamics, and climate change” (82 FR 3186-3209). For a more\\n detailed account of the species description, life history, population\\n dynamics, threats, and conservation needs, refer to:\\n https://ecos.fws.gov/ecp0/profile/speciesProfile?spcode=I0WI.\\n\\nJ.A. 1172. In internal email correspondence, FWS recognized that its discussion of the\\n\\nstatus of the RPBB was “[n]ot in lock step with the handbook” and “a different read than\\n\\nthe usual multiple pages per species of species information.” J.A. 711; see J.A. 1172. 5\\n\\nNonetheless, FWS defends its BiOp because the BiOp states that it “considered the current\\n\\noverall declining status of the RPBB and the inferred condition of the species within the\\n\\naction area (environmental baseline),” J.A. 1221; incorporates FWS’s prior assessments of\\n\\nthe status of the RPBB, J.A. 1172; and contains a detailed description of baseline conditions\\n\\nin the action area, J.A. 1181–86. Resp. Br. 26. FWS also asserts that an agency action\\n\\n“can only ‘jeopardize’ a species’ existence if that agency action causes some deterioration\\n\\nin the species’ pre-action condition.” Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv.,\\n\\n524 F.3d 917, 930 (9th Cir. 2008).\\n\\n However, FWS ignores the corollary that “an agency may not take action that will\\n\\ntip a species from a state of precarious survival into a state of likely extinction.” Id. That\\n\\n\\n\\n 5\\n The author of that internal email expressed shock at the “brevity” of the 2018\\nBiOp’s status discussion. J.A. 711 (“Wow, is that a different read.”). And after\\nacknowledging that the status section was not in accordance with the agency’s handbook,\\nthe author added, “but we can get by that with my excessive wit, charm, and grace.” Id.\\nWit, charm, and grace, however, do not make for sound agency action.\\n\\n 25\\n\\fis, “even where baseline conditions already jeopardize a species, an agency may not take\\n\\naction that deepens the jeopardy by causing additional harm.” Id. FWS’s 2018 BiOp does\\n\\nnot show that the agency considered the fact that, without any human interference, the\\n\\nRPBB already faces jeopardy. See J.A. 395 (June 2016 report explaining that RPBB “may\\n\\nlack the resiliency required to sustain populations into the future, even without further\\n\\nexposure to stressors”). Although the BiOp states that the agency considered the “current\\n\\noverall declining status of the RPBB,” J.A. 1221, it omits any mention of the specifics of\\n\\nthat declining status. The BiOp says nothing of the fact that the species has declined by\\n\\nnearly 90% in the past two decades. Nor does it mention that FWS determined, only a year\\n\\nearlier, that the species is “so imperiled that every remaining population is important for\\n\\nits continued existence.” J.A. 941. Nor does it mention that FWS and agency scientists\\n\\nhave previously determined that the RPBB is “very much declining,” J.A. 764, is\\n\\n“vulnerable to extinction even without further external stressors (e.g., habitat loss,\\n\\ninsecticide exposure) acting upon the species,” J.A. 498, and is at “a high risk of\\n\\nextinction,” J.A. 507, 655.\\n\\n To the contrary, many of the assumptions that FWS makes about the RPBB suggest\\n\\nthat the agency considered the Bath County population as a healthy population. See J.A.\\n\\n1184 (assuming 30 new foundress queens produced per colony per cycle); J.A. 1185\\n\\n(relying on nest density of “common and abundant” buff-tailed bumble bee to determine\\n\\nRPBB nest density); J.A. 1215 (estimating that RPBBs in high potential zone will produce\\n\\ntotal of 660 queens each cycle). The 2018 BiOp’s failure to account for the species’s\\n\\n\\n\\n\\n 26\\n\\falready precarious state further renders its no-jeopardy determination arbitrary and subject\\n\\nto vacatur.\\n\\n 4. RPBB Recovery\\n\\n Petitioners’ final argument related to the BiOp’s no-jeopardy finding for the RPBB\\n\\nis that FWS considered only the pipeline’s effects on RPBB survival and ignored the effects\\n\\non RPBB recovery.\\n\\n A jeopardy evaluation must determine whether a proposed action “reasonably\\n\\nwould be expected, directly or indirectly, to reduce appreciably the likelihood of both the\\n\\nsurvival and recovery of a listed species.” 50 C.F.R. § 402.02 (emphasis added). FWS has\\n\\ndefined “recovery” as “improvement in the status of a listed species to the point at which\\n\\nlisting is no longer appropriate.” J.A. 81. That is, “recovery is the process by which\\n\\nspecies’ ecosystems are restored and/or threats to the species are removed so self-\\n\\nsustaining and self-regulating populations of listed species can be supported as persistent\\n\\nmembers of native biotic communities.” Id.\\n\\n “[I]t is hard to ‘draw clear-cut distinctions’ between survival and recovery.”\\n\\nCooling Water Intake Structure Coalition v. EPA, 905 F.3d 49, 76 (2d Cir. 2018) (quoting\\n\\n51 Fed. Reg. 19,926, 19,934 (June 3, 1986)); Nat’l Wildlife Fed’n, 524 F.3d at 932 n.11.\\n\\nAnd when evaluating a programmatic-level BiOp, other courts have not required “an\\n\\nindependent analysis of recovery.” Cooling Water, 905 F.3d at 76. Nonetheless, our sister\\n\\ncircuits have held that, in the context of “site-specific” BiOps like the BiOp at issue in this\\n\\ncase, recovery impacts, “like survival impacts, should be assessed.” Id.; see also Nat’l\\n\\nWildlife Fed’n, 524 F.3d at 932 (determining that agency acted arbitrarily when it failed to\\n\\n\\n 27\\n\\f“analyze effects on recovery as well as effects on survival” in site-specific BiOp). We\\n\\nagree with those courts. Under the plain language of its own regulations, FWS is required\\n\\nto assess “both the survival and recovery of a listed species.” 50 C.F.R. § 402.02 (emphasis\\n\\nadded). The agency is not permitted to resolve the difficulty of distinguishing between\\n\\nsurvival and recovery “by ignoring recovery needs and focusing entirely on survival.”\\n\\nNat’l Wildlife Fed’n, 524 F.3d at 932 n.11.\\n\\n Here, the 2018 BiOp makes no mention of the ACP’s impacts on RPBB recovery.\\n\\nThe BiOp explains the reasons for reproduction rate decline in the species and the likely\\n\\nimpact of pipeline construction on that decline. See J.A. 1215–16. It says nothing,\\n\\nhowever, about recovery, nor does it explain why the no-jeopardy conclusion is reasonable\\n\\ngiven the acknowledged mortality, injury, and reduced reproduction that pipeline\\n\\nconstruction will cause to the RPBB—effects that FWS’s Recovery Outline for the RPBB\\n\\nseeks to avoid. U.S. Fish and Wildlife Serv., Recovery Outline, at 7 (Sept. 5, 2018)\\n\\n[hereinafter Recovery Outline]. 6 While a separate and distinct section analyzing the\\n\\npipeline’s impact on RPBB recovery was not necessary, FWS was required to address the\\n\\n\\n 6\\n The Endangered Species Act requires the Secretary of the Interior to “develop and\\nimplement plans . . . for the conservation and survival of endangered species and threatened\\nspecies . . . , unless he finds that such a plan will not promote the conservation of the\\nspecies.” 16 U.S.C. § 1533(f)(1). Because the RPBB was listed as an endangered species\\nin January 2017, a recovery plan has not yet been developed for the species. Resp. Br. 28.\\nFWS, however, has prepared a Recovery Outline for the RPBB. The Recovery Outline,\\navailable on FWS’s website, is cited in the 2018 BiOp as a source of additional information\\nabout the status of the RPBB. J.A. 1172. The Recovery Outline includes an Interim\\nRecovery Program, which provides that “[i]mpacts to [RPBB] to avoid are those that may\\n(1) result in mortality or injury to rusty patched bumble bee; (2) reduce reproduction or\\nrecruitment of young into populations; (3) increase stress to remaining individuals in the\\nwild; or (4) alter habitat such that survival or reproduction is reduced.” Recovery Outline\\nat 7.\\n\\n 28\\n\\fimpacts of pipeline construction on the species’ recovery. See Rock Creek Alliance v. U.S.\\n\\nFish and Wildlife Serv., 663 F.3d 439, 443 (9th Cir. 2011) (upholding BiOp when it failed\\n\\nto “address the bull trout recovery issue in separate, distinct sections” but nonetheless\\n\\ndiscussed “the rate of recovery” of the species throughout the BiOp). Because the agency\\n\\n“entirely failed to consider an important aspect of the problem,” Sierra Club, 899 F.3d at\\n\\n293, the omission of any discussion of the impact on the species’s recovery constitutes yet\\n\\nanother ground on which we find the 2018 BiOp’s no-jeopardy determination arbitrary.\\n\\n * * *\\n\\n In sum, the 2018 BiOp’s conclusion that the ACP will not jeopardize the RPBB in\\n\\nBath County, Virginia, is arbitrary and capricious because it runs counter to available\\n\\nevidence, relies on data without providing a meaningful basis for that reliance, fails to\\n\\nconsider the species’s status as a whole, and fails to consider the pipeline’s impacts on\\n\\nRPBB recovery. See Defs. of Wildlife, 762 F.3d at 396.\\n\\n B. Clubshell\\n\\n Turning to the 2018 BiOp’s evaluation of pipeline impacts on the clubshell, we find\\n\\nthat FWS arbitrarily concluded that the ACP will not jeopardize the continued existence of\\n\\nthis species.\\n\\n The clubshell, a freshwater mussel, lives in “clean, stable, coarse sand and gravel\\n\\nruns” in rivers and streams. J.A. 138. It typically burrows entirely beneath the riverbed to\\n\\na depth of 2 to 4 inches. In fact, more than 70% of a stream’s clubshell population “may\\n\\nbe hidden below the substrate surface.” Id. Because of this, FWS has explained that\\n\\n“qualitative population estimates must take into account undetected individuals” and has\\n\\n\\n 29\\n\\fwarned that low density population estimates “may have large margins of error due to\\n\\nundetected mussels.” J.A. 139.\\n\\n When the waterway in which clubshell live undergoes a period of heavy\\n\\nsedimentation, the clubshell close their valves to avoid irritation and clogging of their\\n\\nfeeding structures. If excessive sediment remains suspended in the waterway, the\\n\\nclubshell’s gills may become overwhelmed, leading the clubshell to reduce its intake of\\n\\nfood and water, or to completely close altogether. Clubshell also rely on oxygen that is\\n\\ndissolved in the water that percolates through the riverbed. Excessive sedimentation\\n\\nreduces the level of oxygen that is dissolved in the water and can block water from\\n\\npercolating through the streambed, causing resident clubshell to suffocate.\\n\\n The clubshell was listed as an endangered species in 1993. There remain only 13\\n\\nknown populations of clubshell occupying 21 streams. The clubshell’s numbers total more\\n\\nthan 1 million, but a majority of that population lives in 1 river, and only 7 of the 13\\n\\npopulations show evidence of reproductive success.\\n\\n In West Virginia, the clubshell occupies three streams: the Monongahela, Kanawha,\\n\\nand Ohio Rivers. The Monongahela River’s sole remaining clubshell population lives in\\n\\nHackers Creek. The West Virginia Division of Natural Resources (“WVDNR”) has\\n\\nmonitored the Hackers Creek population on a long-term basis, conducting monitoring\\n\\nsurveys every 5 years. In 2004, a total of 38 clubshell were observed at the monitoring\\n\\nsite. J.A. 1179. An additional 18 clubshell found further downstream were relocated to\\n\\nthe monitoring site because the monitoring site was safer. This brought the total number\\n\\nof clubshell at the monitoring site to 56. In 2009, only 29 clubshell were observed at the\\n\\n\\n 30\\n\\fmonitoring site. And in 2014, 19 were documented. Id. During those surveys, no juvenile\\n\\nor “gravid” (pregnant) clubshell were observed.\\n\\n WVDNR and FWS have had “long-standing concerns about the status of the\\n\\nHackers Creek population.” J.A. 1011. The two agencies began meeting in early 2017 to\\n\\ndiscuss necessary recovery actions for the creek. As a product of those discussions, FWS\\n\\nissued a recovery permit under section 10(a)(1) of the ESA to White Sulphur Springs\\n\\nNational Fish Hatchery. 7 That permit allowed White Sulphur Springs to collect, hold, and\\n\\npropagate clubshell from Hackers Creek “to address ongoing declines in the population\\n\\nand prevent loss of the population’s genetic material.” J.A. 1179. It is unclear from the\\n\\nrecord whether, and to what extent, White Sulphur Springs has engaged in such recovery\\n\\nwork.\\n\\n As currently projected, 6.4 miles of pipeline construction right-of-way and 11.9\\n\\nmiles of access roads will exist in the upstream drainage area of Hackers Creek. J.A. 1180.\\n\\nSix tributaries of Hackers Creek will also be crossed by the pipeline. ACP construction\\n\\nwill therefore affect the “entire length” of Hackers Creek. J.A. 1199. It will lead to\\n\\nincreased sedimentation and turbidity in the creek, which will lead in turn to impaired\\n\\nfeeding for the clubshell population there. FWS expects this to result in depressed rates of\\n\\ngrowth, reproduction, and recruitment as Hackers Creek clubshell experience reduced\\n\\nphysiological function, suffocation, and even death. ACP construction also may\\n\\n\\n\\n 7\\n Section 10(a)(1) of the ESA provides in relevant part that “[t]he Secretary may\\npermit, under such terms and conditions as he shall prescribe . . . any act otherwise\\nprohibited by section 1538 of this title for scientific purposes or to enhance the propagation\\nor survival of the affected species.” 16 U.S.C. § 1539(a)(1)(A).\\n\\n 31\\n\\f“permanently alter and degrade” the Hackers Creek habitat to the point where it will no\\n\\nlonger be “favorable” for clubshell. Id.\\n\\n Because of the extent of these effects to Hackers Creek, FWS’s 2017 BiOp required\\n\\nAtlantic to salvage and relocate clubshell prior to pipeline construction. In April 2018,\\n\\nAtlantic obtained a section 10(a)(1) permit to salvage the population. The approved\\n\\nsalvage plan provided that the Hackers Creek clubshell population would be captured and\\n\\ntransported to White Sulphur Springs, where the clubshell would be “held and propagated”\\n\\nfor a 2-year period before reintroduction into the Monongahela River. J.A. 1180. Three\\n\\nindependent salvage efforts were scheduled to take place. The first two were conducted in\\n\\nMay and July 2018, during which 56 live clubshell and 12 live clubshell were collected,\\n\\nrespectively. The third salvage effort has not yet been conducted.\\n\\n Two months after the salvage efforts, FWS issued its 2018 BiOp, concluding that\\n\\npipeline construction will not jeopardize the clubshell species. In discussing the baseline\\n\\nconditions in Hackers Creek, the 2018 BiOp explains that the creek currently suffers from\\n\\na high sediment load due to agricultural practices, oil and gas activities, and river bank\\n\\ninstability. Despite the current sedimentation that threatens the Hackers Creek clubshell,\\n\\nFWS concluded that the additional sedimentation from the proposed pipeline will both\\n\\naffect those clubshell that are not salvaged and “degrade/alter clubshell habitat.” J.A. 1199.\\n\\nEven though strong water flows, such as those caused by storms, are expected to flush\\n\\n“some” of the additional sediment downstream of the clubshell population, “the quality of\\n\\nthe habitat will have decreased due to sediment remaining within interstitial spaces in the\\n\\n\\n\\n\\n 32\\n\\fsubstrate.” J.A. 1200. Therefore, as a result of ACP construction, the Hackers Creek\\n\\npopulation is expected to “remain below pre-construction numbers.” J.A. 1214.\\n\\n Notwithstanding these effects, FWS concluded that adverse impacts to the entirety\\n\\nof the Hackers Creek population will not prevent FWS from meeting the Recovery Criteria\\n\\nfor the species as a whole because the Hackers Creek population shows no “evidence of\\n\\nreproductive success.” J.A. 1214. The Recovery Criteria for the clubshell require that\\n\\nviable clubshell populations be established in 10 separate drainages. “Viable” populations\\n\\nare those that “consist[ ] of sufficient numbers of reproducing individuals to maintain a\\n\\nstable or increasing population.” J.A. 38. Eight recovery drainages (rivers) have been\\n\\ndesignated, and the other two have yet to be designated. The 2018 BiOp concluded that\\n\\nthe Hackers Creek population was unlikely to be designated as one of the additional two\\n\\ndrainages because its population is not reproducing. And, according to the 2018 BiOp, the\\n\\nfact that 68 clubshell were salvaged in 2018 while only 19 were documented in 2014 did\\n\\nnot mean that the Hackers Creek population had increased; “the level of effort and survey\\n\\narea for the salvage effort differs from that of the long-term monitoring efforts,” thus “the\\n\\nresults are not comparable.” J.A. 1180.\\n\\n There are several flaws with the reasoning behind FWS’s no-jeopardy conclusion.\\n\\nFirst, the premise that only those members of an endangered species that can naturally\\n\\ncontribute to the species’s recovery should be protected is unsupported by legal authority.\\n\\nThe Ninth Circuit has held that “except in exceptional circumstances, [a project’s] injury\\n\\nto recovery alone would not warrant [a jeopardy finding].” Nat’l Wildlife Fed’n, 524 F.3d\\n\\nat 932 (second alteration in original) (quoting 51 Fed. Reg. at 19,934). However, FWS\\n\\n\\n 33\\n\\fpoints to no legal authority to support the inverse of that holding—that a lack of injury to\\n\\nrecovery alone warrants a no-jeopardy finding. While “they are not necessarily mutually\\n\\nexclusive, recovery and jeopardy are two distinct concepts.” Cascadia Wildlands v.\\n\\nThrailkill, 806 F.3d 1234, 1244 (9th Cir. 2015). Additionally, as we explained earlier, the\\n\\nESA requires that FWS determine whether a proposed action “reasonably would be\\n\\nexpected, directly or indirectly, to reduce appreciably the likelihood of both the survival\\n\\nand recovery of a listed species.” 50 C.F.R. § 402.02 (emphasis added). Like jeopardy\\n\\nand recovery, the concepts of survival and recovery are also distinct and must each be\\n\\nevaluated.\\n\\n To be sure, the ESA is aimed at promoting self-sustaining populations. See Trout\\n\\nUnlimited v. Lohn, 559 F.3d 946, 957 (9th Cir. 2009); H.R. Rep. No. 95–1625 (1978), at\\n\\n5, reprinted in 1978 U.S.C.C.A.N. 9453, 9455. However, the ESA is not focused\\n\\nexclusively on protecting those populations that currently are naturally reproductive; it\\n\\ncontemplates that artificial propagation may be necessary to “bring any endangered species\\n\\nor threatened species to the point at which the measures provided pursuant to [the ESA]\\n\\nare no longer necessary.” 16 U.S.C. § 1532(3). Therefore, a determination that a\\n\\npopulation’s current nonreproductive status is sufficient grounds to conclude that a listed\\n\\nspecies will not be jeopardized is not in line with the law.\\n\\n Indeed, FWS’s own regulations suggest that a specific population’s impact on the\\n\\nspecies’s recovery is not dispositive of a jeopardy analysis. Those regulations provide that\\n\\na proposed action jeopardizes the species at issue if it is likely to reduce “the reproduction,\\n\\nnumbers, or distribution of that species.” 50 C.F.R. § 402.02 (emphasis added). The\\n\\n\\n 34\\n\\fability to reproduce is only one of three things that FWS considers. And the 2018 BiOp\\n\\nindicates that pipeline construction will reduce clubshell numbers. The anticipated changes\\n\\nin habitat, “resulting in sublethal effects on growth and reproduction or starvation with\\n\\nlong-term exposure,” will affect “a majority of individual mussels,” and the Hackers Creek\\n\\npopulation will remain “below pre-construction numbers” even after higher river flows\\n\\nclear away some of the additional sedimentation from the pipeline. J.A. 1213–14\\n\\n(emphasis added). The BiOp does not explain why the reduction in numbers itself poses\\n\\nno jeopardy to the species.\\n\\n A second problem with the 2018 BiOp’s no-jeopardy determination is that its sole\\n\\nfocus on reproduction does not accord with FWS’s own Recovery Criteria for the clubshell.\\n\\nThe designation of recovery drainages in the Recovery Criteria did not depend on the\\n\\nnatural reproductive abilities of the clubshell located in those rivers. At the time the\\n\\nRecovery Criteria were issued in 1994, FWS’s Recovery Plan indicated that it was\\n\\nunknown if the population in Green River (one of the designated drainages) was\\n\\nreproducing. J.A. 24. The Recovery Plan also indicated that “many individuals” in the\\n\\nEast Fork West Branch of the St. Joseph River (another designated drainage) were adults\\n\\n“in excess of 12 years old.” Id. And “[m]ore research” was needed to determine the status\\n\\nof the clubshell population in Elk River (another designated drainage). Id. In FWS’s 2008\\n\\nclubshell review, the agency noted that reproducing populations of clubshell had been\\n\\ndocumented in 7 of the 8 listed waterways; Fish Creek did not show evidence of\\n\\nreproduction, yet it continues to be a designated drainage crucial for the species recovery.\\n\\n\\n\\n\\n 35\\n\\fJ.A. 137–38. 8 The 2018 BiOp fails to explain why those populations, with no documented\\n\\nnatural reproduction, were nonetheless designated as crucial to the recovery of the clubshell\\n\\nbut the Hackers Creek population would not be.\\n\\n Perhaps more troubling, however, is that the Recovery Criteria were issued in 1994,\\n\\n25 years ago, and by FWS’s own admission, the “recovery plan . . . is out of date.” J.A.\\n\\n135. FWS’s 2008 5-year review of the clubshell noted that the agency could not rely on\\n\\ndata in the outdated recovery plan and, therefore, relied on data provided by other sources.\\n\\nId. That 5-year review also acknowledged that the Recovery Criteria “are vague” in that,\\n\\namong other things, “[p]opulation viability is not defined” and population and habitat\\n\\nprotection are “not well-defined.” J.A. 138. Yet, FWS continues to rely on the 25-year-\\n\\nold Recovery Criteria, based on concededly outdated data, and relied on that Criteria and\\n\\nthe 1993 data underlying the Criteria in its no-jeopardy determination here. See J.A. 1181\\n\\n(citing to 1993 survey data as evidence of clubshell’s likely presence in upstream area);\\n\\nJ.A. 1214 (relying on 1994 Recovery Criteria in determining that ACP construction will\\n\\nnot jeopardize the Hackers Creek clubshell).\\n\\n The agency’s reliance on out-of-date information also calls into question the\\n\\nreasonableness of FWS’s estimate of the number of clubshell present in Hackers Creek and\\n\\nlikely to be impacted by the ACP. It is true that FWS updated its estimate of the area\\n\\noccupied by the Hackers Creek clubshell based on data gathered during the 2018 salvage\\n\\nefforts. And yet, it continues to rely on the 1993 survey data to conclude that clubshell are\\n\\n\\n 8\\n When Fisk Creek was designated as a recovery drainage in 1994, even “[l]iving”\\nclubshell in the creek were “rare.” J.A. 24. Yet, that creek was deemed necessary to\\nachieve recovery of the species.\\n\\n 36\\n\\fnot likely to be present further upstream. J.A. 1181. The BiOp reaches this conclusion\\n\\nwhile acknowledging that the habitat “improves upstream” of the salvage area and without\\n\\nexplaining why the 1993 survey data is still reliable. Id. This is particularly problematic\\n\\nbecause the 1993 survey data indicated that “no mussels of any species were found in the\\n\\nupstream area,” but in more recent conversations with WVDNR about the upstream habitat,\\n\\nFWS was simply informed that the upstream beds were less diverse—not that they were\\n\\nnon-existent, as the 1993 survey found. Id. The 2018 BiOp fails to explain why the 1993\\n\\nsurvey remains the best available information on which to base estimates of the location of\\n\\nthe clubshell population. 9\\n\\n Nor does the 2018 BiOp sufficiently explain the discrepancies between the number\\n\\nof clubshell observed during the 5-year monitoring surveys and the number recovered\\n\\nduring the 2018 salvage efforts. The BiOp notes that the “level of effort and survey area\\n\\nfor the salvage effort differs from that of the long-term monitoring efforts,” J.A. 1180, but\\n\\nfails to elaborate. The BiOp provides no information regarding the manner in which either\\n\\nthe monitoring surveys or the salvage efforts were conducted. While the higher number of\\n\\nclubshell recovered during the salvage efforts is not necessarily indicative of reproductive\\n\\nsuccess, as Petitioners argue, the higher number—more than triple that of the most recent\\n\\nmonitoring survey—does cause us to question whether the monitoring surveys are the best\\n\\navailable information regarding the Hackers Creek population. This is particularly the case\\n\\n\\n 9\\n As a result of the salvage effort, FWS expanded the zone in which it believes\\nclubshell to exist to 7.6 kilometers upstream, which is approximately 4.72 miles. J.A. 1181.\\nA 2015 survey of the area 3.2 miles upstream had revealed no clubshell. J.A. 1179.\\nTherefore, the salvage effort uncovered clubshell in that upstream area that previously had\\nnot been documented.\\n\\n 37\\n\\fbecause, by its nature, the clubshell is difficult to detect: 70% of a clubshell population\\n\\nmay be burrowed; “[r]eproducing clubshell populations are often hard to detect when\\n\\ndensities are very low or surveys are single-day, catch-per-unit efforts”; “sparsely\\n\\ndistributed juveniles used to document successful reproduction are likely even more\\n\\ndifficult to detect”; and clubshell are less susceptible to capture at times outside of their\\n\\ngravid period. J.A. 139 (2008 clubshell review); J.A. 931.\\n\\n In light of the apparent conflicts of more recent information with the 1993 survey,\\n\\nthe much higher number of clubshell detected in 2018 than in previous surveys, and FWS’s\\n\\nown admission that the recovery plan on which it relies is outdated, FWS was required to\\n\\n“at the very least, . . . explain why it nevertheless chose to rely on the older data.” Dow\\n\\nAgroSciences LLC, 707 F.3d at 473. As a reviewing court, “we should not silently rubber\\n\\nstamp agency action that is arbitrary and capricious in its reliance on old data without\\n\\nmeaningful comment on the significance of more current compiled data.” Id. (quoting\\n\\nSierra Club v. EPA, 671 F.3d 955, 968 (9th Cir. 2012)).\\n\\n For the above reasons, we conclude that the 2018 BiOp’s finding that the clubshell’s\\n\\ncontinued survival will not be jeopardized by ACP construction is not in accordance with\\n\\nthe law and fails to consider important aspects of the issue before the agency. Alaska Dep’t\\n\\nof Envtl. Conservation, 540 U.S. at 496–97; Defs. of Wildlife, 762 F.3d at 396.\\n\\n C. Indiana Bat\\n\\n Petitioners also challenge FWS’s take limit for the Ibat. For the reasons that follow,\\n\\nwe agree that the take limit fails to satisfy the criteria for a proper surrogate habitat.\\n\\n\\n\\n\\n 38\\n\\f The Ibat is an endangered migratory bat. Sierra Club, 899 F.3d at 278. Between\\n\\n2015 and 2017, the number of Ibats in Virginia and West Virginia declined. In Virginia,\\n\\nthe population declined 8.4%, and only 425 Ibats were estimated to live in the state in 2017.\\n\\nIn West Virginia, the decline was more severe: the population decreased by 54.7% to a\\n\\ntotal of 1,076 Ibats. J.A. 1189.\\n\\n The ACP action area will cross through the Indiana Bat Appalachian Mountain\\n\\nRecovery Unit in both states. Four categories of Ibat habitat will be crossed: (1) suitable\\n\\nunoccupied summer habitat, suitable for Ibat occupation but in which Ibats have not been\\n\\ndetected during the summer; (2) known use summer habitat, which includes roosting trees\\n\\nand is likely to contain a maternity colony of bats; (3) unknown use spring staging/fall\\n\\nswarming habitat, which is unsurveyed habitat within 5 miles of habitat suitable for winter\\n\\nhibernation (“hibernacula”); and (4) known use spring staging/fall swarming habitat, which\\n\\nis habitat within a 5-mile radius of known hibernacula. At issue in this appeal is the\\n\\npipeline’s effect on Ibats in the first category of habitat, the suitable unoccupied summer\\n\\nhabitat.\\n\\n When FWS issued its 2017 BiOp, a majority of the scheduled surveys for Ibat\\n\\npresence had been completed. While 4 surveys were pending in Virginia at the time, other\\n\\nfollow-up surveys in Virginia had been conducted and surveys in West Virginia were\\n\\ncomplete. The completed surveys were negative for Ibat presence in the unoccupied\\n\\nsummer habitat. J.A. 843. 10 Yet, as the 2017 BiOp explained, FWS anticipated that tree\\n\\n\\n\\n 10\\n Ibats were acoustically detected at 17 sites along the proposed pipeline route, but\\nfollow-up mist-net surveys did not capture any Ibats. J.A. 843, 1190.\\n\\n 39\\n\\fclearing on 3,275 acres of suitable unoccupied summer habitat would indirectly impact the\\n\\nIbat, particularly those Ibats “searching for potential roosting sites and those traveling\\n\\nthrough the area.” J.A. 854. This is because Ibats do not travel through zones that do not\\n\\nhave tree cover and would, therefore, not travel through unoccupied summer habitat once\\n\\nthat habitat was cleared. FWS anticipated that the greatest effects of tree clearing in this\\n\\nhabitat would be felt by the “pregnant females that expend additional energy to seek\\n\\nalternate travel corridors as a result of tree clearing.” Id. As a result of the expended\\n\\nenergy to seek alternative travel routes, pregnant Ibats could give birth to smaller pups,\\n\\n“which could decrease pup survival.” Id.\\n\\n In its 2017 ITS, which we vacated, FWS relied entirely on a habitat surrogate, after\\n\\nit improperly failed to explain why using a numeric take limit was impractical. Sierra\\n\\nClub, 899 F.3d at 279–80. Rather than use a numeric limit, the agency used a multiplier to\\n\\ndetermine that Atlantic could take half of the total suitable unoccupied summer habitat.\\n\\nId. 11 FWS did not explain the basis for that multiplier. We determined that this take limit\\n\\nlacked, among other things, a proper causal link between the Ibat and the “geographic\\n\\nbounds of the take limit.” Id. at 278–80. As we explained, “FWS knew that the pipeline\\n\\nwill directly affect 3,275.382 acres of suitable unoccupied summer habitat . . . [y]et,\\n\\nwithout any explanation, the agency set the take limit for [this habitat] at half of the[ ]\\n\\nacreage[ ]. In other words, FWS set the take limit at half the affected bat habitat that it\\n\\nknows the pipeline is going to affect.” Id. at 279. Because FWS knew that the pipeline\\n\\n\\n 11\\n The 2017 ITS also set take limits for the other three categories of Ibat habitat that\\nwould be impacted by pipeline construction. See Sierra Club, 899 F.3d at 279. The take\\nlimits of those other three categories of Ibat habitat are not at issue in this appeal.\\n\\n 40\\n\\fwould exceed the geographic bounds placed on the take, the take limit was arbitrary. Id.\\n\\nat 280.\\n\\n In an apparent attempt to correct the mistakes that we identified with the 2017 ITS,\\n\\nFWS has now set both a numeric take limit (2 Ibats) as well as an acreage limit (as a habitat\\n\\nsurrogate). As the 2018 BiOp explains, “there are challenges associated with measuring\\n\\ntake in terms of individuals.” J.A. 1230. Thus, FWS chose to use both limits, such that a\\n\\ntaking of more than 2 Ibats or more than the acreage limit will constitute an unlawful\\n\\ntaking.\\n\\n Petitioners do not challenge the numeric take limit. Rather, they challenge the\\n\\nhabitat surrogate. An ITS must “[s]pecif[y] the impact, i.e., the amount or extent, of such\\n\\nincidental taking on the species.” 50 C.F.R. § 402.14(i)(1)(i). Once FWS has established\\n\\nthe amount of the take in the ITS, a project proponent may not lawfully take any members\\n\\nof the listed species above and beyond that amount without further authorization from the\\n\\nagency. Although numeric take limits are preferred, FWS may instead employ a habitat\\n\\nsurrogate to establish a take limit when setting a numeric take limit is impractical. Id. For\\n\\na habitat surrogate to be proper, FWS regulations require three elements: (1) “FWS must\\n\\ninclude a description of ‘the causal link between the surrogate and take of the listed\\n\\nspecies’”; (2) “FWS must explain ‘why it is not practical to express the amount or extent\\n\\nof anticipated take or to monitor take-related impacts in terms of individuals of the listed\\n\\nspecies’”; and (3) “FWS must set ‘a clear standard for determining when the level of\\n\\nanticipated take has been exceeded.’” Sierra Club, 899 F.3d at 271 (quoting 50 C.F.R.\\n\\n§ 402.14(i)(1)(i)).\\n\\n\\n 41\\n\\f FWS abandoned the use of multipliers in establishing a habitat surrogate in its 2018\\n\\nITS. Instead, the agency entirely eliminated the 3,275 acres of unoccupied summer habitat\\n\\nfrom the habitat surrogate, which now consists only of:\\n\\n • 137.5 acres of known use summer habitat in West Virginia;\\n\\n • 178.1 acres of unknown use spring staging/fall swarming habitat in West\\n Virginia; and\\n\\n • 703.0 acres of known use spring staging/fall swarming habitat, which\\n consists of 283 acres in Virginia and 420 acres in West Virginia.\\n\\nJ.A. 1232.\\n\\n Explaining the absence of suitable unoccupied summer habitat from its calculus,\\n\\nFWS now takes the position that “[r]emoving large areas of trees when Ibat surveys were\\n\\nnegative, i.e., in unoccupied summer habitat, is presumed not to result in indirect effects to\\n\\nIbats because survey results indicate they are not currently occupying the area.” J.A. 1190.\\n\\nAs FWS explains, “negative survey results are considered probable absence for Ibats and\\n\\nthe correct determination for project effects in these instances is ‘not likely to adversely\\n\\naffect’ the Ibat regardless of the amount of acres being cleared. This interpretation of Ibat\\n\\nnegative survey results is used by other field offices and regions of [FWS].” Id. Whereas\\n\\nthe 2017 BiOp indicated that a “majority” of the impacts to Ibats would be caused by the\\n\\nclearing of the suitable unoccupied summer habitat, J.A. 920, the 2018 BiOp concludes\\n\\nthat no adverse impacts will result.\\n\\n The 2018 BiOp offers no cogent explanation for this about-face. It makes no\\n\\nmention of the 2017 BiOp’s findings that clearing this habitat will have several anticipated\\n\\nindirect impacts, including the expenditure of additional travel energy by pregnant females,\\n\\n\\n\\n 42\\n\\fwhich could lead to decreased pup survival, and increased risk of predation, leading to\\n\\ninjury or death. J.A. 920. Instead, it relies on the fact that completed Ibat surveys were\\n\\nnegative for Ibat presence in the unoccupied summer habitat; because those surveys were\\n\\nnegative, the BiOp “presume[s]” that clearing trees in that habitat will not “result in indirect\\n\\neffects to Ibats.” J.A. 1190. But a majority of those surveys had been completed at the\\n\\ntime the 2017 BiOp and ITS were issued. Therefore, the conclusions of the 2017 BiOp\\n\\nwere made with the benefit of most of the surveys, surveys that showed no Ibat presence\\n\\nat the time. The 4 Virginia surveys that had not been completed at the time have produced\\n\\nno new evidence; the completed surveys merely confirmed what FWS already knew in\\n\\n2017—that Ibats were not detected in the unoccupied summer habitat. Thus, the newly\\n\\ncompleted surveys do not explain the complete change in position that FWS now takes.\\n\\n The 2018 BiOp’s reliance on the practices of other field offices does not rescue its\\n\\narbitrary change in view. The BiOp states that the agency’s new position—that negative\\n\\nIbat surveys support a presumption of no indirect effects to Ibats in the unoccupied\\n\\nhabitat— is in line with that taken by other unnamed field offices of the agency. However,\\n\\nthis particular field office already determined that, for this particular project, clearing over\\n\\n3,000 acres of suitable unoccupied summer habitat will cause “the majority of effects to\\n\\nIbats from tree clearing.” J.A. 920 (2017 BiOp). The 2018 BiOp and ITS fail to explain\\n\\nwhy the practice of other field offices is now dispositive and renders this field office’s\\n\\nprevious findings erroneous.\\n\\n Moreover, the 2018 BiOp’s conclusion is in conflict with the evidence before the\\n\\nagency. As FWS notes in the BiOp, two of the “primary factors” that influence the Ibat’s\\n\\n\\n 43\\n\\fstatus are “habitat loss and degradation” and “forest fragmentation.” J.A. 1172. In light\\n\\nof those known primary threats to the Ibat, it takes little more than common sense to deem\\n\\narbitrary FWS’s conclusion that clearing unoccupied yet suitable forest habitat, “regardless\\n\\nof the amount of acres being cleared,” J.A. 1190, will have no impacts on the species.\\n\\n While FWS is “entitled to change its view[,] . . . it is obligated to explain its reasons\\n\\nfor doing so.” State Farm, 463 U.S. at 56. Because FWS has abandoned without a cogent\\n\\nexplanation its earlier determination that clearing thousands of acres of suitable unoccupied\\n\\nsummer Ibat habitat will indirectly impact the Ibat and ignores evidence of what the agency\\n\\npreviously considered a substantial cause of take, the 2018 ITS fails to articulate a “causal\\n\\nlink between the surrogate and take” of the Ibat. 50 C.F.R. § 402.14(i)(1)(i); see Sierra\\n\\nClub, 899 F.3d at 271 (“A ‘causal link’ is an ‘articulated, rational connection’ between the\\n\\nactivity and the taking of the species.” (quoting Ariz. Cattle Growers’ Ass’n v. U.S. Fish\\n\\nand Wildlife, Bureau of Land Mgmt., 273 F.3d 1229, 1250–51 (9th Cir. 2001))). And\\n\\nbecause FWS acknowledges that a numeric take limit will not sufficiently account for the\\n\\nincidental taking of Ibats, the 2018 ITS fails to establish a “clear standard for determining\\n\\nwhen the level of anticipated take has been exceeded.” 50 C.F.R. § 402.14(i)(1)(i). Thus,\\n\\nFWS has improperly failed to specify the impact of such incidental taking on the Ibat. Id.\\n\\n D. Madison Cave Isopod\\n\\n Petitioners’ final challenge to FWS’s 2018 action is to the take limits imposed for\\n\\nthe MCI. The MCI is “a threatened subterranean freshwater crustacean about a half-inch\\n\\nin size.” Sierra Club, 899 F.3d at 277. The MCI lives in underground phreatic karst waters\\n\\n\\n\\n\\n 44\\n\\fin the Shenandoah Valley in Virginia. It was listed as a threatened species in November\\n\\n1982.\\n\\n According to both the 2017 and 2018 BiOps, ACP construction rights-of-way,\\n\\nadditional temporary work space, and access roads will impact 25 miles of MCI potential\\n\\nhabitat. Pipeline construction will crush or smother these crustaceans. Construction will\\n\\nalso lead to a temporary reduction in feeding or reproduction and will cause sediment to\\n\\nenter the subsurface habitat, rendering that habitat temporarily or permanently unsuitable\\n\\nfor MCI use.\\n\\n Because of the MCI’s small size, subterranean habitat, and a lack of effective survey\\n\\nprotocols, FWS cannot practically estimate the number of MCI that may be taken by ACP\\n\\nconstruction. Therefore, FWS relies on a habitat surrogate to establish take limits. We\\n\\npreviously concluded that the agency’s reliance on a habitat surrogate is proper because\\n\\n“FWS has shown that a numeric take limit is not practical here.” Sierra Club, 899 F.3d at\\n\\n278. At issue, however, is the soundness of that habitat surrogate. Reviewing the 2018\\n\\nhabitat surrogate, we conclude that FWS again has established an arbitrary take limit for\\n\\nthis species.\\n\\n A comparison of the agency’s 2017 and 2018 decisions is helpful. The 2017 BiOp\\n\\nfound that a total of 1,974 acres of potential MCI habitat in Augusta County, Virginia, will\\n\\nbe affected by ACP construction. Although there have been no documented MCI\\n\\n“localities” in the proposed construction right-of-way or additional temporary workspace,\\n\\nFWS assumed MCI presence at Cochran’s Cave in Augusta County. J.A. 865. That cave\\n\\nbisects the construction right-of-way and temporary workspace across 11.2 acres. That\\n\\n\\n 45\\n\\f11.2-acre area will be displaced during pipeline construction. Due to the karst terrain, FWS\\n\\ndetermined that the ground-disturbing activities within this 11.2-acre zone will have ripple\\n\\neffects extending out half a mile, such that MCI will be taken in a total of 896.7 acres.\\n\\nAccording to the 2017 ITS, pipeline construction will kill a “[s]mall percent of” MCI in\\n\\nthe 11.2-acre area and harm or harass “[a]ll individuals present within the 896.7 acres.”\\n\\nJ.A. 872–73. The ITS said nothing about take of MCI within the remainder of the 1,974\\n\\nacres of MCI habitat impacted by the ACP.\\n\\n Like the 2017 BiOp, the 2018 BiOp indicates that pipeline construction will impact\\n\\na total of 1,974 acres of potential MCI habitat. J.A. 1228. The 2018 BiOp also assumes\\n\\nMCI presence at Cochran’s Cave. J.A. 1188. The 2018 BiOp again explains that pipeline\\n\\nconstruction will displace 11.2 acres at Cochran’s Cave and that construction materials and\\n\\nsediment released onto the surface or subsurface karst terrain due to the ground disturbing\\n\\nactivities in that 11.2-acre zone may reach MCI up to half a mile away. Therefore, FWS\\n\\nanticipates that pipeline construction will impact MCI in the 11.2 acres as well as across\\n\\nan additional 885.5 acres (the 896.7-acre zone used as a habitat surrogate in the 2017 ITS).\\n\\nId.\\n\\n This time, however, FWS has chosen to use as a habitat surrogate only the 11.2\\n\\nacres that will be directly displaced by construction. The 2018 ITS explains that only the\\n\\n11.2 acres are used as a habitat surrogate “because that is the area that [FWS] can actually\\n\\nmeasure and monitor.” J.A. 1228. The BiOp elaborates on the take limit; it explains that\\n\\nthe effects on the MCI that are anticipated in the additional 885.5 acres are the result of\\n\\nground-disturbing activities performed within the 11.2-acre zone, and a habitat surrogate\\n\\n\\n 46\\n\\fof ground-disturbing activities within that 11.2-acre zone will therefore account for the\\n\\ntake of MCI within the entire 896.7-acre area. J.A. 1202. Like its predecessor, the 2018\\n\\nBiOp and ITS say nothing of the potential take of MCI within the remainder of the 1,974\\n\\nacres of potential species habitat.\\n\\n In our review of the 2017 ITS, we concluded that FWS arbitrarily limited the habitat\\n\\nsurrogate to the 896.7 acres near Cochran’s Cave. Sierra Club, 899 F.3d at 278. Because\\n\\nFWS provided no explanation for limiting the habitat surrogate to the 896.7-acre zone\\n\\nwhen the agency found that a total of 1,974 acres of potential MCI habitat would be\\n\\nimpacted by the pipeline, FWS failed to establish a proper “causal link between the isopod\\n\\nand the geographic bounds of the take limit.” Sierra Club, 899 F.3d at 278. 12\\n\\n In the 2018 ITS, FWS commits the same error that we identified in our previous\\n\\nopinion. The ITS provides no explanation for its failure to account for potential take of\\n\\nMCI in the remainder of the 1,974 acres of MCI habitat impacted by pipeline construction.\\n\\nAnd while the 2018 BiOp explains that FWS does “not anticipate impacts to MCI in the\\n\\nremainder of the 1,974 surface acres” for two reasons, neither of those reasons is availing.\\n\\n First, FWS asserts that there will be no impacts to MCI outside of the 896.7-acre\\n\\narea due to the avoidance and minimization measures (“AMMs”) put in place by FERC.\\n\\nJ.A. 1188. Yet, the 2018 BiOp acknowledges that the AMMs “will not be completely\\n\\n\\n 12\\n We also found that the take limit failed to provide a clear standard for enforcement\\nbecause it limited take to a “small percent of” MCI within the 11.2-acrea area. Sierra Club,\\n899 F.3d at 278. The 2018 ITS does not make the same mistake of using vague language\\nto define the take limit, and Petitioners do not argue that the current take limit fails to\\nestablish a “clear standard.” 50 C.F.R. § 402.14(i)(1)(i). Rather, Petitioners challenge the\\n2018 BiOp and ITS’s conclusion that no MCI take is anticipated in the remainder of the\\n1,974 acres of potential MCI habitat.\\n\\n 47\\n\\feffective in preventing all sediment from entering the phreatic water” in which the MCI\\n\\nlive and that AMMs “cannot completely prevent shifts in surface and sub-surface\\n\\nformations and hydrology from trenching, digging, or blasting.” J.A. 1217. “Sudden shifts\\n\\nin subterranean structures are likely to crush or trap MCIs, alter their travel corridors, or\\n\\nisolate portions of the population.” J.A. 1217–18. Therefore, even with the AMMs in\\n\\nplace, FWS “anticipate[s] a reduction in the fitness of this undocumented population.” J.A.\\n\\n1218.\\n\\n Second, FWS asserts in the BiOp that there will be no impacts to MCI outside of\\n\\nthe 896.7 acres because of the depth of the water that the MCI inhabit. J.A. 1188.\\n\\nSpecifically, the depth to groundwater in Augusta County, where MCI live, is\\n\\napproximately 20 feet below the surface, and pipeline construction will disturb only 6 to 8\\n\\nfeet below the surface. Id. Therefore, FWS concludes that pipeline construction is “not\\n\\nexpected to pose a significant risk to groundwater.” Id. However, nothing in the 2018\\n\\nBiOp states that impacts to the MCI will occur only where construction occurs within the\\n\\ngroundwater table. Rather, the BiOp makes clear that blasting and trenching through karst\\n\\nterrain will injure and kill MCI at a distance by causing the crumbling of geologic\\n\\nformations. J.A. 1202, 1217. While FWS took this into account in assessing the MCI\\n\\nlikely to be taken by construction of the right-of-way in the 11.2 acres near Cochran’s\\n\\nCave, the agency fails to explain why construction activities that impact the remaining\\n\\n1,974 acres will not have the same effects. If ground disturbing activities will cause the\\n\\nhorizontal crumbling of the karst terrain hundreds of acres away, it is “implausible” to\\n\\nexpect that the same activities will not impact the terrain a mere 12 vertical feet below. See\\n\\n\\n 48\\n\\fDefs. of Wildlife, 762 F.3d at 396 (explaining that agency action is arbitrary if it is “so\\n\\nimplausible that it could not be ascribed to a difference in view or the product of agency\\n\\nexpertise”).\\n\\n The arbitrary nature of FWS’s choice to ignore the remainder of the potential MCI\\n\\nhabitat in formulating its habitat surrogate is highlighted by other evidence in the record\\n\\nregarding the relevant terrain. There is evidence of sinkholes and sinking streams located\\n\\noutside of the 11.2-acre Cochran Cave area (and outside of the 885.5-acre zone affected by\\n\\nground disturbing activities at the cave) but within the remainder of the 1,974 acres of\\n\\npotential MCI habitat. See J.A. 630 (listing sinkholes A096-8, A105-1, and A132-2 as\\n\\nhigh-risk sinkholes in areas where MCI presence is assumed). As the Final Environmental\\n\\nImpact Statement explains, these sinkholes pose a concern because “water and sediment\\n\\nmovement from construction activities may transfer to subterranean habitats occupied by\\n\\n[MCI], altering habitats used by the species.” J.A. 632. This could lead to the death of\\n\\nMCI or degradation of MCI habitats to the point where they are rendered unusable. Id.\\n\\nAnd “because of the interconnected network of karst features, actions in one area can\\n\\nproduce impacts considerable distances from the actual point of activity.” Id. The 2018\\n\\nBiOp and ITS do not address the sinkhole evidence or plausibly explain why MCI in the\\n\\nremaining 1,974 acres of MCI habitat that contain open sinkholes will not be subject to\\n\\ntake.\\n\\n Based on the above, it appears likely that construction activities will result in the\\n\\ntake of more MCI than set forth in the habitat surrogate of the 2018 ITS. FWS has again\\n\\nfailed to establish a “causal link between the surrogate and take of the listed species.”\\n\\n\\n 49\\n\\fSierra Club, 899 F.3d at 271; 50 C.F.R. § 402.14(i)(1)(i). Therefore, the MCI take limit\\n\\ndoes not comply with the requirements of the ESA and is an unenforceable habitat\\n\\nsurrogate.\\n\\n\\n\\n V.\\n\\n We cannot ignore that it took FWS a mere 19 days to issue the 2018 BiOp and ITS\\n\\nafter FERC resumed formal consultation with the agency following our first decision in\\n\\nthis matter. In fast-tracking its decisions, the agency appears to have lost sight of its\\n\\nmandate under the ESA: “to protect and conserve endangered and threatened species and\\n\\ntheir habitats.” Nat’l Ass’n of Home Builders, 551 U.S. at 651. This mandate has “priority\\n\\nover the ‘primary missions’ of federal agencies.” Tenn. Valley Auth. v. Hill, 437 U.S. 153,\\n\\n185 (1978). We hope that, upon remand, FWS will consider any further action it takes\\n\\nwith this mandate in mind.\\n\\n For the foregoing reasons, FWS’s 2018 BiOp and ITS arbitrarily conclude that ACP\\n\\nconstruction will not jeopardize the RPBB or the clubshell and fail to create enforceable\\n\\ntake limits for the Ibat and MCI. Because FWS’s decisions are arbitrary and capricious,\\n\\nwe vacate the 2018 BiOp and ITS.\\n\\n\\n\\n VACATED AND REMANDED\\n\\n\\n\\n\\n 50\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4420633/\", \"author_raw\": \"Vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in\"}]}"},"judge1":{"kind":"string","value":"GREGORY"},"judge2":{"kind":"string","value":"WYNN"},"judge3":{"kind":"string","value":"THACKER"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4643380/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: DEFENDERS OF WILDLIFE; Sierra Club; Virginia Wilderness Committee, Petitioners, v. UNITED STATES DEPARTMENT OF THE INTERIOR; United States Fish and Wildlife Service, an Agency of the U.S. Department of the Interior; Jim Kurth, in His Official Capacity as Acting Director; Paul Phifer, in His Official Capacity as Assistant Regional Director, Ecological Services, Responsible Official, Respondents, Atlantic Coast Pipeline LLC, Intervenor.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-07-26\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-2090\n\n\nDEFENDERS OF WILDLIFE; SIERRA CLUB; VIRGINIA WILDERNESS\nCOMMITTEE,\n\n Petitioners,\n\n v.\n\nUNITED STATES DEPARTMENT OF THE INTERIOR; UNITED STATES FISH\nAND WILDLIFE SERVICE, an agency of the U.S. Department of the Interior; JIM\nKURTH, in his official capacity as Acting Director; PAUL PHIFER, in his official\ncapacity as Assistant Regional Director, Ecological Services, Responsible Official,\n\n Respondents,\n\nATLANTIC COAST PIPELINE LLC,\n\n Intervenor.\n\n\nOn Petition for Review of the United States Fish and Wildlife Service’s Biological Opinion\nand Incidental Take Statement. (CP15–554–000; CP15–554–001; CP15–555–000)\n\n\nArgued: May 9, 2019 Decided: July 26, 2019\n\n\nBefore GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.\n\n\nVacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in\nwhich Judge Wynn and Judge Thacker joined.\n\n\nARGUED: Austin Donald Gerken, Jr., SOUTHERN ENVIRONMENTAL LAW\nCENTER, Asheville, North Carolina, for Petitioners. Kevin William McArdle,\n\fUNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents.\nBrooks Meredith Smith, TROUTMAN SANDERS, LLP, Richmond, Virginia, for\nIntervenor. ON BRIEF: Amelia Burnette, J. Patrick Hunter, Asheville, North\nCarolina, Gregory Buppert, SOUTHERN ENVIRONMENTAL LAW CENTER,\nCharlottesville, Virginia, for Petitioners. Eric Grant, Deputy Assistant Attorney General,\nAndrew C. Mergen, Avi Kupfer, Environment and Natural Resources Division,\nUNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Tony Sullins,\nS. Amanda Bossie, Office of the Solicitor, UNITED STATES DEPARTMENT OF THE\nINTERIOR, Washington, D.C., for Federal Respondents. Andrea W. Wortzel,\nTROUTMAN SANDERS LLP, Richmond, Virginia, for Intervenor.\n\n\n\n\n 2\n\fGREGORY, Chief Judge:\n\n In 2017, the U.S. Fish and Wildlife Service (“FWS”) issued a Biological Opinion\n\nin connection with the proposed Atlantic Coast Pipeline, which will transport natural gas\n\nfrom West Virginia to Virginia and North Carolina. That Opinion, required by the\n\nEndangered Species Act, concluded that the proposed pipeline will not jeopardize the\n\ncontinued existence of several endangered and threatened species that are likely to be\n\nimpacted by pipeline construction. As relevant here, the Biological Opinion concluded\n\nthat the pipeline will not jeopardize four species: the rusty patched bumble bee, clubshell,\n\nIndiana bat, or Madison Cave isopod. However, because FWS anticipated the incidental\n\ntaking, i.e., harassing or killing, of those species, the agency issued an Incidental Take\n\nStatement with its Biological Opinion, setting limits on the number of each species that the\n\npipeline could legally take.\n\n Petitioners challenged the take limits imposed by the 2017 Incidental Take\n\nStatement. After reviewing that agency action, we determined that FWS’s take limits were\n\narbitrary and capricious. Accordingly, we vacated the Incidental Take Statement.\n\n Shortly after our decision, FWS issued a new Biological Opinion and Incidental\n\nTake Statement. Petitioners now challenge the findings of both of those agency actions.\n\nSpecifically, Petitioners assert that FWS improperly determined that pipeline construction\n\nwill not jeopardize the rusty patched bumble bee or the clubshell, and they challenge the\n\nvalidity of the take limits imposed for the Indiana bat and the Madison Cave isopod.\n\nBecause we find that FWS arbitrarily reached its no-jeopardy conclusions and failed to\n\n\n\n\n 3\n\fcorrect the deficiencies in the take limits that we identified in the previous appeal, we grant\n\nthe petition and vacate the 2018 Biological Opinion and Incidental Take Statement.\n\n\n\n I.\n\n Before we turn to the relevant facts of this case, we review the statutory context in\n\nwhich this appeal arises. The Endangered Species Act (“ESA”) was enacted “to protect\n\nand conserve endangered and threatened species and their habitats.” Sierra Club v. U.S.\n\nDep’t of the Interior, 899 F.3d 260, 268 (4th Cir. 2018) (quoting Nat’l Ass’n of Home\n\nBuilders v. Defs. of Wildlife, 551 U.S. 644, 651 (2007)). In line with that purpose, the ESA\n\nprohibits federal agencies from engaging in any action “likely to jeopardize the continued\n\nexistence of any endangered species or threatened species.” 16 U.S.C. § 1536(a)(2). The\n\nAct also prohibits the “take” of endangered and threatened species, i.e., the harassing,\n\nharming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, collecting of\n\na listed species, or any “attempt to engage in such conduct.” Id. §§ 1532(19),\n\n1538(a)(1)(B). A person harms or harasses a listed species when she disrupts that species’s\n\n“normal behavioral patterns” or causes indirect injury by “habitat modification.” Sierra\n\nClub, 899 F.3d at 269; 50 C.F.R. § 17.3.\n\n “Any person who knowingly takes an endangered or threatened species is subject\n\nto substantial civil and criminal penalties, including imprisonment.” Sierra Club, 899 F.3d\n\nat 269 (internal quotation marks omitted) (quoting Bennett v. Spear, 520 U.S. 154, 170\n\n(1997)); see 16 U.S.C. § 1540(a), (b). But a person may escape liability for taking a listed\n\n\n\n\n 4\n\fspecies when “such taking is incidental to, and not the purpose of, the carrying out of an\n\notherwise lawful activity.” 16 U.S.C. § 1539(a)(1)(B).\n\n To comply with the ESA, federal agencies faced with permit applications for\n\nconstruction projects must ensure, in consultation with the U.S. Fish and Wildlife Service\n\n(“FWS”), that “any action authorized, funded, or carried out by such agency . . . is not\n\nlikely to jeopardize the continued existence of” a listed species or “result in the destruction\n\nor adverse modification” of designated critical habitat. 16 U.S.C. § 1536(a)(2). Formal\n\nconsultation with FWS is required when an agency proposing to act (“action agency”)\n\ndetermines that its action “may affect” a listed species or critical habitat. 50 C.F.R.\n\n§ 402.14(a).\n\n When consultation has concluded, FWS issues a Biological Opinion (“BiOp”)\n\naddressing whether the proposed action “is likely to jeopardize the continued existence of\n\na listed species or result in the destruction or adverse modification of critical habitat.” Id.\n\n§ 402.14(g)(4), (h)(3). A proposed action jeopardizes the continued existence of a species\n\nwhen it “reasonably would be expected, directly or indirectly, to reduce appreciably the\n\nlikelihood of both the survival and recovery of a listed species in the wild by reducing the\n\nreproduction, numbers, or distribution of that species.” Id. § 402.02. And a proposed\n\naction destroys or adversely modifies a species’s critical habitat when it directly or\n\nindirectly alters it in a way that “appreciably diminishes the value of critical habitat for the\n\nconservation of a listed species.” Id.\n\n If FWS concludes that a proposed project is not likely to jeopardize the continued\n\nexistence of a listed species but will result in the take of some members of that species, the\n\n\n 5\n\fconsulting party may lawfully take those members only if it first obtains a valid Incidental\n\nTake Statement (“ITS”) from FWS setting enforceable limits on the quantity that may be\n\ntaken. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(g)(7), (i). Both the BiOp and ITS are\n\nformulated during the formal consultation process with FWS, and the ITS is issued with,\n\nand supplements, the BiOp. See 50 C.F.R. § 402.14(g), (i)(1); Or. Nat. Res. Council v.\n\nAllen, 476 F.3d 1031, 1036 (9th Cir. 2007).\n\n With this framework in mind, we turn to the facts underlying this appeal.\n\n\n\n II.\n\n The Atlantic Coast Pipeline (“ACP”) is a proposed 600-mile pipeline designed to\n\ntransport natural gas from West Virginia to Virginia and North Carolina. J.A. 816.\n\nConstruction of the pipeline will require a 125-foot right-of-way that will disturb 11,776\n\nacres of land. Construction will also require additional temporary workspace and the use\n\nof access roads. To secure these spaces, and during construction itself, certain forested\n\nareas will need to be cleared of trees, ground will be displaced, and sediment will be\n\ndeposited into river waters.\n\n In 2015, Intervenor Atlantic Coast Pipeline, LLC (“Atlantic”) applied to the Federal\n\nEnergy Regulatory Commission (“FERC”) for a certificate of public convenience and\n\nnecessity for the ACP. That certificate, required under the Natural Gas Act, serves as the\n\ngrant of final approval to construct the pipeline. 15 U.S.C. § 717f. The Natural Gas Act\n\nalso requires Atlantic to obtain “any permits, special use authorizations, certifications,\n\nopinions, or other approvals as may be required under Federal law.” N.Y. Dep’t of Envtl.\n\n\n 6\n\fConservation v. FERC, 884 F.3d 450, 452–53 (2d Cir. 2018) (quoting 15 U.S.C.\n\n§ 717n(a)(1), (2)). As the lead agency, FERC is responsible for coordinating all applicable\n\nfederal authorizations. 15 U.S.C. § 717n(b)(1).\n\n After Atlantic submitted its application to FERC, it was determined that pipeline\n\nconstruction may affect several threatened or endangered species. Therefore, FERC\n\ninitiated formal consultation with FWS to determine whether the pipeline would likely\n\njeopardize the continued existence of those species. See 50 C.F.R. § 402.14(a).\n\n On October 13, 2017, FERC issued a certificate of public convenience and necessity\n\nfor the ACP. FERC conditioned its approval of the pipeline on Atlantic’s receipt of all\n\nstate and other federal authorizations required for the project, including the pending\n\nauthorization from FWS.\n\n On October 16, 2017, FWS issued a BiOp, concluding that the ACP is not likely to\n\njeopardize the existence of any of the affected listed species. FWS also issued an ITS\n\nbecause it determined that pipeline construction was likely to result in the take of members\n\nof six of those species. The ITS did not set numeric take amounts for five of the species to\n\nbe taken. Instead, it relied on habitat surrogates, setting take limits such as “small percent\n\nof,” “majority,” and “all.” J.A. 871–74.\n\n In January 2018, Petitioners sought review of the ITS. Sierra Club v. U.S. Dep’t of\n\nthe Interior, 899 F.3d 260 (4th Cir. 2018). They challenged only the habitat surrogates\n\nused by FWS. Id. at 270. Petitioners did not challenge the BiOp’s determination that ACP\n\nconstruction will not jeopardize the listed species. Id. at 266, 270.\n\n\n\n\n 7\n\f In May 2018, we vacated the ITS. Sierra Club v. U.S. Dep’t of the Interior, 722 F.\n\nApp’x 321, 322 (4th Cir. 2018). As we later explained in our August 6, 2018, opinion,\n\nFWS had failed to create proper habitat surrogates, failed to explain why numeric take\n\nlimits were not practical, and failed to create enforceable take limits for the clubshell (a\n\nmussel), rusty patched bumble bee, Madison Cave isopod (a crustacean), Indiana bat, and\n\nnorthern long-eared bat. Sierra Club, 899 F.3d at 275–81.\n\n On August 23, 2018, FERC reinitiated formal consultation with FWS to correct the\n\nITS and because of “new information . . . for some of the species.” J.A. 1101. Less than\n\nthree weeks later, on September 11, 2018, FWS issued a new BiOp and ITS. As relevant\n\nhere, the 2018 BiOp concluded that the ACP will not jeopardize the survival and recovery\n\nof the rusty patched bumble bee (“RPBB”), clubshell, Indiana bat (“Ibat”), or the Madison\n\nCave isopod (“MCI”). The ITS set take limits for each of these species.\n\n Petitioners now challenge the BiOp’s conclusion that the ACP will not jeopardize\n\nthe RPBB or the clubshell. Petitioners also challenge the take limits imposed for the Ibat\n\nand MCI. We stayed the 2018 BiOp and ITS pending our review of this petition.\n\n We have jurisdiction under the Natural Gas Act. 15 U.S.C. § 717r(d)(1).\n\n\n\n III.\n\n We review the 2018 BiOp and ITS under the default standard of the Administrative\n\nProcedure Act (“APA”) and ask whether the challenged actions are “arbitrary, capricious,\n\nan abuse of discretion, or otherwise not in accordance with law.” Alaska Dep’t of Envtl.\n\nConservation v. EPA, 540 U.S. 461, 496‒97 (2004) (quoting 5 U.S.C. § 706(2)(A)); see\n\n\n 8\n\falso Friends of Back Bay v. U.S. Army Corps of Eng’rs, 681 F.3d 581, 586–87 (4th Cir.\n\n2012). Agency action is arbitrary and capricious “if the agency relied on factors which\n\nCongress has not intended it to consider, entirely failed to consider an important aspect of\n\nthe problem, offered an explanation for its decision that runs counter to the evidence before\n\nthe agency, or is so implausible that it could not be ascribed to a difference in view or the\n\nproduct of agency expertise.” Defs. of Wildlife v. N.C. Dep’t of Transp., 762 F.3d 374, 396\n\n(4th Cir. 2014) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins., 463 U.S.\n\n29, 43 (1983)). In short, “we must ensure that the agency has examined the relevant data\n\nand articulated a satisfactory explanation for its action.” Id. (internal quotation marks and\n\nbrackets omitted) (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009)).\n\n“Review under this standard is highly deferential, with a presumption in favor of finding\n\nthe agency action valid.” Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177,\n\n192 (4th Cir. 2009). But we will vacate agency action if it is not “based on a consideration\n\nof the relevant factors” or where “there has been a clear error of judgment.” Marsh v. Or.\n\nNat. Res. Council, 490 U.S. 360, 378 (1989) (citation omitted).\n\n\n\n IV.\n\n In preparing its BiOp, FWS was required to use “the best scientific and commercial\n\ndata available.” 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(g)(8). FWS’s “failure to do\n\nso violates the APA.” San Luis & Delta-Mendoza Water Auth. v. Locke, 776 F.3d 971, 995\n\n(9th Cir. 2014). The purpose of the best-available-data standard is to ensure that FWS does\n\nnot act based on “speculation and surmise.” Id. (citing Bennett v. Spear, 520 U.S. 154, 176\n\n\n 9\n\f(1997)). Under this standard, FWS may decide which data and studies are the best\n\navailable, and its decision is reviewed under a deferential standard. Miccosukee Tribe of\n\nIndians of Fla. v. United States, 566 F.3d 1257, 1265 (11th Cir. 2009). The agency is not\n\nrequired to conduct new studies when evidence is available upon which a determination\n\ncan properly be made. Sw. Ctr. for Biological Diversity v. Babbitt, 215 F.3d 58, 60 (D.C.\n\nCir. 2000).\n\n This does not mean, however, that FWS is barred from requesting new studies when\n\navailable data is inadequate to prepare a BiOp and render a jeopardy determination. On\n\nthe contrary, FWS regulations for the ESA provide that “[t]he federal agency requesting\n\nformal consultation”—in this case FERC—“shall provide [FWS] with the best scientific\n\nand commercial data available or which can be obtained during the consultation for an\n\nadequate review of the effects that an action may have upon listed species or critical\n\nhabitat.” 50 C.F.R. § 402.14(d) (emphasis added). And the regulations further provide\n\nthat “[w]hen [FWS] determines that additional data would provide a better information\n\nbase from which to formulate a biological opinion, the Director may request an extension\n\nof formal consultation and request that the Federal Agency”—again, FERC in this case—\n\n“obtain additional data to determine how or to what extent the action may affect listed\n\nspecies or critical habitat.” Id. § 402.14(f). Accordingly, federal law expressly authorizes\n\nFWS to request new survey data from a consulting agency if the existing data is not\n\n“adequate” to determine the effect of the project.\n\n The best-available-data standard also means that FWS is not free to disregard other\n\n“available biological information” that “is in some way better than the evidence [it] relies\n\n\n 10\n\fon.” Kern Cty. Farm Bureau v. Allen, 450 F.3d 1072, 1080–81 (9th Cir. 2006) (alteration\n\nin original) (citations omitted). Rather, FWS must seek out and consider all existing\n\nscientific data relevant to the decision it is tasked with making. Heartwood, Inc. v. U.S.\n\nForest Serv., 380 F.3d 428, 436 (8th Cir. 2004).\n\n After reviewing the agency’s 2018 BiOp and ITS, we agree with Petitioners that\n\nFWS has again acted arbitrarily. We address in detail the agency’s decisions with respect\n\nto each listed species in turn.\n\n A. Rusty Patched Bumble Bee\n\n In their previous appeal, Petitioners challenged the take limits imposed by FWS on\n\nthe RPBB. We found that those limits violated the Endangered Species Act. Sierra Club,\n\n899 F.3d at 277. Now, Petitioners challenge the agency’s finding in the BiOp that the ACP\n\nwill not jeopardize the RPBB in the first instance.\n\n Some background on the RPBB and the model used by FWS in assessing impacts\n\non the species is helpful here. The RPBB is a colonial bee species with an annual cycle.\n\nThat cycle begins in early spring, when nests or colonies are started by solitary queen bees.\n\nThose nests, although occasionally observed above ground, typically are located\n\nunderground, in abandoned rodent nests or other similar cavities. Throughout the summer,\n\nthe foundress queen bees produce worker bees. Worker bees are responsible for foraging\n\nfor food for the colony. The health of the colony depends on the number of workers\n\nforaging and the abundance of foraging habitat. RPBB colony sizes are larger than those\n\nof other bumble bees, and a healthy colony is composed of up to 1,000 worker bees in a\n\nseason. Endangered and Threatened Wildlife and Plants; Endangered Species Status for\n\n\n 11\n\fRusty Patched Bumble Bee, 82 Fed. Reg. 3186, 3187 (Jan. 11, 2017). In late summer and\n\nearly fall, the queen bee produces male drones and new queens. At the end of the cycle,\n\nmale drones and the new queens mate, while the foundress queen and workers die. The\n\nnew queens then overwinter, or hibernate. Overwintering occurs underground, primarily\n\nin soft-soil and leaf-litter chambers that the queens form in forested areas. After\n\noverwintering, these queens emerge in the spring, and the cycle begins again.\n\n Historically, the RPBB was “abundant and widespread, with hundreds of\n\npopulations across an expansive range.” 82 Fed. Reg. at 3188. Since the late 1990s,\n\nhowever, RPBB populations have plummeted by nearly 90 percent. When the species was\n\nlisted as endangered in January 2017, 95% of the 103 known populations had been\n\ndocumented by 5 or fewer bees. Id. at 3205. As FWS has recognized, the RPBB “is so\n\nimperiled that every remaining population is important for the continued existence of the\n\nspecies.” J.A. 941. Without affirmative protection, all but one RPBB ecoregion are\n\npredicted to be extinct within 5 years, and that one remaining ecoregion would cease to\n\nexist within 30 years.\n\n One contributing factor to the RPBB’s swift decline is that RPBBs suffer, as do\n\nother bee colonies, from a phenomenon known as the diploid male vortex. This\n\nphenomenon occurs when related bees mate, leading to a higher chance of haplodiploidy—\n\na condition where 50% of the haploid worker bees are replaced by diploid males that do\n\nnot contribute food resources to the colony. This, in turn, leads to a higher likelihood of\n\ncolony collapse. Many RPBB populations are victimized by other stressors as well,\n\nincluding pathogens, pesticides, habitat loss and degradation, and climate change.\n\n\n 12\n\f Concurrent with its preparation of the BiOp for the ACP project, FWS developed\n\nguidelines for federal projects that may affect the RPBB’s continued existence. J.A. 514;\n\nJ.A. 1110. Under those guidelines, FWS uses a model to identify areas that are likely to\n\nbe populated by RPBBs, areas referred to as “high potential zones.” J.A. 517–18. The\n\nboundaries of those high potential zones are delineated using extant populations data\n\n(species observation data that is less than 10 years old), estimated foraging and dispersal\n\ndistances of the bees, and surrounding vegetation types. While the species may be present\n\nelsewhere, the modeled high potential zones are thought to “provide a reasonable basis for\n\ndescribing where the species is likely to be present and where federal agencies should\n\nconsult with [ ] FWS to evaluate the potential effects of their actions.” J.A. 518. If a\n\nproject area overlaps with a habitat suitable to RPBBs in a high potential zone, the\n\nconsulting agency has two options to determine actual bee presence: it may survey the\n\narea of overlap to verify the presence of RPBBs or it may choose to forgo a survey, in\n\nwhich case RPBB presence is assumed and consultation with FWS is required. J.A. 521.\n\n In its 2017 BiOp, FWS concluded that a 653-hectare high potential zone for the\n\nRPBB existed in Bath County, Virginia. This zone was calculated based on the sighting\n\nof one worker bee foraging in the George Washington National Forest along a pipeline\n\naccess road. While FWS could not determine where the nest for the worker bee’s colony\n\nwas located and did not survey for that colony, it calculated the high potential zone based\n\non average foraging distances of RPBB workers and the location of habitat suitable for\n\nnesting and overwintering queens. The 2017 BiOp acknowledged that “there is uncertainty\n\nregarding habitat use and distribution of the species during certain life stages and time\n\n\n 13\n\fperiods.” J.A. 840. The BiOp also explained that the “[s]tatus of colony and population\n\nin the [high potential zone] is unknown at this time because while the presence of a worker\n\nbee signifies the existence of a colony, [the agency had] no accurate way to assess the status\n\nof the local population.” Id. Accordingly, in determining RPBB “distribution and habitat\n\nuse,” FWS relied on various “assumptions, based on the best available information.” Id.\n\nOne of those assumptions was that “RPBB activity (foraging, nesting, overwintering\n\nqueens) [was] concentrated in the [high potential zone].” Id. Other assumptions related to\n\nthe density of the RPBB population in Bath County. For example, FWS assumed that the\n\none observed worker bee was part of a colony composed of 100 to 1,000 worker bees that\n\nproduced 6 to 8 new foundress queens each cycle. FWS also assumed that the density of\n\nRPBB colonies in the high potential zone was 14 nests per 100 hectares, an estimate that\n\nwas calculated by using the nesting density of the “common and abundant” buff-tailed\n\nbumble bee. Id.\n\n In July and August 2018, FWS received information from the Virginia Department\n\nof Conservation and Recreation (“DCR”) that 22 RPBBs—9 in Bath County and 13 in\n\nHighland County—had been observed during 2018 bee surveys that the state agency had\n\nconducted. The 2018 sightings were closer to the pipeline right-of-way than the lone 2017\n\nsighting had been and were near 3 project access roads rather than just one.\n\n Based on this new information, FWS expanded the Bath County high potential zone\n\nfrom 653 hectares to 969.6 hectares. The newly drawn high potential zone was based on\n\nthe 2017 and 2018 bee sightings and the RPBB’s “potential ability to disperse across the\n\nlandscape.” J.A. 1183. Just as FWS had assumed in the 2017 BiOp that the RPBB was\n\n\n 14\n\flikely to occur in the 653-hectare high potential zone, the agency now assumed that RPBB\n\nactivity is concentrated within the expanded 969.6-hectare high potential zone. FWS\n\nassumed that the high potential zone contains 156.3 hectares of nesting and foraging habitat\n\nand 900.7 hectares of overwintering habitat. Based on these assumptions, FWS determined\n\nthat the ACP action area overlaps with the newly drawn high potential zone and\n\nencompasses 6.29 hectares of nesting and foraging habitat and 10.27 hectares of\n\noverwintering habitat. The 2018 BiOp also relied on the same nest density as the 2017\n\nBiOp—14 nests per 100 hectares.\n\n Evaluating the effects of pipeline construction in the newly drawn high potential\n\nzone, the 2018 BiOp determined that construction will likely cause the crushing of 8\n\noverwintering queens, the crushing of worker bees, and will impact one RPBB colony\n\ncapable of producing 30 overwintering queens. These estimates were based on FWS’s\n\nassumption that 22 RPBB nests are located in the high potential zone 1 and that each nest\n\nproduces 30 overwintering queens, resulting in a total of 660 overwintering queens each\n\ncycle in the high potential zone—a number of queens that far exceeds the 6-8 queen-per-\n\ncolony estimate of the 2017 BiOp and that exceeds the total number of RPBBs that have\n\nbeen documented in current populations worldwide. 2 Explaining that a “healthy” bee\n\n\n\n\n 1\n This assumption is based on a nest density of 0.14 nests per hectare within the total\nassumed nesting habitat of 156.3 hectares.\n 2\n As noted earlier, 95% of the 103 remaining populations of RPBB (or 98\npopulations) have been observed with 5 or fewer bees. One of the other 5 populations was\ndocumented by 30 bees—the maximum number observed in any of the remaining\n(Continued)\n\n\n 15\n\fpopulation typically contains tens to hundreds of colonies and that the loss of a single\n\ncolony or overwintering queen “could reduce the health of a metapopulation 3 due to lost\n\nopportunities to interbreed,” J.A. 1216, FWS nonetheless concluded that the destruction of\n\n1 of the 22 colonies in the high potential zone, with the potential to produce 30 foundress\n\nqueens, and the loss of 8 overwintering queens were “not likely to negatively impact the\n\nfitness or survival of the population,” J.A. 1217. Accordingly, FWS found that the ACP\n\nwould not jeopardize the RPBB.\n\n In challenging this no-jeopardy finding, Petitioners advance several arguments that\n\nwe find persuasive. We address each in turn.\n\n 1. Nest Density\n\n We first find that the 2018 BiOp’s nest density calculation—a calculation that FWS\n\nused to determine the total number of RPBBs likely to be impacted by pipeline\n\nconstruction—is arbitrary because it is not based on the best available information and in\n\nfact ignores evidence that the agency itself has developed.\n\n Underlying the arbitrary nature of the 2018 BiOp’s nest density calculations is the\n\nfact that “[t]here are no studies that estimate RPBB nest density.” J.A. 1185. Although\n\nFWS has developed guidance for surveying the RPBB, it has conducted no surveys to\n\nestimate RPBB nest density. In fact, the agency made a point of avoiding surveys in order\n\n\n\n\npopulations. Thus, assuming that the other 4 populations were documented with at most\n29 bees each, the total number of observed RPBBs worldwide would be at most 636.\n 3\n A “metapopulation” is “an assemblage of interacting subpopulations.” J.A. 407.\nA subpopulation is composed of many bee colonies, each of which represents one\nreproductive unit. Id.\n\n 16\n\fto “fast-track” pipeline authorization. See J.A. 567 (“Our internal direction is that we can’t\n\nrequire surveys and will not make further requests for surveys that interfere with\n\napplicant’s project schedule since these are priority fast-track projects, and we will not state\n\nthat we have insufficient information to initiate consultation and will not delay initiation\n\nof consultation based on lack of baseline/species survey data.”). And while the Virginia\n\nDCR observed RPBBs in its 2018 bee survey, that survey was unrelated to the ACP project\n\nand was not designed specifically to document RPBB populations or to calculate nest\n\ndensity of the species.\n\n Without survey data, FWS relied on several assumptions and on the known nest\n\ndensities of other bumble bees to estimate the number of RPBBs likely to be present in the\n\naction area and thus impacted by the ACP. The agency reviewed 11 studies of nest density\n\nfor 7 other bumble bee species and ultimately based its RPBB nest density calculations on\n\nthe nest densities of 2 other species: the buff-tailed bumble bee and the great yellow\n\nbumble bee. Because FWS did not “develop[ ] additional data,” Sierra Club, 899 F.3d at\n\n273, we must determine whether the available evidence of other species’ nest densities is\n\na sufficient basis for FWS’s determinations here such that FWS was not required to ask\n\nFERC to conduct additional surveys. See Sw. Ctr. for Biological Diversity, 215 F.3d at\n\n60. 4\n\n\n 4\n As we explained in our prior decision in this case, the ESA “does not foreclose\nFWS or an applicant from developing additional data.” Sierra Club, 899 F.3d at 273; see\nOr. Nat. Res. Council, 476 F.3d at 1038 (vacating ITS where BiOp noted that species\nsurvey data was out-of-date and that surveys had been discontinued and where agency\nnever stated that it was not possible to update survey data to estimate number of takings).\n(Continued)\n\n\n 17\n\f We cannot conclude from the 2018 BiOp that FWS’s reliance on either of the two\n\nother species’ data is anything more than arbitrary and capricious. The nest density for the\n\nbuff-tailed bumble bee—which, unlike the RPBB, is a “common and abundant” species—\n\nvaries from 0.04 nests/hectare (“ha”) to 0.88 nests/ha, with a mean density of 0.34 nests/ha.\n\nJ.A. 1185. FWS determined that 0.14 nests/ha would be a reasonable estimate for the\n\nRPBB because “densities of 0.04 to 0.15 nests/ha for the buff-tailed bumblebee represented\n\n40 percent of the estimates in [buff-tailed bee] studies and the buff-tailed bumblebee is\n\ncommon and abundant compared to the relatively rare RPBB.” Id. While FWS\n\nacknowledged that applying the mean density of the buff-tailed bumble bee “would likely\n\nbe an overestimate of the density of RPBB nests,” it did not explain why it chose the higher\n\nend of the 0.04 to 0.15 nests/ha range as the appropriate estimate. Id. Rather, the agency\n\nappears to have randomly picked that number out of a hat.\n\n FWS also determined that a density of 0.14 nests/ha was a reasonable estimate\n\nbecause the nest density for the great yellow bumble bee—which has undergone a\n\n“precipitous decline” and nests in habitats similar to those of the RPBB—is 0.19 nests/ha.\n\nJ.A. 1185–86. The study of the great yellow bumble bee on which the BiOp relied included\n\na “caveat” that the researchers “concentrated on sites known to hold [great yellow bumble\n\n\nThe 2018 BiOp states that, because suitable foraging habitat changes locations from one\nyear to another and bee numbers “fluctuate throughout the season,” it is likely not possible\nto conduct surveys to determine RPBB nest density. J.A. 1185. However, in the same\nbreath, FWS likens the nest density of the RPBB to the known nest densities of 2 other\nbumble bees, after studying nest densities of 7 other bees. J.A. 1185–86. It is unclear why\nthe nest densities of those bees—whose numbers likely also fluctuate throughout the season\nand whose foraging habitats also change—can be studied, but those of the RPBB cannot.\nAnd among the objectives of FWS’s survey protocols for the RPBB is the monitoring of\nRPBB populations to determine “relative abundance and species richness.” J.A. 1185.\n\n 18\n\fbees] in some numbers” and warned that the study’s “conclusions may not extend to other,\n\nsmaller and more peripheral populations.” J.A. 175. Given that caveat, and the likely\n\n“smaller and more peripheral” RPBB population at issue, FWS does not explain why that\n\nstudy is nonetheless a reliable comparator, other than the fact that the great yellow bumble\n\nbee is also in decline. Moreover, FWS fails to explain why it chose to use the specific\n\nfigure of 0.14 nests/ha as opposed to a density closer to that of the great yellow bumble\n\nbee. Again, the nest density chosen by the agency appears to have been selected at random.\n\n The arbitrariness of the nest density figure is further highlighted by other evidence\n\navailable to FWS, evidence which the 2018 BiOp fails to consider in estimating RPBB\n\npresence in the pipeline action area. In its 2017 regulations adding the RPBB to the list of\n\nendangered species, FWS explained:\n\n Since the late 1990s, rusty patched bumble bee abundance and\n distribution has declined significantly. Historically, the rusty\n patched bumble bee has been documented from 926\n populations; since 1999, the species has been observed at 103\n populations, which represents an 88 percent decline from the\n number of populations documented prior to 2000. We\n assumed any population with at least one record (one\n individual rusty patched bumble bee seen) since 1999 is\n current, and thus, the overall health and status of these 103\n current populations is uncertain. Indeed, many populations\n have not been reconfirmed since the early 2000s and may no\n longer persist. For example, no rusty patched bumble bees\n were observed at 41 (40 percent) of the current sites since 2010\n and at 75 (73 percent) of the 103 sites since 2015. Furthermore,\n many of the current populations are documented by only a few\n individuals; 95 percent of the populations are documented by\n 5 or fewer individuals; the maximum number found at any site\n was 30. The number of individuals constituting a healthy\n colony is typically several hundred, and a healthy population\n typically contains tens to hundreds of colonies.\n\n\n\n 19\n\f82 Fed. Reg. at 3188 (emphases added). Although nearly all of the currently known RPBB\n\npopulations have been documented by at most 5 bees, FWS determined that the RPBB\n\npopulation in the high potential zone here includes 22 nests capable of producing 30 queen\n\nbees each, for a total of 660 queens produced each cycle. J.A. 1215. The number of queens\n\nper nest that FWS estimates is equal to the maximum number of total bees observed at any\n\none colony and does not include an estimate of the number of worker bees believed to be\n\npresent, which would no doubt be much higher than 30 per nest. The BiOp is silent on\n\nwhy these projections are reasonable in light of the known and documented record of\n\nseverely declining RPBB populations.\n\n The reasonableness of the 30-queens-per-nest figure also fails to find support in\n\nstudies of other species’ queen production rates cited by FWS. The 2018 BiOp cites to\n\nFWS’s August 2018 draft Voluntary Implementation Guidance for the RPBB as support\n\nfor its 30-queens-per-nest estimate. J.A. 1184–85, 1253. That draft guidance explains that\n\ntwo studies of two colonies of common and abundant buff-tailed bumble bees reared in\n\nnest boxes (not in the wild) showed a production average of 14 and 31 queens, respectively.\n\nJ.A. 1127. In discussing those studies, the draft guidance notes that FWS “would expect\n\nnests in natural settings to produce fewer queens on average due to the increase in hazards\n\nrelative to nest boxes.” Id. Therefore, bees like the RPBB in the high potential zone would\n\nbe expected to produce fewer queens than RPBBs that were raised in nest boxes, free from\n\nmany of the perils found in nature. And because the RPBB is much less abundant than the\n\nbuff-tailed bumble bee, it would be logical to expect that RPBB queen production rates\n\nwould also be lower than those of the bees’ buff-tailed cousins. Nonetheless, FWS\n\n\n 20\n\fconcluded that RPBBs, which are in significant decline, produce an average of 30 queens\n\nper nest in natural habitats, “similar to the higher of the two buff-tailed bumble bee\n\nstudies.” J.A. 1127 (emphasis added).\n\n The draft guidance also relies on a density range of 20 to 40 queens per nest, an\n\nestimate provided to FWS by Dr. Elaine Evans of the University of Minnesota. Id.\n\nHowever, in an email to FWS explaining the basis for that range, Dr. Evans stated, “All I\n\nhave is a wild guess based on what I’ve seen in other captive and retrieved wild colonies.\n\nRange would be 0 - ~ 100. My guess for an average per colony ignoring the ones that don’t\n\nproduce queens would be 20-40.” J.A. 929 (emphases added).\n\n FWS’s sole explanation in its draft guidance for its use of the 30-queens-per-nest\n\nfigure is that it is the midpoint of the range “guess[ed]” by Dr. Evans and similar to the\n\nhigher of the two buff-tailed bumble bee studies. J.A. 1127; see J.A. 929. FWS fails to\n\nexplain why this evidence is the best available when all other evidence shows that the\n\nRPBB is in substantial decline and should not be compared to a common and abundant bee\n\nspecies—much less to the higher production rate of that species. And an expert’s “wild\n\nguess” inspires no additional confidence in the reasonableness of FWS’s estimate. See Ctr.\n\nfor Biological Diversity v. Bureau of Land Mgmt., 422 F. Supp. 2d 1115, 1127 (N.D. Cal.\n\n2006) (“To the extent that there is any uncertainty as to what constitutes the best available\n\nscientific information, Congress intended ‘to give the benefit of the doubt to the species.’”\n\n(quoting Conner v. Burford, 848 F.2d 1441, 1454 (9th Cir. 1988))).\n\n At bottom, FWS has arbitrarily estimated the number of RPBB nests and bees\n\npresent in the high potential zone. The agency has failed to connect the dots between the\n\n\n 21\n\fstudies of other bee species on which it relies and the likely nest density and queen\n\nproduction rate of the RPBB. The agency has also ignored significant evidence that\n\nundermines the reasonableness of its estimates—evidence that the agency itself has\n\ngathered—and has instead chosen to rely on one bee expert’s “wild guess.” We agree with\n\nPetitioners that these arbitrary calculations demonstrate the overall arbitrariness of FWS’s\n\nno-jeopardy finding with respect to the RPBB. See Dow AgroSciences LLC v. Nat’l Marine\n\nFisheries Serv., 707 F.3d 462, 473 (4th Cir. 2013) (explaining that, where agency’s data is\n\n“either outdated or inaccurate,” agency should, at the very least, explain why it nonetheless\n\nrelied on the data on which it did); Defs. of Wildlife, 762 F.3d at 396 (stating that agency\n\naction is arbitrary and capricious if the agency “offered an explanation for its decision that\n\nruns counter to the evidence before the agency”).\n\n 2. Inconsistencies in FWS’s Evidence\n\n Petitioners also argue that the 2018 BiOp’s conclusion that the ACP will not\n\njeopardize the RPBB is arbitrary because it is at odds with FWS’s own evidence of the\n\nimportance to RPBB survival of the bees likely to be killed by pipeline construction. We\n\nagree.\n\n According to the 2018 BiOp, ACP construction will impact RPBBs in two ways.\n\nFirst, it will indirectly reduce reproductive success because it will remove foraging\n\nresources that support queens and will crush worker bees. Second, it will directly impact\n\ncolony reproduction by crushing 8 overwintering queens and by impacting one colony,\n\nthereby preventing another 30 foundress queens from being produced. See J.A. 1282\n\n(describing impacts of ACP construction as crushing individual RPBBs, queens, or\n\n\n 22\n\fcolonies; displacing worker bees, which could affect their ability to provide sufficient food\n\nresources to colony; and affecting the “quality, quantity, and timing of floral resources,\n\nthereby reducing survivability and reproductive success of queens”).\n\n As we just explained, the 2018 BiOp’s estimate of the number of RPBBs likely to\n\nexist in the high potential zone is arbitrary. Even assuming that estimate to be proper, the\n\nBiOp’s conclusion that ACP’s effects on the Bath County bee population do not jeopardize\n\nthe species is nonetheless arbitrary. Lost opportunities to interbreed enhance the effect of\n\nthe diploid male vortex, thereby leading to further population size decrease or even the loss\n\nof the population. See J.A. 1216 (“[A]s population size decreases, population growth rate\n\nalso tends to decrease and the risk of local extirpation increases.”). As FWS recognizes,\n\n“[l]oss of a colony or overwintering queen could reduce the health of a metapopulation due\n\nto lost opportunities to interbreed.” J.A. 1216. In fact, FWS has recognized that the RPBB\n\nis “so imperiled that every remaining population is important” for the species’ continued\n\nsurvival. J.A. 941; Resp. Br. 12.\n\n Yet, FWS concluded that the loss of not one but potentially 38 foundress queens is\n\n“not likely to negatively impact the fitness or survival of the population”—and\n\nconsequently of the species—because FWS assumes that the remaining 21 colonies\n\nbelieved to be in the high potential zone will not be significantly impacted by the ACP.\n\nJ.A. 1216–17. That is, FWS determined that the killing of more bees than have been found\n\nin most locations in the past two decades would not jeopardize the continued survival or\n\nrecovery of the RPBB.\n\n\n\n\n 23\n\f The 2018 BiOp fails to square this determination with FWS’s other evidence that\n\n95% of the documented RPBB populations have been observed with 5 or fewer bees. 82\n\nFed. Reg. at 3205. While the death of a handful of bees may not be as significant to a\n\nhealthy bee population with tens to hundreds of thousands of bees, record evidence\n\nindicates that the RPBB population at issue is far from healthy. The 2018 BiOp fails to\n\nexplain why it is that the loss of 38 potential queens does not endanger the survival of the\n\nBath County RPBB population when the loss of “a colony or overwintering queen could\n\nreduce the health of a metapopulation.” J.A. 1216. Absent a reasoned discussion of the\n\nagency’s apparently contradictory positions about the species, we can only conclude that\n\nFWS acted arbitrarily in determining that the likely impacts of the ACP on the RPBB will\n\nnot jeopardize the species’ continued existence and recovery. Defs. of Wildlife, 762 F.3d\n\nat 396.\n\n 3. Status of the Species\n\n Petitioners also argue that the 2018 BiOp fails to account for the overall status of\n\nthe RPBB. In light of the precarious status of the species, we again agree with Petitioners.\n\n FWS’s Endangered Species Act Handbook instructs that the agency’s jeopardy\n\nconclusion should be made upon “reviewing the current status of” the species, in addition\n\nto the effects of the proposed action. J.A. 78; see Ctr. for Biological Diversity v. Salazar,\n\n695 F.3d 893, 913 (9th Cir. 2012) (explaining that a BiOp must address whether the\n\nproposed action is likely to jeopardize the continued existence of the listed species “as a\n\nwhole”). Here, the 2018 BiOp addresses the status of the RPBB in a short, four-sentence\n\nparagraph:\n\n\n 24\n\f As described in Service (2016), the RPBB conservation needs include\n assessing resiliency to environmental variation, perturbations\n affecting habitat size and quality, and population size. Currently, the\n rangewide status of the species is declining (82 FR 3186-3209). The\n primary factors influencing the status include risks posed by\n “pathogens, pesticides, habitat loss and degradation, small population\n dynamics, and climate change” (82 FR 3186-3209). For a more\n detailed account of the species description, life history, population\n dynamics, threats, and conservation needs, refer to:\n https://ecos.fws.gov/ecp0/profile/speciesProfile?spcode=I0WI.\n\nJ.A. 1172. In internal email correspondence, FWS recognized that its discussion of the\n\nstatus of the RPBB was “[n]ot in lock step with the handbook” and “a different read than\n\nthe usual multiple pages per species of species information.” J.A. 711; see J.A. 1172. 5\n\nNonetheless, FWS defends its BiOp because the BiOp states that it “considered the current\n\noverall declining status of the RPBB and the inferred condition of the species within the\n\naction area (environmental baseline),” J.A. 1221; incorporates FWS’s prior assessments of\n\nthe status of the RPBB, J.A. 1172; and contains a detailed description of baseline conditions\n\nin the action area, J.A. 1181–86. Resp. Br. 26. FWS also asserts that an agency action\n\n“can only ‘jeopardize’ a species’ existence if that agency action causes some deterioration\n\nin the species’ pre-action condition.” Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv.,\n\n524 F.3d 917, 930 (9th Cir. 2008).\n\n However, FWS ignores the corollary that “an agency may not take action that will\n\ntip a species from a state of precarious survival into a state of likely extinction.” Id. That\n\n\n\n 5\n The author of that internal email expressed shock at the “brevity” of the 2018\nBiOp’s status discussion. J.A. 711 (“Wow, is that a different read.”). And after\nacknowledging that the status section was not in accordance with the agency’s handbook,\nthe author added, “but we can get by that with my excessive wit, charm, and grace.” Id.\nWit, charm, and grace, however, do not make for sound agency action.\n\n 25\n\fis, “even where baseline conditions already jeopardize a species, an agency may not take\n\naction that deepens the jeopardy by causing additional harm.” Id. FWS’s 2018 BiOp does\n\nnot show that the agency considered the fact that, without any human interference, the\n\nRPBB already faces jeopardy. See J.A. 395 (June 2016 report explaining that RPBB “may\n\nlack the resiliency required to sustain populations into the future, even without further\n\nexposure to stressors”). Although the BiOp states that the agency considered the “current\n\noverall declining status of the RPBB,” J.A. 1221, it omits any mention of the specifics of\n\nthat declining status. The BiOp says nothing of the fact that the species has declined by\n\nnearly 90% in the past two decades. Nor does it mention that FWS determined, only a year\n\nearlier, that the species is “so imperiled that every remaining population is important for\n\nits continued existence.” J.A. 941. Nor does it mention that FWS and agency scientists\n\nhave previously determined that the RPBB is “very much declining,” J.A. 764, is\n\n“vulnerable to extinction even without further external stressors (e.g., habitat loss,\n\ninsecticide exposure) acting upon the species,” J.A. 498, and is at “a high risk of\n\nextinction,” J.A. 507, 655.\n\n To the contrary, many of the assumptions that FWS makes about the RPBB suggest\n\nthat the agency considered the Bath County population as a healthy population. See J.A.\n\n1184 (assuming 30 new foundress queens produced per colony per cycle); J.A. 1185\n\n(relying on nest density of “common and abundant” buff-tailed bumble bee to determine\n\nRPBB nest density); J.A. 1215 (estimating that RPBBs in high potential zone will produce\n\ntotal of 660 queens each cycle). The 2018 BiOp’s failure to account for the species’s\n\n\n\n\n 26\n\falready precarious state further renders its no-jeopardy determination arbitrary and subject\n\nto vacatur.\n\n 4. RPBB Recovery\n\n Petitioners’ final argument related to the BiOp’s no-jeopardy finding for the RPBB\n\nis that FWS considered only the pipeline’s effects on RPBB survival and ignored the effects\n\non RPBB recovery.\n\n A jeopardy evaluation must determine whether a proposed action “reasonably\n\nwould be expected, directly or indirectly, to reduce appreciably the likelihood of both the\n\nsurvival and recovery of a listed species.” 50 C.F.R. § 402.02 (emphasis added). FWS has\n\ndefined “recovery” as “improvement in the status of a listed species to the point at which\n\nlisting is no longer appropriate.” J.A. 81. That is, “recovery is the process by which\n\nspecies’ ecosystems are restored and/or threats to the species are removed so self-\n\nsustaining and self-regulating populations of listed species can be supported as persistent\n\nmembers of native biotic communities.” Id.\n\n “[I]t is hard to ‘draw clear-cut distinctions’ between survival and recovery.”\n\nCooling Water Intake Structure Coalition v. EPA, 905 F.3d 49, 76 (2d Cir. 2018) (quoting\n\n51 Fed. Reg. 19,926, 19,934 (June 3, 1986)); Nat’l Wildlife Fed’n, 524 F.3d at 932 n.11.\n\nAnd when evaluating a programmatic-level BiOp, other courts have not required “an\n\nindependent analysis of recovery.” Cooling Water, 905 F.3d at 76. Nonetheless, our sister\n\ncircuits have held that, in the context of “site-specific” BiOps like the BiOp at issue in this\n\ncase, recovery impacts, “like survival impacts, should be assessed.” Id.; see also Nat’l\n\nWildlife Fed’n, 524 F.3d at 932 (determining that agency acted arbitrarily when it failed to\n\n\n 27\n\f“analyze effects on recovery as well as effects on survival” in site-specific BiOp). We\n\nagree with those courts. Under the plain language of its own regulations, FWS is required\n\nto assess “both the survival and recovery of a listed species.” 50 C.F.R. § 402.02 (emphasis\n\nadded). The agency is not permitted to resolve the difficulty of distinguishing between\n\nsurvival and recovery “by ignoring recovery needs and focusing entirely on survival.”\n\nNat’l Wildlife Fed’n, 524 F.3d at 932 n.11.\n\n Here, the 2018 BiOp makes no mention of the ACP’s impacts on RPBB recovery.\n\nThe BiOp explains the reasons for reproduction rate decline in the species and the likely\n\nimpact of pipeline construction on that decline. See J.A. 1215–16. It says nothing,\n\nhowever, about recovery, nor does it explain why the no-jeopardy conclusion is reasonable\n\ngiven the acknowledged mortality, injury, and reduced reproduction that pipeline\n\nconstruction will cause to the RPBB—effects that FWS’s Recovery Outline for the RPBB\n\nseeks to avoid. U.S. Fish and Wildlife Serv., Recovery Outline, at 7 (Sept. 5, 2018)\n\n[hereinafter Recovery Outline]. 6 While a separate and distinct section analyzing the\n\npipeline’s impact on RPBB recovery was not necessary, FWS was required to address the\n\n\n 6\n The Endangered Species Act requires the Secretary of the Interior to “develop and\nimplement plans . . . for the conservation and survival of endangered species and threatened\nspecies . . . , unless he finds that such a plan will not promote the conservation of the\nspecies.” 16 U.S.C. § 1533(f)(1). Because the RPBB was listed as an endangered species\nin January 2017, a recovery plan has not yet been developed for the species. Resp. Br. 28.\nFWS, however, has prepared a Recovery Outline for the RPBB. The Recovery Outline,\navailable on FWS’s website, is cited in the 2018 BiOp as a source of additional information\nabout the status of the RPBB. J.A. 1172. The Recovery Outline includes an Interim\nRecovery Program, which provides that “[i]mpacts to [RPBB] to avoid are those that may\n(1) result in mortality or injury to rusty patched bumble bee; (2) reduce reproduction or\nrecruitment of young into populations; (3) increase stress to remaining individuals in the\nwild; or (4) alter habitat such that survival or reproduction is reduced.” Recovery Outline\nat 7.\n\n 28\n\fimpacts of pipeline construction on the species’ recovery. See Rock Creek Alliance v. U.S.\n\nFish and Wildlife Serv., 663 F.3d 439, 443 (9th Cir. 2011) (upholding BiOp when it failed\n\nto “address the bull trout recovery issue in separate, distinct sections” but nonetheless\n\ndiscussed “the rate of recovery” of the species throughout the BiOp). Because the agency\n\n“entirely failed to consider an important aspect of the problem,” Sierra Club, 899 F.3d at\n\n293, the omission of any discussion of the impact on the species’s recovery constitutes yet\n\nanother ground on which we find the 2018 BiOp’s no-jeopardy determination arbitrary.\n\n * * *\n\n In sum, the 2018 BiOp’s conclusion that the ACP will not jeopardize the RPBB in\n\nBath County, Virginia, is arbitrary and capricious because it runs counter to available\n\nevidence, relies on data without providing a meaningful basis for that reliance, fails to\n\nconsider the species’s status as a whole, and fails to consider the pipeline’s impacts on\n\nRPBB recovery. See Defs. of Wildlife, 762 F.3d at 396.\n\n B. Clubshell\n\n Turning to the 2018 BiOp’s evaluation of pipeline impacts on the clubshell, we find\n\nthat FWS arbitrarily concluded that the ACP will not jeopardize the continued existence of\n\nthis species.\n\n The clubshell, a freshwater mussel, lives in “clean, stable, coarse sand and gravel\n\nruns” in rivers and streams. J.A. 138. It typically burrows entirely beneath the riverbed to\n\na depth of 2 to 4 inches. In fact, more than 70% of a stream’s clubshell population “may\n\nbe hidden below the substrate surface.” Id. Because of this, FWS has explained that\n\n“qualitative population estimates must take into account undetected individuals” and has\n\n\n 29\n\fwarned that low density population estimates “may have large margins of error due to\n\nundetected mussels.” J.A. 139.\n\n When the waterway in which clubshell live undergoes a period of heavy\n\nsedimentation, the clubshell close their valves to avoid irritation and clogging of their\n\nfeeding structures. If excessive sediment remains suspended in the waterway, the\n\nclubshell’s gills may become overwhelmed, leading the clubshell to reduce its intake of\n\nfood and water, or to completely close altogether. Clubshell also rely on oxygen that is\n\ndissolved in the water that percolates through the riverbed. Excessive sedimentation\n\nreduces the level of oxygen that is dissolved in the water and can block water from\n\npercolating through the streambed, causing resident clubshell to suffocate.\n\n The clubshell was listed as an endangered species in 1993. There remain only 13\n\nknown populations of clubshell occupying 21 streams. The clubshell’s numbers total more\n\nthan 1 million, but a majority of that population lives in 1 river, and only 7 of the 13\n\npopulations show evidence of reproductive success.\n\n In West Virginia, the clubshell occupies three streams: the Monongahela, Kanawha,\n\nand Ohio Rivers. The Monongahela River’s sole remaining clubshell population lives in\n\nHackers Creek. The West Virginia Division of Natural Resources (“WVDNR”) has\n\nmonitored the Hackers Creek population on a long-term basis, conducting monitoring\n\nsurveys every 5 years. In 2004, a total of 38 clubshell were observed at the monitoring\n\nsite. J.A. 1179. An additional 18 clubshell found further downstream were relocated to\n\nthe monitoring site because the monitoring site was safer. This brought the total number\n\nof clubshell at the monitoring site to 56. In 2009, only 29 clubshell were observed at the\n\n\n 30\n\fmonitoring site. And in 2014, 19 were documented. Id. During those surveys, no juvenile\n\nor “gravid” (pregnant) clubshell were observed.\n\n WVDNR and FWS have had “long-standing concerns about the status of the\n\nHackers Creek population.” J.A. 1011. The two agencies began meeting in early 2017 to\n\ndiscuss necessary recovery actions for the creek. As a product of those discussions, FWS\n\nissued a recovery permit under section 10(a)(1) of the ESA to White Sulphur Springs\n\nNational Fish Hatchery. 7 That permit allowed White Sulphur Springs to collect, hold, and\n\npropagate clubshell from Hackers Creek “to address ongoing declines in the population\n\nand prevent loss of the population’s genetic material.” J.A. 1179. It is unclear from the\n\nrecord whether, and to what extent, White Sulphur Springs has engaged in such recovery\n\nwork.\n\n As currently projected, 6.4 miles of pipeline construction right-of-way and 11.9\n\nmiles of access roads will exist in the upstream drainage area of Hackers Creek. J.A. 1180.\n\nSix tributaries of Hackers Creek will also be crossed by the pipeline. ACP construction\n\nwill therefore affect the “entire length” of Hackers Creek. J.A. 1199. It will lead to\n\nincreased sedimentation and turbidity in the creek, which will lead in turn to impaired\n\nfeeding for the clubshell population there. FWS expects this to result in depressed rates of\n\ngrowth, reproduction, and recruitment as Hackers Creek clubshell experience reduced\n\nphysiological function, suffocation, and even death. ACP construction also may\n\n\n\n 7\n Section 10(a)(1) of the ESA provides in relevant part that “[t]he Secretary may\npermit, under such terms and conditions as he shall prescribe . . . any act otherwise\nprohibited by section 1538 of this title for scientific purposes or to enhance the propagation\nor survival of the affected species.” 16 U.S.C. § 1539(a)(1)(A).\n\n 31\n\f“permanently alter and degrade” the Hackers Creek habitat to the point where it will no\n\nlonger be “favorable” for clubshell. Id.\n\n Because of the extent of these effects to Hackers Creek, FWS’s 2017 BiOp required\n\nAtlantic to salvage and relocate clubshell prior to pipeline construction. In April 2018,\n\nAtlantic obtained a section 10(a)(1) permit to salvage the population. The approved\n\nsalvage plan provided that the Hackers Creek clubshell population would be captured and\n\ntransported to White Sulphur Springs, where the clubshell would be “held and propagated”\n\nfor a 2-year period before reintroduction into the Monongahela River. J.A. 1180. Three\n\nindependent salvage efforts were scheduled to take place. The first two were conducted in\n\nMay and July 2018, during which 56 live clubshell and 12 live clubshell were collected,\n\nrespectively. The third salvage effort has not yet been conducted.\n\n Two months after the salvage efforts, FWS issued its 2018 BiOp, concluding that\n\npipeline construction will not jeopardize the clubshell species. In discussing the baseline\n\nconditions in Hackers Creek, the 2018 BiOp explains that the creek currently suffers from\n\na high sediment load due to agricultural practices, oil and gas activities, and river bank\n\ninstability. Despite the current sedimentation that threatens the Hackers Creek clubshell,\n\nFWS concluded that the additional sedimentation from the proposed pipeline will both\n\naffect those clubshell that are not salvaged and “degrade/alter clubshell habitat.” J.A. 1199.\n\nEven though strong water flows, such as those caused by storms, are expected to flush\n\n“some” of the additional sediment downstream of the clubshell population, “the quality of\n\nthe habitat will have decreased due to sediment remaining within interstitial spaces in the\n\n\n\n\n 32\n\fsubstrate.” J.A. 1200. Therefore, as a result of ACP construction, the Hackers Creek\n\npopulation is expected to “remain below pre-construction numbers.” J.A. 1214.\n\n Notwithstanding these effects, FWS concluded that adverse impacts to the entirety\n\nof the Hackers Creek population will not prevent FWS from meeting the Recovery Criteria\n\nfor the species as a whole because the Hackers Creek population shows no “evidence of\n\nreproductive success.” J.A. 1214. The Recovery Criteria for the clubshell require that\n\nviable clubshell populations be established in 10 separate drainages. “Viable” populations\n\nare those that “consist[ ] of sufficient numbers of reproducing individuals to maintain a\n\nstable or increasing population.” J.A. 38. Eight recovery drainages (rivers) have been\n\ndesignated, and the other two have yet to be designated. The 2018 BiOp concluded that\n\nthe Hackers Creek population was unlikely to be designated as one of the additional two\n\ndrainages because its population is not reproducing. And, according to the 2018 BiOp, the\n\nfact that 68 clubshell were salvaged in 2018 while only 19 were documented in 2014 did\n\nnot mean that the Hackers Creek population had increased; “the level of effort and survey\n\narea for the salvage effort differs from that of the long-term monitoring efforts,” thus “the\n\nresults are not comparable.” J.A. 1180.\n\n There are several flaws with the reasoning behind FWS’s no-jeopardy conclusion.\n\nFirst, the premise that only those members of an endangered species that can naturally\n\ncontribute to the species’s recovery should be protected is unsupported by legal authority.\n\nThe Ninth Circuit has held that “except in exceptional circumstances, [a project’s] injury\n\nto recovery alone would not warrant [a jeopardy finding].” Nat’l Wildlife Fed’n, 524 F.3d\n\nat 932 (second alteration in original) (quoting 51 Fed. Reg. at 19,934). However, FWS\n\n\n 33\n\fpoints to no legal authority to support the inverse of that holding—that a lack of injury to\n\nrecovery alone warrants a no-jeopardy finding. While “they are not necessarily mutually\n\nexclusive, recovery and jeopardy are two distinct concepts.” Cascadia Wildlands v.\n\nThrailkill, 806 F.3d 1234, 1244 (9th Cir. 2015). Additionally, as we explained earlier, the\n\nESA requires that FWS determine whether a proposed action “reasonably would be\n\nexpected, directly or indirectly, to reduce appreciably the likelihood of both the survival\n\nand recovery of a listed species.” 50 C.F.R. § 402.02 (emphasis added). Like jeopardy\n\nand recovery, the concepts of survival and recovery are also distinct and must each be\n\nevaluated.\n\n To be sure, the ESA is aimed at promoting self-sustaining populations. See Trout\n\nUnlimited v. Lohn, 559 F.3d 946, 957 (9th Cir. 2009); H.R. Rep. No. 95–1625 (1978), at\n\n5, reprinted in 1978 U.S.C.C.A.N. 9453, 9455. However, the ESA is not focused\n\nexclusively on protecting those populations that currently are naturally reproductive; it\n\ncontemplates that artificial propagation may be necessary to “bring any endangered species\n\nor threatened species to the point at which the measures provided pursuant to [the ESA]\n\nare no longer necessary.” 16 U.S.C. § 1532(3). Therefore, a determination that a\n\npopulation’s current nonreproductive status is sufficient grounds to conclude that a listed\n\nspecies will not be jeopardized is not in line with the law.\n\n Indeed, FWS’s own regulations suggest that a specific population’s impact on the\n\nspecies’s recovery is not dispositive of a jeopardy analysis. Those regulations provide that\n\na proposed action jeopardizes the species at issue if it is likely to reduce “the reproduction,\n\nnumbers, or distribution of that species.” 50 C.F.R. § 402.02 (emphasis added). The\n\n\n 34\n\fability to reproduce is only one of three things that FWS considers. And the 2018 BiOp\n\nindicates that pipeline construction will reduce clubshell numbers. The anticipated changes\n\nin habitat, “resulting in sublethal effects on growth and reproduction or starvation with\n\nlong-term exposure,” will affect “a majority of individual mussels,” and the Hackers Creek\n\npopulation will remain “below pre-construction numbers” even after higher river flows\n\nclear away some of the additional sedimentation from the pipeline. J.A. 1213–14\n\n(emphasis added). The BiOp does not explain why the reduction in numbers itself poses\n\nno jeopardy to the species.\n\n A second problem with the 2018 BiOp’s no-jeopardy determination is that its sole\n\nfocus on reproduction does not accord with FWS’s own Recovery Criteria for the clubshell.\n\nThe designation of recovery drainages in the Recovery Criteria did not depend on the\n\nnatural reproductive abilities of the clubshell located in those rivers. At the time the\n\nRecovery Criteria were issued in 1994, FWS’s Recovery Plan indicated that it was\n\nunknown if the population in Green River (one of the designated drainages) was\n\nreproducing. J.A. 24. The Recovery Plan also indicated that “many individuals” in the\n\nEast Fork West Branch of the St. Joseph River (another designated drainage) were adults\n\n“in excess of 12 years old.” Id. And “[m]ore research” was needed to determine the status\n\nof the clubshell population in Elk River (another designated drainage). Id. In FWS’s 2008\n\nclubshell review, the agency noted that reproducing populations of clubshell had been\n\ndocumented in 7 of the 8 listed waterways; Fish Creek did not show evidence of\n\nreproduction, yet it continues to be a designated drainage crucial for the species recovery.\n\n\n\n\n 35\n\fJ.A. 137–38. 8 The 2018 BiOp fails to explain why those populations, with no documented\n\nnatural reproduction, were nonetheless designated as crucial to the recovery of the clubshell\n\nbut the Hackers Creek population would not be.\n\n Perhaps more troubling, however, is that the Recovery Criteria were issued in 1994,\n\n25 years ago, and by FWS’s own admission, the “recovery plan . . . is out of date.” J.A.\n\n135. FWS’s 2008 5-year review of the clubshell noted that the agency could not rely on\n\ndata in the outdated recovery plan and, therefore, relied on data provided by other sources.\n\nId. That 5-year review also acknowledged that the Recovery Criteria “are vague” in that,\n\namong other things, “[p]opulation viability is not defined” and population and habitat\n\nprotection are “not well-defined.” J.A. 138. Yet, FWS continues to rely on the 25-year-\n\nold Recovery Criteria, based on concededly outdated data, and relied on that Criteria and\n\nthe 1993 data underlying the Criteria in its no-jeopardy determination here. See J.A. 1181\n\n(citing to 1993 survey data as evidence of clubshell’s likely presence in upstream area);\n\nJ.A. 1214 (relying on 1994 Recovery Criteria in determining that ACP construction will\n\nnot jeopardize the Hackers Creek clubshell).\n\n The agency’s reliance on out-of-date information also calls into question the\n\nreasonableness of FWS’s estimate of the number of clubshell present in Hackers Creek and\n\nlikely to be impacted by the ACP. It is true that FWS updated its estimate of the area\n\noccupied by the Hackers Creek clubshell based on data gathered during the 2018 salvage\n\nefforts. And yet, it continues to rely on the 1993 survey data to conclude that clubshell are\n\n\n 8\n When Fisk Creek was designated as a recovery drainage in 1994, even “[l]iving”\nclubshell in the creek were “rare.” J.A. 24. Yet, that creek was deemed necessary to\nachieve recovery of the species.\n\n 36\n\fnot likely to be present further upstream. J.A. 1181. The BiOp reaches this conclusion\n\nwhile acknowledging that the habitat “improves upstream” of the salvage area and without\n\nexplaining why the 1993 survey data is still reliable. Id. This is particularly problematic\n\nbecause the 1993 survey data indicated that “no mussels of any species were found in the\n\nupstream area,” but in more recent conversations with WVDNR about the upstream habitat,\n\nFWS was simply informed that the upstream beds were less diverse—not that they were\n\nnon-existent, as the 1993 survey found. Id. The 2018 BiOp fails to explain why the 1993\n\nsurvey remains the best available information on which to base estimates of the location of\n\nthe clubshell population. 9\n\n Nor does the 2018 BiOp sufficiently explain the discrepancies between the number\n\nof clubshell observed during the 5-year monitoring surveys and the number recovered\n\nduring the 2018 salvage efforts. The BiOp notes that the “level of effort and survey area\n\nfor the salvage effort differs from that of the long-term monitoring efforts,” J.A. 1180, but\n\nfails to elaborate. The BiOp provides no information regarding the manner in which either\n\nthe monitoring surveys or the salvage efforts were conducted. While the higher number of\n\nclubshell recovered during the salvage efforts is not necessarily indicative of reproductive\n\nsuccess, as Petitioners argue, the higher number—more than triple that of the most recent\n\nmonitoring survey—does cause us to question whether the monitoring surveys are the best\n\navailable information regarding the Hackers Creek population. This is particularly the case\n\n\n 9\n As a result of the salvage effort, FWS expanded the zone in which it believes\nclubshell to exist to 7.6 kilometers upstream, which is approximately 4.72 miles. J.A. 1181.\nA 2015 survey of the area 3.2 miles upstream had revealed no clubshell. J.A. 1179.\nTherefore, the salvage effort uncovered clubshell in that upstream area that previously had\nnot been documented.\n\n 37\n\fbecause, by its nature, the clubshell is difficult to detect: 70% of a clubshell population\n\nmay be burrowed; “[r]eproducing clubshell populations are often hard to detect when\n\ndensities are very low or surveys are single-day, catch-per-unit efforts”; “sparsely\n\ndistributed juveniles used to document successful reproduction are likely even more\n\ndifficult to detect”; and clubshell are less susceptible to capture at times outside of their\n\ngravid period. J.A. 139 (2008 clubshell review); J.A. 931.\n\n In light of the apparent conflicts of more recent information with the 1993 survey,\n\nthe much higher number of clubshell detected in 2018 than in previous surveys, and FWS’s\n\nown admission that the recovery plan on which it relies is outdated, FWS was required to\n\n“at the very least, . . . explain why it nevertheless chose to rely on the older data.” Dow\n\nAgroSciences LLC, 707 F.3d at 473. As a reviewing court, “we should not silently rubber\n\nstamp agency action that is arbitrary and capricious in its reliance on old data without\n\nmeaningful comment on the significance of more current compiled data.” Id. (quoting\n\nSierra Club v. EPA, 671 F.3d 955, 968 (9th Cir. 2012)).\n\n For the above reasons, we conclude that the 2018 BiOp’s finding that the clubshell’s\n\ncontinued survival will not be jeopardized by ACP construction is not in accordance with\n\nthe law and fails to consider important aspects of the issue before the agency. Alaska Dep’t\n\nof Envtl. Conservation, 540 U.S. at 496–97; Defs. of Wildlife, 762 F.3d at 396.\n\n C. Indiana Bat\n\n Petitioners also challenge FWS’s take limit for the Ibat. For the reasons that follow,\n\nwe agree that the take limit fails to satisfy the criteria for a proper surrogate habitat.\n\n\n\n\n 38\n\f The Ibat is an endangered migratory bat. Sierra Club, 899 F.3d at 278. Between\n\n2015 and 2017, the number of Ibats in Virginia and West Virginia declined. In Virginia,\n\nthe population declined 8.4%, and only 425 Ibats were estimated to live in the state in 2017.\n\nIn West Virginia, the decline was more severe: the population decreased by 54.7% to a\n\ntotal of 1,076 Ibats. J.A. 1189.\n\n The ACP action area will cross through the Indiana Bat Appalachian Mountain\n\nRecovery Unit in both states. Four categories of Ibat habitat will be crossed: (1) suitable\n\nunoccupied summer habitat, suitable for Ibat occupation but in which Ibats have not been\n\ndetected during the summer; (2) known use summer habitat, which includes roosting trees\n\nand is likely to contain a maternity colony of bats; (3) unknown use spring staging/fall\n\nswarming habitat, which is unsurveyed habitat within 5 miles of habitat suitable for winter\n\nhibernation (“hibernacula”); and (4) known use spring staging/fall swarming habitat, which\n\nis habitat within a 5-mile radius of known hibernacula. At issue in this appeal is the\n\npipeline’s effect on Ibats in the first category of habitat, the suitable unoccupied summer\n\nhabitat.\n\n When FWS issued its 2017 BiOp, a majority of the scheduled surveys for Ibat\n\npresence had been completed. While 4 surveys were pending in Virginia at the time, other\n\nfollow-up surveys in Virginia had been conducted and surveys in West Virginia were\n\ncomplete. The completed surveys were negative for Ibat presence in the unoccupied\n\nsummer habitat. J.A. 843. 10 Yet, as the 2017 BiOp explained, FWS anticipated that tree\n\n\n\n 10\n Ibats were acoustically detected at 17 sites along the proposed pipeline route, but\nfollow-up mist-net surveys did not capture any Ibats. J.A. 843, 1190.\n\n 39\n\fclearing on 3,275 acres of suitable unoccupied summer habitat would indirectly impact the\n\nIbat, particularly those Ibats “searching for potential roosting sites and those traveling\n\nthrough the area.” J.A. 854. This is because Ibats do not travel through zones that do not\n\nhave tree cover and would, therefore, not travel through unoccupied summer habitat once\n\nthat habitat was cleared. FWS anticipated that the greatest effects of tree clearing in this\n\nhabitat would be felt by the “pregnant females that expend additional energy to seek\n\nalternate travel corridors as a result of tree clearing.” Id. As a result of the expended\n\nenergy to seek alternative travel routes, pregnant Ibats could give birth to smaller pups,\n\n“which could decrease pup survival.” Id.\n\n In its 2017 ITS, which we vacated, FWS relied entirely on a habitat surrogate, after\n\nit improperly failed to explain why using a numeric take limit was impractical. Sierra\n\nClub, 899 F.3d at 279–80. Rather than use a numeric limit, the agency used a multiplier to\n\ndetermine that Atlantic could take half of the total suitable unoccupied summer habitat.\n\nId. 11 FWS did not explain the basis for that multiplier. We determined that this take limit\n\nlacked, among other things, a proper causal link between the Ibat and the “geographic\n\nbounds of the take limit.” Id. at 278–80. As we explained, “FWS knew that the pipeline\n\nwill directly affect 3,275.382 acres of suitable unoccupied summer habitat . . . [y]et,\n\nwithout any explanation, the agency set the take limit for [this habitat] at half of the[ ]\n\nacreage[ ]. In other words, FWS set the take limit at half the affected bat habitat that it\n\nknows the pipeline is going to affect.” Id. at 279. Because FWS knew that the pipeline\n\n\n 11\n The 2017 ITS also set take limits for the other three categories of Ibat habitat that\nwould be impacted by pipeline construction. See Sierra Club, 899 F.3d at 279. The take\nlimits of those other three categories of Ibat habitat are not at issue in this appeal.\n\n 40\n\fwould exceed the geographic bounds placed on the take, the take limit was arbitrary. Id.\n\nat 280.\n\n In an apparent attempt to correct the mistakes that we identified with the 2017 ITS,\n\nFWS has now set both a numeric take limit (2 Ibats) as well as an acreage limit (as a habitat\n\nsurrogate). As the 2018 BiOp explains, “there are challenges associated with measuring\n\ntake in terms of individuals.” J.A. 1230. Thus, FWS chose to use both limits, such that a\n\ntaking of more than 2 Ibats or more than the acreage limit will constitute an unlawful\n\ntaking.\n\n Petitioners do not challenge the numeric take limit. Rather, they challenge the\n\nhabitat surrogate. An ITS must “[s]pecif[y] the impact, i.e., the amount or extent, of such\n\nincidental taking on the species.” 50 C.F.R. § 402.14(i)(1)(i). Once FWS has established\n\nthe amount of the take in the ITS, a project proponent may not lawfully take any members\n\nof the listed species above and beyond that amount without further authorization from the\n\nagency. Although numeric take limits are preferred, FWS may instead employ a habitat\n\nsurrogate to establish a take limit when setting a numeric take limit is impractical. Id. For\n\na habitat surrogate to be proper, FWS regulations require three elements: (1) “FWS must\n\ninclude a description of ‘the causal link between the surrogate and take of the listed\n\nspecies’”; (2) “FWS must explain ‘why it is not practical to express the amount or extent\n\nof anticipated take or to monitor take-related impacts in terms of individuals of the listed\n\nspecies’”; and (3) “FWS must set ‘a clear standard for determining when the level of\n\nanticipated take has been exceeded.’” Sierra Club, 899 F.3d at 271 (quoting 50 C.F.R.\n\n§ 402.14(i)(1)(i)).\n\n\n 41\n\f FWS abandoned the use of multipliers in establishing a habitat surrogate in its 2018\n\nITS. Instead, the agency entirely eliminated the 3,275 acres of unoccupied summer habitat\n\nfrom the habitat surrogate, which now consists only of:\n\n • 137.5 acres of known use summer habitat in West Virginia;\n\n • 178.1 acres of unknown use spring staging/fall swarming habitat in West\n Virginia; and\n\n • 703.0 acres of known use spring staging/fall swarming habitat, which\n consists of 283 acres in Virginia and 420 acres in West Virginia.\n\nJ.A. 1232.\n\n Explaining the absence of suitable unoccupied summer habitat from its calculus,\n\nFWS now takes the position that “[r]emoving large areas of trees when Ibat surveys were\n\nnegative, i.e., in unoccupied summer habitat, is presumed not to result in indirect effects to\n\nIbats because survey results indicate they are not currently occupying the area.” J.A. 1190.\n\nAs FWS explains, “negative survey results are considered probable absence for Ibats and\n\nthe correct determination for project effects in these instances is ‘not likely to adversely\n\naffect’ the Ibat regardless of the amount of acres being cleared. This interpretation of Ibat\n\nnegative survey results is used by other field offices and regions of [FWS].” Id. Whereas\n\nthe 2017 BiOp indicated that a “majority” of the impacts to Ibats would be caused by the\n\nclearing of the suitable unoccupied summer habitat, J.A. 920, the 2018 BiOp concludes\n\nthat no adverse impacts will result.\n\n The 2018 BiOp offers no cogent explanation for this about-face. It makes no\n\nmention of the 2017 BiOp’s findings that clearing this habitat will have several anticipated\n\nindirect impacts, including the expenditure of additional travel energy by pregnant females,\n\n\n\n 42\n\fwhich could lead to decreased pup survival, and increased risk of predation, leading to\n\ninjury or death. J.A. 920. Instead, it relies on the fact that completed Ibat surveys were\n\nnegative for Ibat presence in the unoccupied summer habitat; because those surveys were\n\nnegative, the BiOp “presume[s]” that clearing trees in that habitat will not “result in indirect\n\neffects to Ibats.” J.A. 1190. But a majority of those surveys had been completed at the\n\ntime the 2017 BiOp and ITS were issued. Therefore, the conclusions of the 2017 BiOp\n\nwere made with the benefit of most of the surveys, surveys that showed no Ibat presence\n\nat the time. The 4 Virginia surveys that had not been completed at the time have produced\n\nno new evidence; the completed surveys merely confirmed what FWS already knew in\n\n2017—that Ibats were not detected in the unoccupied summer habitat. Thus, the newly\n\ncompleted surveys do not explain the complete change in position that FWS now takes.\n\n The 2018 BiOp’s reliance on the practices of other field offices does not rescue its\n\narbitrary change in view. The BiOp states that the agency’s new position—that negative\n\nIbat surveys support a presumption of no indirect effects to Ibats in the unoccupied\n\nhabitat— is in line with that taken by other unnamed field offices of the agency. However,\n\nthis particular field office already determined that, for this particular project, clearing over\n\n3,000 acres of suitable unoccupied summer habitat will cause “the majority of effects to\n\nIbats from tree clearing.” J.A. 920 (2017 BiOp). The 2018 BiOp and ITS fail to explain\n\nwhy the practice of other field offices is now dispositive and renders this field office’s\n\nprevious findings erroneous.\n\n Moreover, the 2018 BiOp’s conclusion is in conflict with the evidence before the\n\nagency. As FWS notes in the BiOp, two of the “primary factors” that influence the Ibat’s\n\n\n 43\n\fstatus are “habitat loss and degradation” and “forest fragmentation.” J.A. 1172. In light\n\nof those known primary threats to the Ibat, it takes little more than common sense to deem\n\narbitrary FWS’s conclusion that clearing unoccupied yet suitable forest habitat, “regardless\n\nof the amount of acres being cleared,” J.A. 1190, will have no impacts on the species.\n\n While FWS is “entitled to change its view[,] . . . it is obligated to explain its reasons\n\nfor doing so.” State Farm, 463 U.S. at 56. Because FWS has abandoned without a cogent\n\nexplanation its earlier determination that clearing thousands of acres of suitable unoccupied\n\nsummer Ibat habitat will indirectly impact the Ibat and ignores evidence of what the agency\n\npreviously considered a substantial cause of take, the 2018 ITS fails to articulate a “causal\n\nlink between the surrogate and take” of the Ibat. 50 C.F.R. § 402.14(i)(1)(i); see Sierra\n\nClub, 899 F.3d at 271 (“A ‘causal link’ is an ‘articulated, rational connection’ between the\n\nactivity and the taking of the species.” (quoting Ariz. Cattle Growers’ Ass’n v. U.S. Fish\n\nand Wildlife, Bureau of Land Mgmt., 273 F.3d 1229, 1250–51 (9th Cir. 2001))). And\n\nbecause FWS acknowledges that a numeric take limit will not sufficiently account for the\n\nincidental taking of Ibats, the 2018 ITS fails to establish a “clear standard for determining\n\nwhen the level of anticipated take has been exceeded.” 50 C.F.R. § 402.14(i)(1)(i). Thus,\n\nFWS has improperly failed to specify the impact of such incidental taking on the Ibat. Id.\n\n D. Madison Cave Isopod\n\n Petitioners’ final challenge to FWS’s 2018 action is to the take limits imposed for\n\nthe MCI. The MCI is “a threatened subterranean freshwater crustacean about a half-inch\n\nin size.” Sierra Club, 899 F.3d at 277. The MCI lives in underground phreatic karst waters\n\n\n\n\n 44\n\fin the Shenandoah Valley in Virginia. It was listed as a threatened species in November\n\n1982.\n\n According to both the 2017 and 2018 BiOps, ACP construction rights-of-way,\n\nadditional temporary work space, and access roads will impact 25 miles of MCI potential\n\nhabitat. Pipeline construction will crush or smother these crustaceans. Construction will\n\nalso lead to a temporary reduction in feeding or reproduction and will cause sediment to\n\nenter the subsurface habitat, rendering that habitat temporarily or permanently unsuitable\n\nfor MCI use.\n\n Because of the MCI’s small size, subterranean habitat, and a lack of effective survey\n\nprotocols, FWS cannot practically estimate the number of MCI that may be taken by ACP\n\nconstruction. Therefore, FWS relies on a habitat surrogate to establish take limits. We\n\npreviously concluded that the agency’s reliance on a habitat surrogate is proper because\n\n“FWS has shown that a numeric take limit is not practical here.” Sierra Club, 899 F.3d at\n\n278. At issue, however, is the soundness of that habitat surrogate. Reviewing the 2018\n\nhabitat surrogate, we conclude that FWS again has established an arbitrary take limit for\n\nthis species.\n\n A comparison of the agency’s 2017 and 2018 decisions is helpful. The 2017 BiOp\n\nfound that a total of 1,974 acres of potential MCI habitat in Augusta County, Virginia, will\n\nbe affected by ACP construction. Although there have been no documented MCI\n\n“localities” in the proposed construction right-of-way or additional temporary workspace,\n\nFWS assumed MCI presence at Cochran’s Cave in Augusta County. J.A. 865. That cave\n\nbisects the construction right-of-way and temporary workspace across 11.2 acres. That\n\n\n 45\n\f11.2-acre area will be displaced during pipeline construction. Due to the karst terrain, FWS\n\ndetermined that the ground-disturbing activities within this 11.2-acre zone will have ripple\n\neffects extending out half a mile, such that MCI will be taken in a total of 896.7 acres.\n\nAccording to the 2017 ITS, pipeline construction will kill a “[s]mall percent of” MCI in\n\nthe 11.2-acre area and harm or harass “[a]ll individuals present within the 896.7 acres.”\n\nJ.A. 872–73. The ITS said nothing about take of MCI within the remainder of the 1,974\n\nacres of MCI habitat impacted by the ACP.\n\n Like the 2017 BiOp, the 2018 BiOp indicates that pipeline construction will impact\n\na total of 1,974 acres of potential MCI habitat. J.A. 1228. The 2018 BiOp also assumes\n\nMCI presence at Cochran’s Cave. J.A. 1188. The 2018 BiOp again explains that pipeline\n\nconstruction will displace 11.2 acres at Cochran’s Cave and that construction materials and\n\nsediment released onto the surface or subsurface karst terrain due to the ground disturbing\n\nactivities in that 11.2-acre zone may reach MCI up to half a mile away. Therefore, FWS\n\nanticipates that pipeline construction will impact MCI in the 11.2 acres as well as across\n\nan additional 885.5 acres (the 896.7-acre zone used as a habitat surrogate in the 2017 ITS).\n\nId.\n\n This time, however, FWS has chosen to use as a habitat surrogate only the 11.2\n\nacres that will be directly displaced by construction. The 2018 ITS explains that only the\n\n11.2 acres are used as a habitat surrogate “because that is the area that [FWS] can actually\n\nmeasure and monitor.” J.A. 1228. The BiOp elaborates on the take limit; it explains that\n\nthe effects on the MCI that are anticipated in the additional 885.5 acres are the result of\n\nground-disturbing activities performed within the 11.2-acre zone, and a habitat surrogate\n\n\n 46\n\fof ground-disturbing activities within that 11.2-acre zone will therefore account for the\n\ntake of MCI within the entire 896.7-acre area. J.A. 1202. Like its predecessor, the 2018\n\nBiOp and ITS say nothing of the potential take of MCI within the remainder of the 1,974\n\nacres of potential species habitat.\n\n In our review of the 2017 ITS, we concluded that FWS arbitrarily limited the habitat\n\nsurrogate to the 896.7 acres near Cochran’s Cave. Sierra Club, 899 F.3d at 278. Because\n\nFWS provided no explanation for limiting the habitat surrogate to the 896.7-acre zone\n\nwhen the agency found that a total of 1,974 acres of potential MCI habitat would be\n\nimpacted by the pipeline, FWS failed to establish a proper “causal link between the isopod\n\nand the geographic bounds of the take limit.” Sierra Club, 899 F.3d at 278. 12\n\n In the 2018 ITS, FWS commits the same error that we identified in our previous\n\nopinion. The ITS provides no explanation for its failure to account for potential take of\n\nMCI in the remainder of the 1,974 acres of MCI habitat impacted by pipeline construction.\n\nAnd while the 2018 BiOp explains that FWS does “not anticipate impacts to MCI in the\n\nremainder of the 1,974 surface acres” for two reasons, neither of those reasons is availing.\n\n First, FWS asserts that there will be no impacts to MCI outside of the 896.7-acre\n\narea due to the avoidance and minimization measures (“AMMs”) put in place by FERC.\n\nJ.A. 1188. Yet, the 2018 BiOp acknowledges that the AMMs “will not be completely\n\n\n 12\n We also found that the take limit failed to provide a clear standard for enforcement\nbecause it limited take to a “small percent of” MCI within the 11.2-acrea area. Sierra Club,\n899 F.3d at 278. The 2018 ITS does not make the same mistake of using vague language\nto define the take limit, and Petitioners do not argue that the current take limit fails to\nestablish a “clear standard.” 50 C.F.R. § 402.14(i)(1)(i). Rather, Petitioners challenge the\n2018 BiOp and ITS’s conclusion that no MCI take is anticipated in the remainder of the\n1,974 acres of potential MCI habitat.\n\n 47\n\feffective in preventing all sediment from entering the phreatic water” in which the MCI\n\nlive and that AMMs “cannot completely prevent shifts in surface and sub-surface\n\nformations and hydrology from trenching, digging, or blasting.” J.A. 1217. “Sudden shifts\n\nin subterranean structures are likely to crush or trap MCIs, alter their travel corridors, or\n\nisolate portions of the population.” J.A. 1217–18. Therefore, even with the AMMs in\n\nplace, FWS “anticipate[s] a reduction in the fitness of this undocumented population.” J.A.\n\n1218.\n\n Second, FWS asserts in the BiOp that there will be no impacts to MCI outside of\n\nthe 896.7 acres because of the depth of the water that the MCI inhabit. J.A. 1188.\n\nSpecifically, the depth to groundwater in Augusta County, where MCI live, is\n\napproximately 20 feet below the surface, and pipeline construction will disturb only 6 to 8\n\nfeet below the surface. Id. Therefore, FWS concludes that pipeline construction is “not\n\nexpected to pose a significant risk to groundwater.” Id. However, nothing in the 2018\n\nBiOp states that impacts to the MCI will occur only where construction occurs within the\n\ngroundwater table. Rather, the BiOp makes clear that blasting and trenching through karst\n\nterrain will injure and kill MCI at a distance by causing the crumbling of geologic\n\nformations. J.A. 1202, 1217. While FWS took this into account in assessing the MCI\n\nlikely to be taken by construction of the right-of-way in the 11.2 acres near Cochran’s\n\nCave, the agency fails to explain why construction activities that impact the remaining\n\n1,974 acres will not have the same effects. If ground disturbing activities will cause the\n\nhorizontal crumbling of the karst terrain hundreds of acres away, it is “implausible” to\n\nexpect that the same activities will not impact the terrain a mere 12 vertical feet below. See\n\n\n 48\n\fDefs. of Wildlife, 762 F.3d at 396 (explaining that agency action is arbitrary if it is “so\n\nimplausible that it could not be ascribed to a difference in view or the product of agency\n\nexpertise”).\n\n The arbitrary nature of FWS’s choice to ignore the remainder of the potential MCI\n\nhabitat in formulating its habitat surrogate is highlighted by other evidence in the record\n\nregarding the relevant terrain. There is evidence of sinkholes and sinking streams located\n\noutside of the 11.2-acre Cochran Cave area (and outside of the 885.5-acre zone affected by\n\nground disturbing activities at the cave) but within the remainder of the 1,974 acres of\n\npotential MCI habitat. See J.A. 630 (listing sinkholes A096-8, A105-1, and A132-2 as\n\nhigh-risk sinkholes in areas where MCI presence is assumed). As the Final Environmental\n\nImpact Statement explains, these sinkholes pose a concern because “water and sediment\n\nmovement from construction activities may transfer to subterranean habitats occupied by\n\n[MCI], altering habitats used by the species.” J.A. 632. This could lead to the death of\n\nMCI or degradation of MCI habitats to the point where they are rendered unusable. Id.\n\nAnd “because of the interconnected network of karst features, actions in one area can\n\nproduce impacts considerable distances from the actual point of activity.” Id. The 2018\n\nBiOp and ITS do not address the sinkhole evidence or plausibly explain why MCI in the\n\nremaining 1,974 acres of MCI habitat that contain open sinkholes will not be subject to\n\ntake.\n\n Based on the above, it appears likely that construction activities will result in the\n\ntake of more MCI than set forth in the habitat surrogate of the 2018 ITS. FWS has again\n\nfailed to establish a “causal link between the surrogate and take of the listed species.”\n\n\n 49\n\fSierra Club, 899 F.3d at 271; 50 C.F.R. § 402.14(i)(1)(i). Therefore, the MCI take limit\n\ndoes not comply with the requirements of the ESA and is an unenforceable habitat\n\nsurrogate.\n\n\n\n V.\n\n We cannot ignore that it took FWS a mere 19 days to issue the 2018 BiOp and ITS\n\nafter FERC resumed formal consultation with the agency following our first decision in\n\nthis matter. In fast-tracking its decisions, the agency appears to have lost sight of its\n\nmandate under the ESA: “to protect and conserve endangered and threatened species and\n\ntheir habitats.” Nat’l Ass’n of Home Builders, 551 U.S. at 651. This mandate has “priority\n\nover the ‘primary missions’ of federal agencies.” Tenn. Valley Auth. v. Hill, 437 U.S. 153,\n\n185 (1978). We hope that, upon remand, FWS will consider any further action it takes\n\nwith this mandate in mind.\n\n For the foregoing reasons, FWS’s 2018 BiOp and ITS arbitrarily conclude that ACP\n\nconstruction will not jeopardize the RPBB or the clubshell and fail to create enforceable\n\ntake limits for the Ibat and MCI. Because FWS’s decisions are arbitrary and capricious,\n\nwe vacate the 2018 BiOp and ITS.\n\n\n\n VACATED AND REMANDED\n\n\n\n\n 50\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: DEFENDERS OF WILDLIFE; Sierra Club; Virginia Wilderness Committee, Petitioners, v. UNITED STATES DEPARTMENT OF THE INTERIOR; United States Fish and Wildlife Service, an Agency of the U.S. Department of the Interior; Jim Kurth, in His Official Capacity as Acting Director; Paul Phifer, in His Official Capacity as Assistant Regional Director, Ecological Services, Responsible Official, Respondents, Atlantic Coast Pipeline LLC, Intervenor.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-07-26\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-2090\\n\\n\\nDEFENDERS OF WILDLIFE; SIERRA CLUB; VIRGINIA WILDERNESS\\nCOMMITTEE,\\n\\n Petitioners,\\n\\n v.\\n\\nUNITED STATES DEPARTMENT OF THE INTERIOR; UNITED STATES FISH\\nAND WILDLIFE SERVICE, an agency of the U.S. Department of the Interior; JIM\\nKURTH, in his official capacity as Acting Director; PAUL PHIFER, in his official\\ncapacity as Assistant Regional Director, Ecological Services, Responsible Official,\\n\\n Respondents,\\n\\nATLANTIC COAST PIPELINE LLC,\\n\\n Intervenor.\\n\\n\\nOn Petition for Review of the United States Fish and Wildlife Service’s Biological Opinion\\nand Incidental Take Statement. (CP15–554–000; CP15–554–001; CP15–555–000)\\n\\n\\nArgued: May 9, 2019 Decided: July 26, 2019\\n\\n\\nBefore GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.\\n\\n\\nVacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in\\nwhich Judge Wynn and Judge Thacker joined.\\n\\n\\nARGUED: Austin Donald Gerken, Jr., SOUTHERN ENVIRONMENTAL LAW\\nCENTER, Asheville, North Carolina, for Petitioners. Kevin William McArdle,\\n\\fUNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents.\\nBrooks Meredith Smith, TROUTMAN SANDERS, LLP, Richmond, Virginia, for\\nIntervenor. ON BRIEF: Amelia Burnette, J. Patrick Hunter, Asheville, North\\nCarolina, Gregory Buppert, SOUTHERN ENVIRONMENTAL LAW CENTER,\\nCharlottesville, Virginia, for Petitioners. Eric Grant, Deputy Assistant Attorney General,\\nAndrew C. Mergen, Avi Kupfer, Environment and Natural Resources Division,\\nUNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Tony Sullins,\\nS. Amanda Bossie, Office of the Solicitor, UNITED STATES DEPARTMENT OF THE\\nINTERIOR, Washington, D.C., for Federal Respondents. Andrea W. Wortzel,\\nTROUTMAN SANDERS LLP, Richmond, Virginia, for Intervenor.\\n\\n\\n\\n\\n 2\\n\\fGREGORY, Chief Judge:\\n\\n In 2017, the U.S. Fish and Wildlife Service (“FWS”) issued a Biological Opinion\\n\\nin connection with the proposed Atlantic Coast Pipeline, which will transport natural gas\\n\\nfrom West Virginia to Virginia and North Carolina. That Opinion, required by the\\n\\nEndangered Species Act, concluded that the proposed pipeline will not jeopardize the\\n\\ncontinued existence of several endangered and threatened species that are likely to be\\n\\nimpacted by pipeline construction. As relevant here, the Biological Opinion concluded\\n\\nthat the pipeline will not jeopardize four species: the rusty patched bumble bee, clubshell,\\n\\nIndiana bat, or Madison Cave isopod. However, because FWS anticipated the incidental\\n\\ntaking, i.e., harassing or killing, of those species, the agency issued an Incidental Take\\n\\nStatement with its Biological Opinion, setting limits on the number of each species that the\\n\\npipeline could legally take.\\n\\n Petitioners challenged the take limits imposed by the 2017 Incidental Take\\n\\nStatement. After reviewing that agency action, we determined that FWS’s take limits were\\n\\narbitrary and capricious. Accordingly, we vacated the Incidental Take Statement.\\n\\n Shortly after our decision, FWS issued a new Biological Opinion and Incidental\\n\\nTake Statement. Petitioners now challenge the findings of both of those agency actions.\\n\\nSpecifically, Petitioners assert that FWS improperly determined that pipeline construction\\n\\nwill not jeopardize the rusty patched bumble bee or the clubshell, and they challenge the\\n\\nvalidity of the take limits imposed for the Indiana bat and the Madison Cave isopod.\\n\\nBecause we find that FWS arbitrarily reached its no-jeopardy conclusions and failed to\\n\\n\\n\\n\\n 3\\n\\fcorrect the deficiencies in the take limits that we identified in the previous appeal, we grant\\n\\nthe petition and vacate the 2018 Biological Opinion and Incidental Take Statement.\\n\\n\\n\\n I.\\n\\n Before we turn to the relevant facts of this case, we review the statutory context in\\n\\nwhich this appeal arises. The Endangered Species Act (“ESA”) was enacted “to protect\\n\\nand conserve endangered and threatened species and their habitats.” Sierra Club v. U.S.\\n\\nDep’t of the Interior, 899 F.3d 260, 268 (4th Cir. 2018) (quoting Nat’l Ass’n of Home\\n\\nBuilders v. Defs. of Wildlife, 551 U.S. 644, 651 (2007)). In line with that purpose, the ESA\\n\\nprohibits federal agencies from engaging in any action “likely to jeopardize the continued\\n\\nexistence of any endangered species or threatened species.” 16 U.S.C. § 1536(a)(2). The\\n\\nAct also prohibits the “take” of endangered and threatened species, i.e., the harassing,\\n\\nharming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, collecting of\\n\\na listed species, or any “attempt to engage in such conduct.” Id. §§ 1532(19),\\n\\n1538(a)(1)(B). A person harms or harasses a listed species when she disrupts that species’s\\n\\n“normal behavioral patterns” or causes indirect injury by “habitat modification.” Sierra\\n\\nClub, 899 F.3d at 269; 50 C.F.R. § 17.3.\\n\\n “Any person who knowingly takes an endangered or threatened species is subject\\n\\nto substantial civil and criminal penalties, including imprisonment.” Sierra Club, 899 F.3d\\n\\nat 269 (internal quotation marks omitted) (quoting Bennett v. Spear, 520 U.S. 154, 170\\n\\n(1997)); see 16 U.S.C. § 1540(a), (b). But a person may escape liability for taking a listed\\n\\n\\n\\n\\n 4\\n\\fspecies when “such taking is incidental to, and not the purpose of, the carrying out of an\\n\\notherwise lawful activity.” 16 U.S.C. § 1539(a)(1)(B).\\n\\n To comply with the ESA, federal agencies faced with permit applications for\\n\\nconstruction projects must ensure, in consultation with the U.S. Fish and Wildlife Service\\n\\n(“FWS”), that “any action authorized, funded, or carried out by such agency . . . is not\\n\\nlikely to jeopardize the continued existence of” a listed species or “result in the destruction\\n\\nor adverse modification” of designated critical habitat. 16 U.S.C. § 1536(a)(2). Formal\\n\\nconsultation with FWS is required when an agency proposing to act (“action agency”)\\n\\ndetermines that its action “may affect” a listed species or critical habitat. 50 C.F.R.\\n\\n§ 402.14(a).\\n\\n When consultation has concluded, FWS issues a Biological Opinion (“BiOp”)\\n\\naddressing whether the proposed action “is likely to jeopardize the continued existence of\\n\\na listed species or result in the destruction or adverse modification of critical habitat.” Id.\\n\\n§ 402.14(g)(4), (h)(3). A proposed action jeopardizes the continued existence of a species\\n\\nwhen it “reasonably would be expected, directly or indirectly, to reduce appreciably the\\n\\nlikelihood of both the survival and recovery of a listed species in the wild by reducing the\\n\\nreproduction, numbers, or distribution of that species.” Id. § 402.02. And a proposed\\n\\naction destroys or adversely modifies a species’s critical habitat when it directly or\\n\\nindirectly alters it in a way that “appreciably diminishes the value of critical habitat for the\\n\\nconservation of a listed species.” Id.\\n\\n If FWS concludes that a proposed project is not likely to jeopardize the continued\\n\\nexistence of a listed species but will result in the take of some members of that species, the\\n\\n\\n 5\\n\\fconsulting party may lawfully take those members only if it first obtains a valid Incidental\\n\\nTake Statement (“ITS”) from FWS setting enforceable limits on the quantity that may be\\n\\ntaken. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(g)(7), (i). Both the BiOp and ITS are\\n\\nformulated during the formal consultation process with FWS, and the ITS is issued with,\\n\\nand supplements, the BiOp. See 50 C.F.R. § 402.14(g), (i)(1); Or. Nat. Res. Council v.\\n\\nAllen, 476 F.3d 1031, 1036 (9th Cir. 2007).\\n\\n With this framework in mind, we turn to the facts underlying this appeal.\\n\\n\\n\\n II.\\n\\n The Atlantic Coast Pipeline (“ACP”) is a proposed 600-mile pipeline designed to\\n\\ntransport natural gas from West Virginia to Virginia and North Carolina. J.A. 816.\\n\\nConstruction of the pipeline will require a 125-foot right-of-way that will disturb 11,776\\n\\nacres of land. Construction will also require additional temporary workspace and the use\\n\\nof access roads. To secure these spaces, and during construction itself, certain forested\\n\\nareas will need to be cleared of trees, ground will be displaced, and sediment will be\\n\\ndeposited into river waters.\\n\\n In 2015, Intervenor Atlantic Coast Pipeline, LLC (“Atlantic”) applied to the Federal\\n\\nEnergy Regulatory Commission (“FERC”) for a certificate of public convenience and\\n\\nnecessity for the ACP. That certificate, required under the Natural Gas Act, serves as the\\n\\ngrant of final approval to construct the pipeline. 15 U.S.C. § 717f. The Natural Gas Act\\n\\nalso requires Atlantic to obtain “any permits, special use authorizations, certifications,\\n\\nopinions, or other approvals as may be required under Federal law.” N.Y. Dep’t of Envtl.\\n\\n\\n 6\\n\\fConservation v. FERC, 884 F.3d 450, 452–53 (2d Cir. 2018) (quoting 15 U.S.C.\\n\\n§ 717n(a)(1), (2)). As the lead agency, FERC is responsible for coordinating all applicable\\n\\nfederal authorizations. 15 U.S.C. § 717n(b)(1).\\n\\n After Atlantic submitted its application to FERC, it was determined that pipeline\\n\\nconstruction may affect several threatened or endangered species. Therefore, FERC\\n\\ninitiated formal consultation with FWS to determine whether the pipeline would likely\\n\\njeopardize the continued existence of those species. See 50 C.F.R. § 402.14(a).\\n\\n On October 13, 2017, FERC issued a certificate of public convenience and necessity\\n\\nfor the ACP. FERC conditioned its approval of the pipeline on Atlantic’s receipt of all\\n\\nstate and other federal authorizations required for the project, including the pending\\n\\nauthorization from FWS.\\n\\n On October 16, 2017, FWS issued a BiOp, concluding that the ACP is not likely to\\n\\njeopardize the existence of any of the affected listed species. FWS also issued an ITS\\n\\nbecause it determined that pipeline construction was likely to result in the take of members\\n\\nof six of those species. The ITS did not set numeric take amounts for five of the species to\\n\\nbe taken. Instead, it relied on habitat surrogates, setting take limits such as “small percent\\n\\nof,” “majority,” and “all.” J.A. 871–74.\\n\\n In January 2018, Petitioners sought review of the ITS. Sierra Club v. U.S. Dep’t of\\n\\nthe Interior, 899 F.3d 260 (4th Cir. 2018). They challenged only the habitat surrogates\\n\\nused by FWS. Id. at 270. Petitioners did not challenge the BiOp’s determination that ACP\\n\\nconstruction will not jeopardize the listed species. Id. at 266, 270.\\n\\n\\n\\n\\n 7\\n\\f In May 2018, we vacated the ITS. Sierra Club v. U.S. Dep’t of the Interior, 722 F.\\n\\nApp’x 321, 322 (4th Cir. 2018). As we later explained in our August 6, 2018, opinion,\\n\\nFWS had failed to create proper habitat surrogates, failed to explain why numeric take\\n\\nlimits were not practical, and failed to create enforceable take limits for the clubshell (a\\n\\nmussel), rusty patched bumble bee, Madison Cave isopod (a crustacean), Indiana bat, and\\n\\nnorthern long-eared bat. Sierra Club, 899 F.3d at 275–81.\\n\\n On August 23, 2018, FERC reinitiated formal consultation with FWS to correct the\\n\\nITS and because of “new information . . . for some of the species.” J.A. 1101. Less than\\n\\nthree weeks later, on September 11, 2018, FWS issued a new BiOp and ITS. As relevant\\n\\nhere, the 2018 BiOp concluded that the ACP will not jeopardize the survival and recovery\\n\\nof the rusty patched bumble bee (“RPBB”), clubshell, Indiana bat (“Ibat”), or the Madison\\n\\nCave isopod (“MCI”). The ITS set take limits for each of these species.\\n\\n Petitioners now challenge the BiOp’s conclusion that the ACP will not jeopardize\\n\\nthe RPBB or the clubshell. Petitioners also challenge the take limits imposed for the Ibat\\n\\nand MCI. We stayed the 2018 BiOp and ITS pending our review of this petition.\\n\\n We have jurisdiction under the Natural Gas Act. 15 U.S.C. § 717r(d)(1).\\n\\n\\n\\n III.\\n\\n We review the 2018 BiOp and ITS under the default standard of the Administrative\\n\\nProcedure Act (“APA”) and ask whether the challenged actions are “arbitrary, capricious,\\n\\nan abuse of discretion, or otherwise not in accordance with law.” Alaska Dep’t of Envtl.\\n\\nConservation v. EPA, 540 U.S. 461, 496‒97 (2004) (quoting 5 U.S.C. § 706(2)(A)); see\\n\\n\\n 8\\n\\falso Friends of Back Bay v. U.S. Army Corps of Eng’rs, 681 F.3d 581, 586–87 (4th Cir.\\n\\n2012). Agency action is arbitrary and capricious “if the agency relied on factors which\\n\\nCongress has not intended it to consider, entirely failed to consider an important aspect of\\n\\nthe problem, offered an explanation for its decision that runs counter to the evidence before\\n\\nthe agency, or is so implausible that it could not be ascribed to a difference in view or the\\n\\nproduct of agency expertise.” Defs. of Wildlife v. N.C. Dep’t of Transp., 762 F.3d 374, 396\\n\\n(4th Cir. 2014) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins., 463 U.S.\\n\\n29, 43 (1983)). In short, “we must ensure that the agency has examined the relevant data\\n\\nand articulated a satisfactory explanation for its action.” Id. (internal quotation marks and\\n\\nbrackets omitted) (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009)).\\n\\n“Review under this standard is highly deferential, with a presumption in favor of finding\\n\\nthe agency action valid.” Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177,\\n\\n192 (4th Cir. 2009). But we will vacate agency action if it is not “based on a consideration\\n\\nof the relevant factors” or where “there has been a clear error of judgment.” Marsh v. Or.\\n\\nNat. Res. Council, 490 U.S. 360, 378 (1989) (citation omitted).\\n\\n\\n\\n IV.\\n\\n In preparing its BiOp, FWS was required to use “the best scientific and commercial\\n\\ndata available.” 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(g)(8). FWS’s “failure to do\\n\\nso violates the APA.” San Luis & Delta-Mendoza Water Auth. v. Locke, 776 F.3d 971, 995\\n\\n(9th Cir. 2014). The purpose of the best-available-data standard is to ensure that FWS does\\n\\nnot act based on “speculation and surmise.” Id. (citing Bennett v. Spear, 520 U.S. 154, 176\\n\\n\\n 9\\n\\f(1997)). Under this standard, FWS may decide which data and studies are the best\\n\\navailable, and its decision is reviewed under a deferential standard. Miccosukee Tribe of\\n\\nIndians of Fla. v. United States, 566 F.3d 1257, 1265 (11th Cir. 2009). The agency is not\\n\\nrequired to conduct new studies when evidence is available upon which a determination\\n\\ncan properly be made. Sw. Ctr. for Biological Diversity v. Babbitt, 215 F.3d 58, 60 (D.C.\\n\\nCir. 2000).\\n\\n This does not mean, however, that FWS is barred from requesting new studies when\\n\\navailable data is inadequate to prepare a BiOp and render a jeopardy determination. On\\n\\nthe contrary, FWS regulations for the ESA provide that “[t]he federal agency requesting\\n\\nformal consultation”—in this case FERC—“shall provide [FWS] with the best scientific\\n\\nand commercial data available or which can be obtained during the consultation for an\\n\\nadequate review of the effects that an action may have upon listed species or critical\\n\\nhabitat.” 50 C.F.R. § 402.14(d) (emphasis added). And the regulations further provide\\n\\nthat “[w]hen [FWS] determines that additional data would provide a better information\\n\\nbase from which to formulate a biological opinion, the Director may request an extension\\n\\nof formal consultation and request that the Federal Agency”—again, FERC in this case—\\n\\n“obtain additional data to determine how or to what extent the action may affect listed\\n\\nspecies or critical habitat.” Id. § 402.14(f). Accordingly, federal law expressly authorizes\\n\\nFWS to request new survey data from a consulting agency if the existing data is not\\n\\n“adequate” to determine the effect of the project.\\n\\n The best-available-data standard also means that FWS is not free to disregard other\\n\\n“available biological information” that “is in some way better than the evidence [it] relies\\n\\n\\n 10\\n\\fon.” Kern Cty. Farm Bureau v. Allen, 450 F.3d 1072, 1080–81 (9th Cir. 2006) (alteration\\n\\nin original) (citations omitted). Rather, FWS must seek out and consider all existing\\n\\nscientific data relevant to the decision it is tasked with making. Heartwood, Inc. v. U.S.\\n\\nForest Serv., 380 F.3d 428, 436 (8th Cir. 2004).\\n\\n After reviewing the agency’s 2018 BiOp and ITS, we agree with Petitioners that\\n\\nFWS has again acted arbitrarily. We address in detail the agency’s decisions with respect\\n\\nto each listed species in turn.\\n\\n A. Rusty Patched Bumble Bee\\n\\n In their previous appeal, Petitioners challenged the take limits imposed by FWS on\\n\\nthe RPBB. We found that those limits violated the Endangered Species Act. Sierra Club,\\n\\n899 F.3d at 277. Now, Petitioners challenge the agency’s finding in the BiOp that the ACP\\n\\nwill not jeopardize the RPBB in the first instance.\\n\\n Some background on the RPBB and the model used by FWS in assessing impacts\\n\\non the species is helpful here. The RPBB is a colonial bee species with an annual cycle.\\n\\nThat cycle begins in early spring, when nests or colonies are started by solitary queen bees.\\n\\nThose nests, although occasionally observed above ground, typically are located\\n\\nunderground, in abandoned rodent nests or other similar cavities. Throughout the summer,\\n\\nthe foundress queen bees produce worker bees. Worker bees are responsible for foraging\\n\\nfor food for the colony. The health of the colony depends on the number of workers\\n\\nforaging and the abundance of foraging habitat. RPBB colony sizes are larger than those\\n\\nof other bumble bees, and a healthy colony is composed of up to 1,000 worker bees in a\\n\\nseason. Endangered and Threatened Wildlife and Plants; Endangered Species Status for\\n\\n\\n 11\\n\\fRusty Patched Bumble Bee, 82 Fed. Reg. 3186, 3187 (Jan. 11, 2017). In late summer and\\n\\nearly fall, the queen bee produces male drones and new queens. At the end of the cycle,\\n\\nmale drones and the new queens mate, while the foundress queen and workers die. The\\n\\nnew queens then overwinter, or hibernate. Overwintering occurs underground, primarily\\n\\nin soft-soil and leaf-litter chambers that the queens form in forested areas. After\\n\\noverwintering, these queens emerge in the spring, and the cycle begins again.\\n\\n Historically, the RPBB was “abundant and widespread, with hundreds of\\n\\npopulations across an expansive range.” 82 Fed. Reg. at 3188. Since the late 1990s,\\n\\nhowever, RPBB populations have plummeted by nearly 90 percent. When the species was\\n\\nlisted as endangered in January 2017, 95% of the 103 known populations had been\\n\\ndocumented by 5 or fewer bees. Id. at 3205. As FWS has recognized, the RPBB “is so\\n\\nimperiled that every remaining population is important for the continued existence of the\\n\\nspecies.” J.A. 941. Without affirmative protection, all but one RPBB ecoregion are\\n\\npredicted to be extinct within 5 years, and that one remaining ecoregion would cease to\\n\\nexist within 30 years.\\n\\n One contributing factor to the RPBB’s swift decline is that RPBBs suffer, as do\\n\\nother bee colonies, from a phenomenon known as the diploid male vortex. This\\n\\nphenomenon occurs when related bees mate, leading to a higher chance of haplodiploidy—\\n\\na condition where 50% of the haploid worker bees are replaced by diploid males that do\\n\\nnot contribute food resources to the colony. This, in turn, leads to a higher likelihood of\\n\\ncolony collapse. Many RPBB populations are victimized by other stressors as well,\\n\\nincluding pathogens, pesticides, habitat loss and degradation, and climate change.\\n\\n\\n 12\\n\\f Concurrent with its preparation of the BiOp for the ACP project, FWS developed\\n\\nguidelines for federal projects that may affect the RPBB’s continued existence. J.A. 514;\\n\\nJ.A. 1110. Under those guidelines, FWS uses a model to identify areas that are likely to\\n\\nbe populated by RPBBs, areas referred to as “high potential zones.” J.A. 517–18. The\\n\\nboundaries of those high potential zones are delineated using extant populations data\\n\\n(species observation data that is less than 10 years old), estimated foraging and dispersal\\n\\ndistances of the bees, and surrounding vegetation types. While the species may be present\\n\\nelsewhere, the modeled high potential zones are thought to “provide a reasonable basis for\\n\\ndescribing where the species is likely to be present and where federal agencies should\\n\\nconsult with [ ] FWS to evaluate the potential effects of their actions.” J.A. 518. If a\\n\\nproject area overlaps with a habitat suitable to RPBBs in a high potential zone, the\\n\\nconsulting agency has two options to determine actual bee presence: it may survey the\\n\\narea of overlap to verify the presence of RPBBs or it may choose to forgo a survey, in\\n\\nwhich case RPBB presence is assumed and consultation with FWS is required. J.A. 521.\\n\\n In its 2017 BiOp, FWS concluded that a 653-hectare high potential zone for the\\n\\nRPBB existed in Bath County, Virginia. This zone was calculated based on the sighting\\n\\nof one worker bee foraging in the George Washington National Forest along a pipeline\\n\\naccess road. While FWS could not determine where the nest for the worker bee’s colony\\n\\nwas located and did not survey for that colony, it calculated the high potential zone based\\n\\non average foraging distances of RPBB workers and the location of habitat suitable for\\n\\nnesting and overwintering queens. The 2017 BiOp acknowledged that “there is uncertainty\\n\\nregarding habitat use and distribution of the species during certain life stages and time\\n\\n\\n 13\\n\\fperiods.” J.A. 840. The BiOp also explained that the “[s]tatus of colony and population\\n\\nin the [high potential zone] is unknown at this time because while the presence of a worker\\n\\nbee signifies the existence of a colony, [the agency had] no accurate way to assess the status\\n\\nof the local population.” Id. Accordingly, in determining RPBB “distribution and habitat\\n\\nuse,” FWS relied on various “assumptions, based on the best available information.” Id.\\n\\nOne of those assumptions was that “RPBB activity (foraging, nesting, overwintering\\n\\nqueens) [was] concentrated in the [high potential zone].” Id. Other assumptions related to\\n\\nthe density of the RPBB population in Bath County. For example, FWS assumed that the\\n\\none observed worker bee was part of a colony composed of 100 to 1,000 worker bees that\\n\\nproduced 6 to 8 new foundress queens each cycle. FWS also assumed that the density of\\n\\nRPBB colonies in the high potential zone was 14 nests per 100 hectares, an estimate that\\n\\nwas calculated by using the nesting density of the “common and abundant” buff-tailed\\n\\nbumble bee. Id.\\n\\n In July and August 2018, FWS received information from the Virginia Department\\n\\nof Conservation and Recreation (“DCR”) that 22 RPBBs—9 in Bath County and 13 in\\n\\nHighland County—had been observed during 2018 bee surveys that the state agency had\\n\\nconducted. The 2018 sightings were closer to the pipeline right-of-way than the lone 2017\\n\\nsighting had been and were near 3 project access roads rather than just one.\\n\\n Based on this new information, FWS expanded the Bath County high potential zone\\n\\nfrom 653 hectares to 969.6 hectares. The newly drawn high potential zone was based on\\n\\nthe 2017 and 2018 bee sightings and the RPBB’s “potential ability to disperse across the\\n\\nlandscape.” J.A. 1183. Just as FWS had assumed in the 2017 BiOp that the RPBB was\\n\\n\\n 14\\n\\flikely to occur in the 653-hectare high potential zone, the agency now assumed that RPBB\\n\\nactivity is concentrated within the expanded 969.6-hectare high potential zone. FWS\\n\\nassumed that the high potential zone contains 156.3 hectares of nesting and foraging habitat\\n\\nand 900.7 hectares of overwintering habitat. Based on these assumptions, FWS determined\\n\\nthat the ACP action area overlaps with the newly drawn high potential zone and\\n\\nencompasses 6.29 hectares of nesting and foraging habitat and 10.27 hectares of\\n\\noverwintering habitat. The 2018 BiOp also relied on the same nest density as the 2017\\n\\nBiOp—14 nests per 100 hectares.\\n\\n Evaluating the effects of pipeline construction in the newly drawn high potential\\n\\nzone, the 2018 BiOp determined that construction will likely cause the crushing of 8\\n\\noverwintering queens, the crushing of worker bees, and will impact one RPBB colony\\n\\ncapable of producing 30 overwintering queens. These estimates were based on FWS’s\\n\\nassumption that 22 RPBB nests are located in the high potential zone 1 and that each nest\\n\\nproduces 30 overwintering queens, resulting in a total of 660 overwintering queens each\\n\\ncycle in the high potential zone—a number of queens that far exceeds the 6-8 queen-per-\\n\\ncolony estimate of the 2017 BiOp and that exceeds the total number of RPBBs that have\\n\\nbeen documented in current populations worldwide. 2 Explaining that a “healthy” bee\\n\\n\\n\\n\\n 1\\n This assumption is based on a nest density of 0.14 nests per hectare within the total\\nassumed nesting habitat of 156.3 hectares.\\n 2\\n As noted earlier, 95% of the 103 remaining populations of RPBB (or 98\\npopulations) have been observed with 5 or fewer bees. One of the other 5 populations was\\ndocumented by 30 bees—the maximum number observed in any of the remaining\\n(Continued)\\n\\n\\n 15\\n\\fpopulation typically contains tens to hundreds of colonies and that the loss of a single\\n\\ncolony or overwintering queen “could reduce the health of a metapopulation 3 due to lost\\n\\nopportunities to interbreed,” J.A. 1216, FWS nonetheless concluded that the destruction of\\n\\n1 of the 22 colonies in the high potential zone, with the potential to produce 30 foundress\\n\\nqueens, and the loss of 8 overwintering queens were “not likely to negatively impact the\\n\\nfitness or survival of the population,” J.A. 1217. Accordingly, FWS found that the ACP\\n\\nwould not jeopardize the RPBB.\\n\\n In challenging this no-jeopardy finding, Petitioners advance several arguments that\\n\\nwe find persuasive. We address each in turn.\\n\\n 1. Nest Density\\n\\n We first find that the 2018 BiOp’s nest density calculation—a calculation that FWS\\n\\nused to determine the total number of RPBBs likely to be impacted by pipeline\\n\\nconstruction—is arbitrary because it is not based on the best available information and in\\n\\nfact ignores evidence that the agency itself has developed.\\n\\n Underlying the arbitrary nature of the 2018 BiOp’s nest density calculations is the\\n\\nfact that “[t]here are no studies that estimate RPBB nest density.” J.A. 1185. Although\\n\\nFWS has developed guidance for surveying the RPBB, it has conducted no surveys to\\n\\nestimate RPBB nest density. In fact, the agency made a point of avoiding surveys in order\\n\\n\\n\\n\\npopulations. Thus, assuming that the other 4 populations were documented with at most\\n29 bees each, the total number of observed RPBBs worldwide would be at most 636.\\n 3\\n A “metapopulation” is “an assemblage of interacting subpopulations.” J.A. 407.\\nA subpopulation is composed of many bee colonies, each of which represents one\\nreproductive unit. Id.\\n\\n 16\\n\\fto “fast-track” pipeline authorization. See J.A. 567 (“Our internal direction is that we can’t\\n\\nrequire surveys and will not make further requests for surveys that interfere with\\n\\napplicant’s project schedule since these are priority fast-track projects, and we will not state\\n\\nthat we have insufficient information to initiate consultation and will not delay initiation\\n\\nof consultation based on lack of baseline/species survey data.”). And while the Virginia\\n\\nDCR observed RPBBs in its 2018 bee survey, that survey was unrelated to the ACP project\\n\\nand was not designed specifically to document RPBB populations or to calculate nest\\n\\ndensity of the species.\\n\\n Without survey data, FWS relied on several assumptions and on the known nest\\n\\ndensities of other bumble bees to estimate the number of RPBBs likely to be present in the\\n\\naction area and thus impacted by the ACP. The agency reviewed 11 studies of nest density\\n\\nfor 7 other bumble bee species and ultimately based its RPBB nest density calculations on\\n\\nthe nest densities of 2 other species: the buff-tailed bumble bee and the great yellow\\n\\nbumble bee. Because FWS did not “develop[ ] additional data,” Sierra Club, 899 F.3d at\\n\\n273, we must determine whether the available evidence of other species’ nest densities is\\n\\na sufficient basis for FWS’s determinations here such that FWS was not required to ask\\n\\nFERC to conduct additional surveys. See Sw. Ctr. for Biological Diversity, 215 F.3d at\\n\\n60. 4\\n\\n\\n 4\\n As we explained in our prior decision in this case, the ESA “does not foreclose\\nFWS or an applicant from developing additional data.” Sierra Club, 899 F.3d at 273; see\\nOr. Nat. Res. Council, 476 F.3d at 1038 (vacating ITS where BiOp noted that species\\nsurvey data was out-of-date and that surveys had been discontinued and where agency\\nnever stated that it was not possible to update survey data to estimate number of takings).\\n(Continued)\\n\\n\\n 17\\n\\f We cannot conclude from the 2018 BiOp that FWS’s reliance on either of the two\\n\\nother species’ data is anything more than arbitrary and capricious. The nest density for the\\n\\nbuff-tailed bumble bee—which, unlike the RPBB, is a “common and abundant” species—\\n\\nvaries from 0.04 nests/hectare (“ha”) to 0.88 nests/ha, with a mean density of 0.34 nests/ha.\\n\\nJ.A. 1185. FWS determined that 0.14 nests/ha would be a reasonable estimate for the\\n\\nRPBB because “densities of 0.04 to 0.15 nests/ha for the buff-tailed bumblebee represented\\n\\n40 percent of the estimates in [buff-tailed bee] studies and the buff-tailed bumblebee is\\n\\ncommon and abundant compared to the relatively rare RPBB.” Id. While FWS\\n\\nacknowledged that applying the mean density of the buff-tailed bumble bee “would likely\\n\\nbe an overestimate of the density of RPBB nests,” it did not explain why it chose the higher\\n\\nend of the 0.04 to 0.15 nests/ha range as the appropriate estimate. Id. Rather, the agency\\n\\nappears to have randomly picked that number out of a hat.\\n\\n FWS also determined that a density of 0.14 nests/ha was a reasonable estimate\\n\\nbecause the nest density for the great yellow bumble bee—which has undergone a\\n\\n“precipitous decline” and nests in habitats similar to those of the RPBB—is 0.19 nests/ha.\\n\\nJ.A. 1185–86. The study of the great yellow bumble bee on which the BiOp relied included\\n\\na “caveat” that the researchers “concentrated on sites known to hold [great yellow bumble\\n\\n\\nThe 2018 BiOp states that, because suitable foraging habitat changes locations from one\\nyear to another and bee numbers “fluctuate throughout the season,” it is likely not possible\\nto conduct surveys to determine RPBB nest density. J.A. 1185. However, in the same\\nbreath, FWS likens the nest density of the RPBB to the known nest densities of 2 other\\nbumble bees, after studying nest densities of 7 other bees. J.A. 1185–86. It is unclear why\\nthe nest densities of those bees—whose numbers likely also fluctuate throughout the season\\nand whose foraging habitats also change—can be studied, but those of the RPBB cannot.\\nAnd among the objectives of FWS’s survey protocols for the RPBB is the monitoring of\\nRPBB populations to determine “relative abundance and species richness.” J.A. 1185.\\n\\n 18\\n\\fbees] in some numbers” and warned that the study’s “conclusions may not extend to other,\\n\\nsmaller and more peripheral populations.” J.A. 175. Given that caveat, and the likely\\n\\n“smaller and more peripheral” RPBB population at issue, FWS does not explain why that\\n\\nstudy is nonetheless a reliable comparator, other than the fact that the great yellow bumble\\n\\nbee is also in decline. Moreover, FWS fails to explain why it chose to use the specific\\n\\nfigure of 0.14 nests/ha as opposed to a density closer to that of the great yellow bumble\\n\\nbee. Again, the nest density chosen by the agency appears to have been selected at random.\\n\\n The arbitrariness of the nest density figure is further highlighted by other evidence\\n\\navailable to FWS, evidence which the 2018 BiOp fails to consider in estimating RPBB\\n\\npresence in the pipeline action area. In its 2017 regulations adding the RPBB to the list of\\n\\nendangered species, FWS explained:\\n\\n Since the late 1990s, rusty patched bumble bee abundance and\\n distribution has declined significantly. Historically, the rusty\\n patched bumble bee has been documented from 926\\n populations; since 1999, the species has been observed at 103\\n populations, which represents an 88 percent decline from the\\n number of populations documented prior to 2000. We\\n assumed any population with at least one record (one\\n individual rusty patched bumble bee seen) since 1999 is\\n current, and thus, the overall health and status of these 103\\n current populations is uncertain. Indeed, many populations\\n have not been reconfirmed since the early 2000s and may no\\n longer persist. For example, no rusty patched bumble bees\\n were observed at 41 (40 percent) of the current sites since 2010\\n and at 75 (73 percent) of the 103 sites since 2015. Furthermore,\\n many of the current populations are documented by only a few\\n individuals; 95 percent of the populations are documented by\\n 5 or fewer individuals; the maximum number found at any site\\n was 30. The number of individuals constituting a healthy\\n colony is typically several hundred, and a healthy population\\n typically contains tens to hundreds of colonies.\\n\\n\\n\\n 19\\n\\f82 Fed. Reg. at 3188 (emphases added). Although nearly all of the currently known RPBB\\n\\npopulations have been documented by at most 5 bees, FWS determined that the RPBB\\n\\npopulation in the high potential zone here includes 22 nests capable of producing 30 queen\\n\\nbees each, for a total of 660 queens produced each cycle. J.A. 1215. The number of queens\\n\\nper nest that FWS estimates is equal to the maximum number of total bees observed at any\\n\\none colony and does not include an estimate of the number of worker bees believed to be\\n\\npresent, which would no doubt be much higher than 30 per nest. The BiOp is silent on\\n\\nwhy these projections are reasonable in light of the known and documented record of\\n\\nseverely declining RPBB populations.\\n\\n The reasonableness of the 30-queens-per-nest figure also fails to find support in\\n\\nstudies of other species’ queen production rates cited by FWS. The 2018 BiOp cites to\\n\\nFWS’s August 2018 draft Voluntary Implementation Guidance for the RPBB as support\\n\\nfor its 30-queens-per-nest estimate. J.A. 1184–85, 1253. That draft guidance explains that\\n\\ntwo studies of two colonies of common and abundant buff-tailed bumble bees reared in\\n\\nnest boxes (not in the wild) showed a production average of 14 and 31 queens, respectively.\\n\\nJ.A. 1127. In discussing those studies, the draft guidance notes that FWS “would expect\\n\\nnests in natural settings to produce fewer queens on average due to the increase in hazards\\n\\nrelative to nest boxes.” Id. Therefore, bees like the RPBB in the high potential zone would\\n\\nbe expected to produce fewer queens than RPBBs that were raised in nest boxes, free from\\n\\nmany of the perils found in nature. And because the RPBB is much less abundant than the\\n\\nbuff-tailed bumble bee, it would be logical to expect that RPBB queen production rates\\n\\nwould also be lower than those of the bees’ buff-tailed cousins. Nonetheless, FWS\\n\\n\\n 20\\n\\fconcluded that RPBBs, which are in significant decline, produce an average of 30 queens\\n\\nper nest in natural habitats, “similar to the higher of the two buff-tailed bumble bee\\n\\nstudies.” J.A. 1127 (emphasis added).\\n\\n The draft guidance also relies on a density range of 20 to 40 queens per nest, an\\n\\nestimate provided to FWS by Dr. Elaine Evans of the University of Minnesota. Id.\\n\\nHowever, in an email to FWS explaining the basis for that range, Dr. Evans stated, “All I\\n\\nhave is a wild guess based on what I’ve seen in other captive and retrieved wild colonies.\\n\\nRange would be 0 - ~ 100. My guess for an average per colony ignoring the ones that don’t\\n\\nproduce queens would be 20-40.” J.A. 929 (emphases added).\\n\\n FWS’s sole explanation in its draft guidance for its use of the 30-queens-per-nest\\n\\nfigure is that it is the midpoint of the range “guess[ed]” by Dr. Evans and similar to the\\n\\nhigher of the two buff-tailed bumble bee studies. J.A. 1127; see J.A. 929. FWS fails to\\n\\nexplain why this evidence is the best available when all other evidence shows that the\\n\\nRPBB is in substantial decline and should not be compared to a common and abundant bee\\n\\nspecies—much less to the higher production rate of that species. And an expert’s “wild\\n\\nguess” inspires no additional confidence in the reasonableness of FWS’s estimate. See Ctr.\\n\\nfor Biological Diversity v. Bureau of Land Mgmt., 422 F. Supp. 2d 1115, 1127 (N.D. Cal.\\n\\n2006) (“To the extent that there is any uncertainty as to what constitutes the best available\\n\\nscientific information, Congress intended ‘to give the benefit of the doubt to the species.’”\\n\\n(quoting Conner v. Burford, 848 F.2d 1441, 1454 (9th Cir. 1988))).\\n\\n At bottom, FWS has arbitrarily estimated the number of RPBB nests and bees\\n\\npresent in the high potential zone. The agency has failed to connect the dots between the\\n\\n\\n 21\\n\\fstudies of other bee species on which it relies and the likely nest density and queen\\n\\nproduction rate of the RPBB. The agency has also ignored significant evidence that\\n\\nundermines the reasonableness of its estimates—evidence that the agency itself has\\n\\ngathered—and has instead chosen to rely on one bee expert’s “wild guess.” We agree with\\n\\nPetitioners that these arbitrary calculations demonstrate the overall arbitrariness of FWS’s\\n\\nno-jeopardy finding with respect to the RPBB. See Dow AgroSciences LLC v. Nat’l Marine\\n\\nFisheries Serv., 707 F.3d 462, 473 (4th Cir. 2013) (explaining that, where agency’s data is\\n\\n“either outdated or inaccurate,” agency should, at the very least, explain why it nonetheless\\n\\nrelied on the data on which it did); Defs. of Wildlife, 762 F.3d at 396 (stating that agency\\n\\naction is arbitrary and capricious if the agency “offered an explanation for its decision that\\n\\nruns counter to the evidence before the agency”).\\n\\n 2. Inconsistencies in FWS’s Evidence\\n\\n Petitioners also argue that the 2018 BiOp’s conclusion that the ACP will not\\n\\njeopardize the RPBB is arbitrary because it is at odds with FWS’s own evidence of the\\n\\nimportance to RPBB survival of the bees likely to be killed by pipeline construction. We\\n\\nagree.\\n\\n According to the 2018 BiOp, ACP construction will impact RPBBs in two ways.\\n\\nFirst, it will indirectly reduce reproductive success because it will remove foraging\\n\\nresources that support queens and will crush worker bees. Second, it will directly impact\\n\\ncolony reproduction by crushing 8 overwintering queens and by impacting one colony,\\n\\nthereby preventing another 30 foundress queens from being produced. See J.A. 1282\\n\\n(describing impacts of ACP construction as crushing individual RPBBs, queens, or\\n\\n\\n 22\\n\\fcolonies; displacing worker bees, which could affect their ability to provide sufficient food\\n\\nresources to colony; and affecting the “quality, quantity, and timing of floral resources,\\n\\nthereby reducing survivability and reproductive success of queens”).\\n\\n As we just explained, the 2018 BiOp’s estimate of the number of RPBBs likely to\\n\\nexist in the high potential zone is arbitrary. Even assuming that estimate to be proper, the\\n\\nBiOp’s conclusion that ACP’s effects on the Bath County bee population do not jeopardize\\n\\nthe species is nonetheless arbitrary. Lost opportunities to interbreed enhance the effect of\\n\\nthe diploid male vortex, thereby leading to further population size decrease or even the loss\\n\\nof the population. See J.A. 1216 (“[A]s population size decreases, population growth rate\\n\\nalso tends to decrease and the risk of local extirpation increases.”). As FWS recognizes,\\n\\n“[l]oss of a colony or overwintering queen could reduce the health of a metapopulation due\\n\\nto lost opportunities to interbreed.” J.A. 1216. In fact, FWS has recognized that the RPBB\\n\\nis “so imperiled that every remaining population is important” for the species’ continued\\n\\nsurvival. J.A. 941; Resp. Br. 12.\\n\\n Yet, FWS concluded that the loss of not one but potentially 38 foundress queens is\\n\\n“not likely to negatively impact the fitness or survival of the population”—and\\n\\nconsequently of the species—because FWS assumes that the remaining 21 colonies\\n\\nbelieved to be in the high potential zone will not be significantly impacted by the ACP.\\n\\nJ.A. 1216–17. That is, FWS determined that the killing of more bees than have been found\\n\\nin most locations in the past two decades would not jeopardize the continued survival or\\n\\nrecovery of the RPBB.\\n\\n\\n\\n\\n 23\\n\\f The 2018 BiOp fails to square this determination with FWS’s other evidence that\\n\\n95% of the documented RPBB populations have been observed with 5 or fewer bees. 82\\n\\nFed. Reg. at 3205. While the death of a handful of bees may not be as significant to a\\n\\nhealthy bee population with tens to hundreds of thousands of bees, record evidence\\n\\nindicates that the RPBB population at issue is far from healthy. The 2018 BiOp fails to\\n\\nexplain why it is that the loss of 38 potential queens does not endanger the survival of the\\n\\nBath County RPBB population when the loss of “a colony or overwintering queen could\\n\\nreduce the health of a metapopulation.” J.A. 1216. Absent a reasoned discussion of the\\n\\nagency’s apparently contradictory positions about the species, we can only conclude that\\n\\nFWS acted arbitrarily in determining that the likely impacts of the ACP on the RPBB will\\n\\nnot jeopardize the species’ continued existence and recovery. Defs. of Wildlife, 762 F.3d\\n\\nat 396.\\n\\n 3. Status of the Species\\n\\n Petitioners also argue that the 2018 BiOp fails to account for the overall status of\\n\\nthe RPBB. In light of the precarious status of the species, we again agree with Petitioners.\\n\\n FWS’s Endangered Species Act Handbook instructs that the agency’s jeopardy\\n\\nconclusion should be made upon “reviewing the current status of” the species, in addition\\n\\nto the effects of the proposed action. J.A. 78; see Ctr. for Biological Diversity v. Salazar,\\n\\n695 F.3d 893, 913 (9th Cir. 2012) (explaining that a BiOp must address whether the\\n\\nproposed action is likely to jeopardize the continued existence of the listed species “as a\\n\\nwhole”). Here, the 2018 BiOp addresses the status of the RPBB in a short, four-sentence\\n\\nparagraph:\\n\\n\\n 24\\n\\f As described in Service (2016), the RPBB conservation needs include\\n assessing resiliency to environmental variation, perturbations\\n affecting habitat size and quality, and population size. Currently, the\\n rangewide status of the species is declining (82 FR 3186-3209). The\\n primary factors influencing the status include risks posed by\\n “pathogens, pesticides, habitat loss and degradation, small population\\n dynamics, and climate change” (82 FR 3186-3209). For a more\\n detailed account of the species description, life history, population\\n dynamics, threats, and conservation needs, refer to:\\n https://ecos.fws.gov/ecp0/profile/speciesProfile?spcode=I0WI.\\n\\nJ.A. 1172. In internal email correspondence, FWS recognized that its discussion of the\\n\\nstatus of the RPBB was “[n]ot in lock step with the handbook” and “a different read than\\n\\nthe usual multiple pages per species of species information.” J.A. 711; see J.A. 1172. 5\\n\\nNonetheless, FWS defends its BiOp because the BiOp states that it “considered the current\\n\\noverall declining status of the RPBB and the inferred condition of the species within the\\n\\naction area (environmental baseline),” J.A. 1221; incorporates FWS’s prior assessments of\\n\\nthe status of the RPBB, J.A. 1172; and contains a detailed description of baseline conditions\\n\\nin the action area, J.A. 1181–86. Resp. Br. 26. FWS also asserts that an agency action\\n\\n“can only ‘jeopardize’ a species’ existence if that agency action causes some deterioration\\n\\nin the species’ pre-action condition.” Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv.,\\n\\n524 F.3d 917, 930 (9th Cir. 2008).\\n\\n However, FWS ignores the corollary that “an agency may not take action that will\\n\\ntip a species from a state of precarious survival into a state of likely extinction.” Id. That\\n\\n\\n\\n 5\\n The author of that internal email expressed shock at the “brevity” of the 2018\\nBiOp’s status discussion. J.A. 711 (“Wow, is that a different read.”). And after\\nacknowledging that the status section was not in accordance with the agency’s handbook,\\nthe author added, “but we can get by that with my excessive wit, charm, and grace.” Id.\\nWit, charm, and grace, however, do not make for sound agency action.\\n\\n 25\\n\\fis, “even where baseline conditions already jeopardize a species, an agency may not take\\n\\naction that deepens the jeopardy by causing additional harm.” Id. FWS’s 2018 BiOp does\\n\\nnot show that the agency considered the fact that, without any human interference, the\\n\\nRPBB already faces jeopardy. See J.A. 395 (June 2016 report explaining that RPBB “may\\n\\nlack the resiliency required to sustain populations into the future, even without further\\n\\nexposure to stressors”). Although the BiOp states that the agency considered the “current\\n\\noverall declining status of the RPBB,” J.A. 1221, it omits any mention of the specifics of\\n\\nthat declining status. The BiOp says nothing of the fact that the species has declined by\\n\\nnearly 90% in the past two decades. Nor does it mention that FWS determined, only a year\\n\\nearlier, that the species is “so imperiled that every remaining population is important for\\n\\nits continued existence.” J.A. 941. Nor does it mention that FWS and agency scientists\\n\\nhave previously determined that the RPBB is “very much declining,” J.A. 764, is\\n\\n“vulnerable to extinction even without further external stressors (e.g., habitat loss,\\n\\ninsecticide exposure) acting upon the species,” J.A. 498, and is at “a high risk of\\n\\nextinction,” J.A. 507, 655.\\n\\n To the contrary, many of the assumptions that FWS makes about the RPBB suggest\\n\\nthat the agency considered the Bath County population as a healthy population. See J.A.\\n\\n1184 (assuming 30 new foundress queens produced per colony per cycle); J.A. 1185\\n\\n(relying on nest density of “common and abundant” buff-tailed bumble bee to determine\\n\\nRPBB nest density); J.A. 1215 (estimating that RPBBs in high potential zone will produce\\n\\ntotal of 660 queens each cycle). The 2018 BiOp’s failure to account for the species’s\\n\\n\\n\\n\\n 26\\n\\falready precarious state further renders its no-jeopardy determination arbitrary and subject\\n\\nto vacatur.\\n\\n 4. RPBB Recovery\\n\\n Petitioners’ final argument related to the BiOp’s no-jeopardy finding for the RPBB\\n\\nis that FWS considered only the pipeline’s effects on RPBB survival and ignored the effects\\n\\non RPBB recovery.\\n\\n A jeopardy evaluation must determine whether a proposed action “reasonably\\n\\nwould be expected, directly or indirectly, to reduce appreciably the likelihood of both the\\n\\nsurvival and recovery of a listed species.” 50 C.F.R. § 402.02 (emphasis added). FWS has\\n\\ndefined “recovery” as “improvement in the status of a listed species to the point at which\\n\\nlisting is no longer appropriate.” J.A. 81. That is, “recovery is the process by which\\n\\nspecies’ ecosystems are restored and/or threats to the species are removed so self-\\n\\nsustaining and self-regulating populations of listed species can be supported as persistent\\n\\nmembers of native biotic communities.” Id.\\n\\n “[I]t is hard to ‘draw clear-cut distinctions’ between survival and recovery.”\\n\\nCooling Water Intake Structure Coalition v. EPA, 905 F.3d 49, 76 (2d Cir. 2018) (quoting\\n\\n51 Fed. Reg. 19,926, 19,934 (June 3, 1986)); Nat’l Wildlife Fed’n, 524 F.3d at 932 n.11.\\n\\nAnd when evaluating a programmatic-level BiOp, other courts have not required “an\\n\\nindependent analysis of recovery.” Cooling Water, 905 F.3d at 76. Nonetheless, our sister\\n\\ncircuits have held that, in the context of “site-specific” BiOps like the BiOp at issue in this\\n\\ncase, recovery impacts, “like survival impacts, should be assessed.” Id.; see also Nat’l\\n\\nWildlife Fed’n, 524 F.3d at 932 (determining that agency acted arbitrarily when it failed to\\n\\n\\n 27\\n\\f“analyze effects on recovery as well as effects on survival” in site-specific BiOp). We\\n\\nagree with those courts. Under the plain language of its own regulations, FWS is required\\n\\nto assess “both the survival and recovery of a listed species.” 50 C.F.R. § 402.02 (emphasis\\n\\nadded). The agency is not permitted to resolve the difficulty of distinguishing between\\n\\nsurvival and recovery “by ignoring recovery needs and focusing entirely on survival.”\\n\\nNat’l Wildlife Fed’n, 524 F.3d at 932 n.11.\\n\\n Here, the 2018 BiOp makes no mention of the ACP’s impacts on RPBB recovery.\\n\\nThe BiOp explains the reasons for reproduction rate decline in the species and the likely\\n\\nimpact of pipeline construction on that decline. See J.A. 1215–16. It says nothing,\\n\\nhowever, about recovery, nor does it explain why the no-jeopardy conclusion is reasonable\\n\\ngiven the acknowledged mortality, injury, and reduced reproduction that pipeline\\n\\nconstruction will cause to the RPBB—effects that FWS’s Recovery Outline for the RPBB\\n\\nseeks to avoid. U.S. Fish and Wildlife Serv., Recovery Outline, at 7 (Sept. 5, 2018)\\n\\n[hereinafter Recovery Outline]. 6 While a separate and distinct section analyzing the\\n\\npipeline’s impact on RPBB recovery was not necessary, FWS was required to address the\\n\\n\\n 6\\n The Endangered Species Act requires the Secretary of the Interior to “develop and\\nimplement plans . . . for the conservation and survival of endangered species and threatened\\nspecies . . . , unless he finds that such a plan will not promote the conservation of the\\nspecies.” 16 U.S.C. § 1533(f)(1). Because the RPBB was listed as an endangered species\\nin January 2017, a recovery plan has not yet been developed for the species. Resp. Br. 28.\\nFWS, however, has prepared a Recovery Outline for the RPBB. The Recovery Outline,\\navailable on FWS’s website, is cited in the 2018 BiOp as a source of additional information\\nabout the status of the RPBB. J.A. 1172. The Recovery Outline includes an Interim\\nRecovery Program, which provides that “[i]mpacts to [RPBB] to avoid are those that may\\n(1) result in mortality or injury to rusty patched bumble bee; (2) reduce reproduction or\\nrecruitment of young into populations; (3) increase stress to remaining individuals in the\\nwild; or (4) alter habitat such that survival or reproduction is reduced.” Recovery Outline\\nat 7.\\n\\n 28\\n\\fimpacts of pipeline construction on the species’ recovery. See Rock Creek Alliance v. U.S.\\n\\nFish and Wildlife Serv., 663 F.3d 439, 443 (9th Cir. 2011) (upholding BiOp when it failed\\n\\nto “address the bull trout recovery issue in separate, distinct sections” but nonetheless\\n\\ndiscussed “the rate of recovery” of the species throughout the BiOp). Because the agency\\n\\n“entirely failed to consider an important aspect of the problem,” Sierra Club, 899 F.3d at\\n\\n293, the omission of any discussion of the impact on the species’s recovery constitutes yet\\n\\nanother ground on which we find the 2018 BiOp’s no-jeopardy determination arbitrary.\\n\\n * * *\\n\\n In sum, the 2018 BiOp’s conclusion that the ACP will not jeopardize the RPBB in\\n\\nBath County, Virginia, is arbitrary and capricious because it runs counter to available\\n\\nevidence, relies on data without providing a meaningful basis for that reliance, fails to\\n\\nconsider the species’s status as a whole, and fails to consider the pipeline’s impacts on\\n\\nRPBB recovery. See Defs. of Wildlife, 762 F.3d at 396.\\n\\n B. Clubshell\\n\\n Turning to the 2018 BiOp’s evaluation of pipeline impacts on the clubshell, we find\\n\\nthat FWS arbitrarily concluded that the ACP will not jeopardize the continued existence of\\n\\nthis species.\\n\\n The clubshell, a freshwater mussel, lives in “clean, stable, coarse sand and gravel\\n\\nruns” in rivers and streams. J.A. 138. It typically burrows entirely beneath the riverbed to\\n\\na depth of 2 to 4 inches. In fact, more than 70% of a stream’s clubshell population “may\\n\\nbe hidden below the substrate surface.” Id. Because of this, FWS has explained that\\n\\n“qualitative population estimates must take into account undetected individuals” and has\\n\\n\\n 29\\n\\fwarned that low density population estimates “may have large margins of error due to\\n\\nundetected mussels.” J.A. 139.\\n\\n When the waterway in which clubshell live undergoes a period of heavy\\n\\nsedimentation, the clubshell close their valves to avoid irritation and clogging of their\\n\\nfeeding structures. If excessive sediment remains suspended in the waterway, the\\n\\nclubshell’s gills may become overwhelmed, leading the clubshell to reduce its intake of\\n\\nfood and water, or to completely close altogether. Clubshell also rely on oxygen that is\\n\\ndissolved in the water that percolates through the riverbed. Excessive sedimentation\\n\\nreduces the level of oxygen that is dissolved in the water and can block water from\\n\\npercolating through the streambed, causing resident clubshell to suffocate.\\n\\n The clubshell was listed as an endangered species in 1993. There remain only 13\\n\\nknown populations of clubshell occupying 21 streams. The clubshell’s numbers total more\\n\\nthan 1 million, but a majority of that population lives in 1 river, and only 7 of the 13\\n\\npopulations show evidence of reproductive success.\\n\\n In West Virginia, the clubshell occupies three streams: the Monongahela, Kanawha,\\n\\nand Ohio Rivers. The Monongahela River’s sole remaining clubshell population lives in\\n\\nHackers Creek. The West Virginia Division of Natural Resources (“WVDNR”) has\\n\\nmonitored the Hackers Creek population on a long-term basis, conducting monitoring\\n\\nsurveys every 5 years. In 2004, a total of 38 clubshell were observed at the monitoring\\n\\nsite. J.A. 1179. An additional 18 clubshell found further downstream were relocated to\\n\\nthe monitoring site because the monitoring site was safer. This brought the total number\\n\\nof clubshell at the monitoring site to 56. In 2009, only 29 clubshell were observed at the\\n\\n\\n 30\\n\\fmonitoring site. And in 2014, 19 were documented. Id. During those surveys, no juvenile\\n\\nor “gravid” (pregnant) clubshell were observed.\\n\\n WVDNR and FWS have had “long-standing concerns about the status of the\\n\\nHackers Creek population.” J.A. 1011. The two agencies began meeting in early 2017 to\\n\\ndiscuss necessary recovery actions for the creek. As a product of those discussions, FWS\\n\\nissued a recovery permit under section 10(a)(1) of the ESA to White Sulphur Springs\\n\\nNational Fish Hatchery. 7 That permit allowed White Sulphur Springs to collect, hold, and\\n\\npropagate clubshell from Hackers Creek “to address ongoing declines in the population\\n\\nand prevent loss of the population’s genetic material.” J.A. 1179. It is unclear from the\\n\\nrecord whether, and to what extent, White Sulphur Springs has engaged in such recovery\\n\\nwork.\\n\\n As currently projected, 6.4 miles of pipeline construction right-of-way and 11.9\\n\\nmiles of access roads will exist in the upstream drainage area of Hackers Creek. J.A. 1180.\\n\\nSix tributaries of Hackers Creek will also be crossed by the pipeline. ACP construction\\n\\nwill therefore affect the “entire length” of Hackers Creek. J.A. 1199. It will lead to\\n\\nincreased sedimentation and turbidity in the creek, which will lead in turn to impaired\\n\\nfeeding for the clubshell population there. FWS expects this to result in depressed rates of\\n\\ngrowth, reproduction, and recruitment as Hackers Creek clubshell experience reduced\\n\\nphysiological function, suffocation, and even death. ACP construction also may\\n\\n\\n\\n 7\\n Section 10(a)(1) of the ESA provides in relevant part that “[t]he Secretary may\\npermit, under such terms and conditions as he shall prescribe . . . any act otherwise\\nprohibited by section 1538 of this title for scientific purposes or to enhance the propagation\\nor survival of the affected species.” 16 U.S.C. § 1539(a)(1)(A).\\n\\n 31\\n\\f“permanently alter and degrade” the Hackers Creek habitat to the point where it will no\\n\\nlonger be “favorable” for clubshell. Id.\\n\\n Because of the extent of these effects to Hackers Creek, FWS’s 2017 BiOp required\\n\\nAtlantic to salvage and relocate clubshell prior to pipeline construction. In April 2018,\\n\\nAtlantic obtained a section 10(a)(1) permit to salvage the population. The approved\\n\\nsalvage plan provided that the Hackers Creek clubshell population would be captured and\\n\\ntransported to White Sulphur Springs, where the clubshell would be “held and propagated”\\n\\nfor a 2-year period before reintroduction into the Monongahela River. J.A. 1180. Three\\n\\nindependent salvage efforts were scheduled to take place. The first two were conducted in\\n\\nMay and July 2018, during which 56 live clubshell and 12 live clubshell were collected,\\n\\nrespectively. The third salvage effort has not yet been conducted.\\n\\n Two months after the salvage efforts, FWS issued its 2018 BiOp, concluding that\\n\\npipeline construction will not jeopardize the clubshell species. In discussing the baseline\\n\\nconditions in Hackers Creek, the 2018 BiOp explains that the creek currently suffers from\\n\\na high sediment load due to agricultural practices, oil and gas activities, and river bank\\n\\ninstability. Despite the current sedimentation that threatens the Hackers Creek clubshell,\\n\\nFWS concluded that the additional sedimentation from the proposed pipeline will both\\n\\naffect those clubshell that are not salvaged and “degrade/alter clubshell habitat.” J.A. 1199.\\n\\nEven though strong water flows, such as those caused by storms, are expected to flush\\n\\n“some” of the additional sediment downstream of the clubshell population, “the quality of\\n\\nthe habitat will have decreased due to sediment remaining within interstitial spaces in the\\n\\n\\n\\n\\n 32\\n\\fsubstrate.” J.A. 1200. Therefore, as a result of ACP construction, the Hackers Creek\\n\\npopulation is expected to “remain below pre-construction numbers.” J.A. 1214.\\n\\n Notwithstanding these effects, FWS concluded that adverse impacts to the entirety\\n\\nof the Hackers Creek population will not prevent FWS from meeting the Recovery Criteria\\n\\nfor the species as a whole because the Hackers Creek population shows no “evidence of\\n\\nreproductive success.” J.A. 1214. The Recovery Criteria for the clubshell require that\\n\\nviable clubshell populations be established in 10 separate drainages. “Viable” populations\\n\\nare those that “consist[ ] of sufficient numbers of reproducing individuals to maintain a\\n\\nstable or increasing population.” J.A. 38. Eight recovery drainages (rivers) have been\\n\\ndesignated, and the other two have yet to be designated. The 2018 BiOp concluded that\\n\\nthe Hackers Creek population was unlikely to be designated as one of the additional two\\n\\ndrainages because its population is not reproducing. And, according to the 2018 BiOp, the\\n\\nfact that 68 clubshell were salvaged in 2018 while only 19 were documented in 2014 did\\n\\nnot mean that the Hackers Creek population had increased; “the level of effort and survey\\n\\narea for the salvage effort differs from that of the long-term monitoring efforts,” thus “the\\n\\nresults are not comparable.” J.A. 1180.\\n\\n There are several flaws with the reasoning behind FWS’s no-jeopardy conclusion.\\n\\nFirst, the premise that only those members of an endangered species that can naturally\\n\\ncontribute to the species’s recovery should be protected is unsupported by legal authority.\\n\\nThe Ninth Circuit has held that “except in exceptional circumstances, [a project’s] injury\\n\\nto recovery alone would not warrant [a jeopardy finding].” Nat’l Wildlife Fed’n, 524 F.3d\\n\\nat 932 (second alteration in original) (quoting 51 Fed. Reg. at 19,934). However, FWS\\n\\n\\n 33\\n\\fpoints to no legal authority to support the inverse of that holding—that a lack of injury to\\n\\nrecovery alone warrants a no-jeopardy finding. While “they are not necessarily mutually\\n\\nexclusive, recovery and jeopardy are two distinct concepts.” Cascadia Wildlands v.\\n\\nThrailkill, 806 F.3d 1234, 1244 (9th Cir. 2015). Additionally, as we explained earlier, the\\n\\nESA requires that FWS determine whether a proposed action “reasonably would be\\n\\nexpected, directly or indirectly, to reduce appreciably the likelihood of both the survival\\n\\nand recovery of a listed species.” 50 C.F.R. § 402.02 (emphasis added). Like jeopardy\\n\\nand recovery, the concepts of survival and recovery are also distinct and must each be\\n\\nevaluated.\\n\\n To be sure, the ESA is aimed at promoting self-sustaining populations. See Trout\\n\\nUnlimited v. Lohn, 559 F.3d 946, 957 (9th Cir. 2009); H.R. Rep. No. 95–1625 (1978), at\\n\\n5, reprinted in 1978 U.S.C.C.A.N. 9453, 9455. However, the ESA is not focused\\n\\nexclusively on protecting those populations that currently are naturally reproductive; it\\n\\ncontemplates that artificial propagation may be necessary to “bring any endangered species\\n\\nor threatened species to the point at which the measures provided pursuant to [the ESA]\\n\\nare no longer necessary.” 16 U.S.C. § 1532(3). Therefore, a determination that a\\n\\npopulation’s current nonreproductive status is sufficient grounds to conclude that a listed\\n\\nspecies will not be jeopardized is not in line with the law.\\n\\n Indeed, FWS’s own regulations suggest that a specific population’s impact on the\\n\\nspecies’s recovery is not dispositive of a jeopardy analysis. Those regulations provide that\\n\\na proposed action jeopardizes the species at issue if it is likely to reduce “the reproduction,\\n\\nnumbers, or distribution of that species.” 50 C.F.R. § 402.02 (emphasis added). The\\n\\n\\n 34\\n\\fability to reproduce is only one of three things that FWS considers. And the 2018 BiOp\\n\\nindicates that pipeline construction will reduce clubshell numbers. The anticipated changes\\n\\nin habitat, “resulting in sublethal effects on growth and reproduction or starvation with\\n\\nlong-term exposure,” will affect “a majority of individual mussels,” and the Hackers Creek\\n\\npopulation will remain “below pre-construction numbers” even after higher river flows\\n\\nclear away some of the additional sedimentation from the pipeline. J.A. 1213–14\\n\\n(emphasis added). The BiOp does not explain why the reduction in numbers itself poses\\n\\nno jeopardy to the species.\\n\\n A second problem with the 2018 BiOp’s no-jeopardy determination is that its sole\\n\\nfocus on reproduction does not accord with FWS’s own Recovery Criteria for the clubshell.\\n\\nThe designation of recovery drainages in the Recovery Criteria did not depend on the\\n\\nnatural reproductive abilities of the clubshell located in those rivers. At the time the\\n\\nRecovery Criteria were issued in 1994, FWS’s Recovery Plan indicated that it was\\n\\nunknown if the population in Green River (one of the designated drainages) was\\n\\nreproducing. J.A. 24. The Recovery Plan also indicated that “many individuals” in the\\n\\nEast Fork West Branch of the St. Joseph River (another designated drainage) were adults\\n\\n“in excess of 12 years old.” Id. And “[m]ore research” was needed to determine the status\\n\\nof the clubshell population in Elk River (another designated drainage). Id. In FWS’s 2008\\n\\nclubshell review, the agency noted that reproducing populations of clubshell had been\\n\\ndocumented in 7 of the 8 listed waterways; Fish Creek did not show evidence of\\n\\nreproduction, yet it continues to be a designated drainage crucial for the species recovery.\\n\\n\\n\\n\\n 35\\n\\fJ.A. 137–38. 8 The 2018 BiOp fails to explain why those populations, with no documented\\n\\nnatural reproduction, were nonetheless designated as crucial to the recovery of the clubshell\\n\\nbut the Hackers Creek population would not be.\\n\\n Perhaps more troubling, however, is that the Recovery Criteria were issued in 1994,\\n\\n25 years ago, and by FWS’s own admission, the “recovery plan . . . is out of date.” J.A.\\n\\n135. FWS’s 2008 5-year review of the clubshell noted that the agency could not rely on\\n\\ndata in the outdated recovery plan and, therefore, relied on data provided by other sources.\\n\\nId. That 5-year review also acknowledged that the Recovery Criteria “are vague” in that,\\n\\namong other things, “[p]opulation viability is not defined” and population and habitat\\n\\nprotection are “not well-defined.” J.A. 138. Yet, FWS continues to rely on the 25-year-\\n\\nold Recovery Criteria, based on concededly outdated data, and relied on that Criteria and\\n\\nthe 1993 data underlying the Criteria in its no-jeopardy determination here. See J.A. 1181\\n\\n(citing to 1993 survey data as evidence of clubshell’s likely presence in upstream area);\\n\\nJ.A. 1214 (relying on 1994 Recovery Criteria in determining that ACP construction will\\n\\nnot jeopardize the Hackers Creek clubshell).\\n\\n The agency’s reliance on out-of-date information also calls into question the\\n\\nreasonableness of FWS’s estimate of the number of clubshell present in Hackers Creek and\\n\\nlikely to be impacted by the ACP. It is true that FWS updated its estimate of the area\\n\\noccupied by the Hackers Creek clubshell based on data gathered during the 2018 salvage\\n\\nefforts. And yet, it continues to rely on the 1993 survey data to conclude that clubshell are\\n\\n\\n 8\\n When Fisk Creek was designated as a recovery drainage in 1994, even “[l]iving”\\nclubshell in the creek were “rare.” J.A. 24. Yet, that creek was deemed necessary to\\nachieve recovery of the species.\\n\\n 36\\n\\fnot likely to be present further upstream. J.A. 1181. The BiOp reaches this conclusion\\n\\nwhile acknowledging that the habitat “improves upstream” of the salvage area and without\\n\\nexplaining why the 1993 survey data is still reliable. Id. This is particularly problematic\\n\\nbecause the 1993 survey data indicated that “no mussels of any species were found in the\\n\\nupstream area,” but in more recent conversations with WVDNR about the upstream habitat,\\n\\nFWS was simply informed that the upstream beds were less diverse—not that they were\\n\\nnon-existent, as the 1993 survey found. Id. The 2018 BiOp fails to explain why the 1993\\n\\nsurvey remains the best available information on which to base estimates of the location of\\n\\nthe clubshell population. 9\\n\\n Nor does the 2018 BiOp sufficiently explain the discrepancies between the number\\n\\nof clubshell observed during the 5-year monitoring surveys and the number recovered\\n\\nduring the 2018 salvage efforts. The BiOp notes that the “level of effort and survey area\\n\\nfor the salvage effort differs from that of the long-term monitoring efforts,” J.A. 1180, but\\n\\nfails to elaborate. The BiOp provides no information regarding the manner in which either\\n\\nthe monitoring surveys or the salvage efforts were conducted. While the higher number of\\n\\nclubshell recovered during the salvage efforts is not necessarily indicative of reproductive\\n\\nsuccess, as Petitioners argue, the higher number—more than triple that of the most recent\\n\\nmonitoring survey—does cause us to question whether the monitoring surveys are the best\\n\\navailable information regarding the Hackers Creek population. This is particularly the case\\n\\n\\n 9\\n As a result of the salvage effort, FWS expanded the zone in which it believes\\nclubshell to exist to 7.6 kilometers upstream, which is approximately 4.72 miles. J.A. 1181.\\nA 2015 survey of the area 3.2 miles upstream had revealed no clubshell. J.A. 1179.\\nTherefore, the salvage effort uncovered clubshell in that upstream area that previously had\\nnot been documented.\\n\\n 37\\n\\fbecause, by its nature, the clubshell is difficult to detect: 70% of a clubshell population\\n\\nmay be burrowed; “[r]eproducing clubshell populations are often hard to detect when\\n\\ndensities are very low or surveys are single-day, catch-per-unit efforts”; “sparsely\\n\\ndistributed juveniles used to document successful reproduction are likely even more\\n\\ndifficult to detect”; and clubshell are less susceptible to capture at times outside of their\\n\\ngravid period. J.A. 139 (2008 clubshell review); J.A. 931.\\n\\n In light of the apparent conflicts of more recent information with the 1993 survey,\\n\\nthe much higher number of clubshell detected in 2018 than in previous surveys, and FWS’s\\n\\nown admission that the recovery plan on which it relies is outdated, FWS was required to\\n\\n“at the very least, . . . explain why it nevertheless chose to rely on the older data.” Dow\\n\\nAgroSciences LLC, 707 F.3d at 473. As a reviewing court, “we should not silently rubber\\n\\nstamp agency action that is arbitrary and capricious in its reliance on old data without\\n\\nmeaningful comment on the significance of more current compiled data.” Id. (quoting\\n\\nSierra Club v. EPA, 671 F.3d 955, 968 (9th Cir. 2012)).\\n\\n For the above reasons, we conclude that the 2018 BiOp’s finding that the clubshell’s\\n\\ncontinued survival will not be jeopardized by ACP construction is not in accordance with\\n\\nthe law and fails to consider important aspects of the issue before the agency. Alaska Dep’t\\n\\nof Envtl. Conservation, 540 U.S. at 496–97; Defs. of Wildlife, 762 F.3d at 396.\\n\\n C. Indiana Bat\\n\\n Petitioners also challenge FWS’s take limit for the Ibat. For the reasons that follow,\\n\\nwe agree that the take limit fails to satisfy the criteria for a proper surrogate habitat.\\n\\n\\n\\n\\n 38\\n\\f The Ibat is an endangered migratory bat. Sierra Club, 899 F.3d at 278. Between\\n\\n2015 and 2017, the number of Ibats in Virginia and West Virginia declined. In Virginia,\\n\\nthe population declined 8.4%, and only 425 Ibats were estimated to live in the state in 2017.\\n\\nIn West Virginia, the decline was more severe: the population decreased by 54.7% to a\\n\\ntotal of 1,076 Ibats. J.A. 1189.\\n\\n The ACP action area will cross through the Indiana Bat Appalachian Mountain\\n\\nRecovery Unit in both states. Four categories of Ibat habitat will be crossed: (1) suitable\\n\\nunoccupied summer habitat, suitable for Ibat occupation but in which Ibats have not been\\n\\ndetected during the summer; (2) known use summer habitat, which includes roosting trees\\n\\nand is likely to contain a maternity colony of bats; (3) unknown use spring staging/fall\\n\\nswarming habitat, which is unsurveyed habitat within 5 miles of habitat suitable for winter\\n\\nhibernation (“hibernacula”); and (4) known use spring staging/fall swarming habitat, which\\n\\nis habitat within a 5-mile radius of known hibernacula. At issue in this appeal is the\\n\\npipeline’s effect on Ibats in the first category of habitat, the suitable unoccupied summer\\n\\nhabitat.\\n\\n When FWS issued its 2017 BiOp, a majority of the scheduled surveys for Ibat\\n\\npresence had been completed. While 4 surveys were pending in Virginia at the time, other\\n\\nfollow-up surveys in Virginia had been conducted and surveys in West Virginia were\\n\\ncomplete. The completed surveys were negative for Ibat presence in the unoccupied\\n\\nsummer habitat. J.A. 843. 10 Yet, as the 2017 BiOp explained, FWS anticipated that tree\\n\\n\\n\\n 10\\n Ibats were acoustically detected at 17 sites along the proposed pipeline route, but\\nfollow-up mist-net surveys did not capture any Ibats. J.A. 843, 1190.\\n\\n 39\\n\\fclearing on 3,275 acres of suitable unoccupied summer habitat would indirectly impact the\\n\\nIbat, particularly those Ibats “searching for potential roosting sites and those traveling\\n\\nthrough the area.” J.A. 854. This is because Ibats do not travel through zones that do not\\n\\nhave tree cover and would, therefore, not travel through unoccupied summer habitat once\\n\\nthat habitat was cleared. FWS anticipated that the greatest effects of tree clearing in this\\n\\nhabitat would be felt by the “pregnant females that expend additional energy to seek\\n\\nalternate travel corridors as a result of tree clearing.” Id. As a result of the expended\\n\\nenergy to seek alternative travel routes, pregnant Ibats could give birth to smaller pups,\\n\\n“which could decrease pup survival.” Id.\\n\\n In its 2017 ITS, which we vacated, FWS relied entirely on a habitat surrogate, after\\n\\nit improperly failed to explain why using a numeric take limit was impractical. Sierra\\n\\nClub, 899 F.3d at 279–80. Rather than use a numeric limit, the agency used a multiplier to\\n\\ndetermine that Atlantic could take half of the total suitable unoccupied summer habitat.\\n\\nId. 11 FWS did not explain the basis for that multiplier. We determined that this take limit\\n\\nlacked, among other things, a proper causal link between the Ibat and the “geographic\\n\\nbounds of the take limit.” Id. at 278–80. As we explained, “FWS knew that the pipeline\\n\\nwill directly affect 3,275.382 acres of suitable unoccupied summer habitat . . . [y]et,\\n\\nwithout any explanation, the agency set the take limit for [this habitat] at half of the[ ]\\n\\nacreage[ ]. In other words, FWS set the take limit at half the affected bat habitat that it\\n\\nknows the pipeline is going to affect.” Id. at 279. Because FWS knew that the pipeline\\n\\n\\n 11\\n The 2017 ITS also set take limits for the other three categories of Ibat habitat that\\nwould be impacted by pipeline construction. See Sierra Club, 899 F.3d at 279. The take\\nlimits of those other three categories of Ibat habitat are not at issue in this appeal.\\n\\n 40\\n\\fwould exceed the geographic bounds placed on the take, the take limit was arbitrary. Id.\\n\\nat 280.\\n\\n In an apparent attempt to correct the mistakes that we identified with the 2017 ITS,\\n\\nFWS has now set both a numeric take limit (2 Ibats) as well as an acreage limit (as a habitat\\n\\nsurrogate). As the 2018 BiOp explains, “there are challenges associated with measuring\\n\\ntake in terms of individuals.” J.A. 1230. Thus, FWS chose to use both limits, such that a\\n\\ntaking of more than 2 Ibats or more than the acreage limit will constitute an unlawful\\n\\ntaking.\\n\\n Petitioners do not challenge the numeric take limit. Rather, they challenge the\\n\\nhabitat surrogate. An ITS must “[s]pecif[y] the impact, i.e., the amount or extent, of such\\n\\nincidental taking on the species.” 50 C.F.R. § 402.14(i)(1)(i). Once FWS has established\\n\\nthe amount of the take in the ITS, a project proponent may not lawfully take any members\\n\\nof the listed species above and beyond that amount without further authorization from the\\n\\nagency. Although numeric take limits are preferred, FWS may instead employ a habitat\\n\\nsurrogate to establish a take limit when setting a numeric take limit is impractical. Id. For\\n\\na habitat surrogate to be proper, FWS regulations require three elements: (1) “FWS must\\n\\ninclude a description of ‘the causal link between the surrogate and take of the listed\\n\\nspecies’”; (2) “FWS must explain ‘why it is not practical to express the amount or extent\\n\\nof anticipated take or to monitor take-related impacts in terms of individuals of the listed\\n\\nspecies’”; and (3) “FWS must set ‘a clear standard for determining when the level of\\n\\nanticipated take has been exceeded.’” Sierra Club, 899 F.3d at 271 (quoting 50 C.F.R.\\n\\n§ 402.14(i)(1)(i)).\\n\\n\\n 41\\n\\f FWS abandoned the use of multipliers in establishing a habitat surrogate in its 2018\\n\\nITS. Instead, the agency entirely eliminated the 3,275 acres of unoccupied summer habitat\\n\\nfrom the habitat surrogate, which now consists only of:\\n\\n • 137.5 acres of known use summer habitat in West Virginia;\\n\\n • 178.1 acres of unknown use spring staging/fall swarming habitat in West\\n Virginia; and\\n\\n • 703.0 acres of known use spring staging/fall swarming habitat, which\\n consists of 283 acres in Virginia and 420 acres in West Virginia.\\n\\nJ.A. 1232.\\n\\n Explaining the absence of suitable unoccupied summer habitat from its calculus,\\n\\nFWS now takes the position that “[r]emoving large areas of trees when Ibat surveys were\\n\\nnegative, i.e., in unoccupied summer habitat, is presumed not to result in indirect effects to\\n\\nIbats because survey results indicate they are not currently occupying the area.” J.A. 1190.\\n\\nAs FWS explains, “negative survey results are considered probable absence for Ibats and\\n\\nthe correct determination for project effects in these instances is ‘not likely to adversely\\n\\naffect’ the Ibat regardless of the amount of acres being cleared. This interpretation of Ibat\\n\\nnegative survey results is used by other field offices and regions of [FWS].” Id. Whereas\\n\\nthe 2017 BiOp indicated that a “majority” of the impacts to Ibats would be caused by the\\n\\nclearing of the suitable unoccupied summer habitat, J.A. 920, the 2018 BiOp concludes\\n\\nthat no adverse impacts will result.\\n\\n The 2018 BiOp offers no cogent explanation for this about-face. It makes no\\n\\nmention of the 2017 BiOp’s findings that clearing this habitat will have several anticipated\\n\\nindirect impacts, including the expenditure of additional travel energy by pregnant females,\\n\\n\\n\\n 42\\n\\fwhich could lead to decreased pup survival, and increased risk of predation, leading to\\n\\ninjury or death. J.A. 920. Instead, it relies on the fact that completed Ibat surveys were\\n\\nnegative for Ibat presence in the unoccupied summer habitat; because those surveys were\\n\\nnegative, the BiOp “presume[s]” that clearing trees in that habitat will not “result in indirect\\n\\neffects to Ibats.” J.A. 1190. But a majority of those surveys had been completed at the\\n\\ntime the 2017 BiOp and ITS were issued. Therefore, the conclusions of the 2017 BiOp\\n\\nwere made with the benefit of most of the surveys, surveys that showed no Ibat presence\\n\\nat the time. The 4 Virginia surveys that had not been completed at the time have produced\\n\\nno new evidence; the completed surveys merely confirmed what FWS already knew in\\n\\n2017—that Ibats were not detected in the unoccupied summer habitat. Thus, the newly\\n\\ncompleted surveys do not explain the complete change in position that FWS now takes.\\n\\n The 2018 BiOp’s reliance on the practices of other field offices does not rescue its\\n\\narbitrary change in view. The BiOp states that the agency’s new position—that negative\\n\\nIbat surveys support a presumption of no indirect effects to Ibats in the unoccupied\\n\\nhabitat— is in line with that taken by other unnamed field offices of the agency. However,\\n\\nthis particular field office already determined that, for this particular project, clearing over\\n\\n3,000 acres of suitable unoccupied summer habitat will cause “the majority of effects to\\n\\nIbats from tree clearing.” J.A. 920 (2017 BiOp). The 2018 BiOp and ITS fail to explain\\n\\nwhy the practice of other field offices is now dispositive and renders this field office’s\\n\\nprevious findings erroneous.\\n\\n Moreover, the 2018 BiOp’s conclusion is in conflict with the evidence before the\\n\\nagency. As FWS notes in the BiOp, two of the “primary factors” that influence the Ibat’s\\n\\n\\n 43\\n\\fstatus are “habitat loss and degradation” and “forest fragmentation.” J.A. 1172. In light\\n\\nof those known primary threats to the Ibat, it takes little more than common sense to deem\\n\\narbitrary FWS’s conclusion that clearing unoccupied yet suitable forest habitat, “regardless\\n\\nof the amount of acres being cleared,” J.A. 1190, will have no impacts on the species.\\n\\n While FWS is “entitled to change its view[,] . . . it is obligated to explain its reasons\\n\\nfor doing so.” State Farm, 463 U.S. at 56. Because FWS has abandoned without a cogent\\n\\nexplanation its earlier determination that clearing thousands of acres of suitable unoccupied\\n\\nsummer Ibat habitat will indirectly impact the Ibat and ignores evidence of what the agency\\n\\npreviously considered a substantial cause of take, the 2018 ITS fails to articulate a “causal\\n\\nlink between the surrogate and take” of the Ibat. 50 C.F.R. § 402.14(i)(1)(i); see Sierra\\n\\nClub, 899 F.3d at 271 (“A ‘causal link’ is an ‘articulated, rational connection’ between the\\n\\nactivity and the taking of the species.” (quoting Ariz. Cattle Growers’ Ass’n v. U.S. Fish\\n\\nand Wildlife, Bureau of Land Mgmt., 273 F.3d 1229, 1250–51 (9th Cir. 2001))). And\\n\\nbecause FWS acknowledges that a numeric take limit will not sufficiently account for the\\n\\nincidental taking of Ibats, the 2018 ITS fails to establish a “clear standard for determining\\n\\nwhen the level of anticipated take has been exceeded.” 50 C.F.R. § 402.14(i)(1)(i). Thus,\\n\\nFWS has improperly failed to specify the impact of such incidental taking on the Ibat. Id.\\n\\n D. Madison Cave Isopod\\n\\n Petitioners’ final challenge to FWS’s 2018 action is to the take limits imposed for\\n\\nthe MCI. The MCI is “a threatened subterranean freshwater crustacean about a half-inch\\n\\nin size.” Sierra Club, 899 F.3d at 277. The MCI lives in underground phreatic karst waters\\n\\n\\n\\n\\n 44\\n\\fin the Shenandoah Valley in Virginia. It was listed as a threatened species in November\\n\\n1982.\\n\\n According to both the 2017 and 2018 BiOps, ACP construction rights-of-way,\\n\\nadditional temporary work space, and access roads will impact 25 miles of MCI potential\\n\\nhabitat. Pipeline construction will crush or smother these crustaceans. Construction will\\n\\nalso lead to a temporary reduction in feeding or reproduction and will cause sediment to\\n\\nenter the subsurface habitat, rendering that habitat temporarily or permanently unsuitable\\n\\nfor MCI use.\\n\\n Because of the MCI’s small size, subterranean habitat, and a lack of effective survey\\n\\nprotocols, FWS cannot practically estimate the number of MCI that may be taken by ACP\\n\\nconstruction. Therefore, FWS relies on a habitat surrogate to establish take limits. We\\n\\npreviously concluded that the agency’s reliance on a habitat surrogate is proper because\\n\\n“FWS has shown that a numeric take limit is not practical here.” Sierra Club, 899 F.3d at\\n\\n278. At issue, however, is the soundness of that habitat surrogate. Reviewing the 2018\\n\\nhabitat surrogate, we conclude that FWS again has established an arbitrary take limit for\\n\\nthis species.\\n\\n A comparison of the agency’s 2017 and 2018 decisions is helpful. The 2017 BiOp\\n\\nfound that a total of 1,974 acres of potential MCI habitat in Augusta County, Virginia, will\\n\\nbe affected by ACP construction. Although there have been no documented MCI\\n\\n“localities” in the proposed construction right-of-way or additional temporary workspace,\\n\\nFWS assumed MCI presence at Cochran’s Cave in Augusta County. J.A. 865. That cave\\n\\nbisects the construction right-of-way and temporary workspace across 11.2 acres. That\\n\\n\\n 45\\n\\f11.2-acre area will be displaced during pipeline construction. Due to the karst terrain, FWS\\n\\ndetermined that the ground-disturbing activities within this 11.2-acre zone will have ripple\\n\\neffects extending out half a mile, such that MCI will be taken in a total of 896.7 acres.\\n\\nAccording to the 2017 ITS, pipeline construction will kill a “[s]mall percent of” MCI in\\n\\nthe 11.2-acre area and harm or harass “[a]ll individuals present within the 896.7 acres.”\\n\\nJ.A. 872–73. The ITS said nothing about take of MCI within the remainder of the 1,974\\n\\nacres of MCI habitat impacted by the ACP.\\n\\n Like the 2017 BiOp, the 2018 BiOp indicates that pipeline construction will impact\\n\\na total of 1,974 acres of potential MCI habitat. J.A. 1228. The 2018 BiOp also assumes\\n\\nMCI presence at Cochran’s Cave. J.A. 1188. The 2018 BiOp again explains that pipeline\\n\\nconstruction will displace 11.2 acres at Cochran’s Cave and that construction materials and\\n\\nsediment released onto the surface or subsurface karst terrain due to the ground disturbing\\n\\nactivities in that 11.2-acre zone may reach MCI up to half a mile away. Therefore, FWS\\n\\nanticipates that pipeline construction will impact MCI in the 11.2 acres as well as across\\n\\nan additional 885.5 acres (the 896.7-acre zone used as a habitat surrogate in the 2017 ITS).\\n\\nId.\\n\\n This time, however, FWS has chosen to use as a habitat surrogate only the 11.2\\n\\nacres that will be directly displaced by construction. The 2018 ITS explains that only the\\n\\n11.2 acres are used as a habitat surrogate “because that is the area that [FWS] can actually\\n\\nmeasure and monitor.” J.A. 1228. The BiOp elaborates on the take limit; it explains that\\n\\nthe effects on the MCI that are anticipated in the additional 885.5 acres are the result of\\n\\nground-disturbing activities performed within the 11.2-acre zone, and a habitat surrogate\\n\\n\\n 46\\n\\fof ground-disturbing activities within that 11.2-acre zone will therefore account for the\\n\\ntake of MCI within the entire 896.7-acre area. J.A. 1202. Like its predecessor, the 2018\\n\\nBiOp and ITS say nothing of the potential take of MCI within the remainder of the 1,974\\n\\nacres of potential species habitat.\\n\\n In our review of the 2017 ITS, we concluded that FWS arbitrarily limited the habitat\\n\\nsurrogate to the 896.7 acres near Cochran’s Cave. Sierra Club, 899 F.3d at 278. Because\\n\\nFWS provided no explanation for limiting the habitat surrogate to the 896.7-acre zone\\n\\nwhen the agency found that a total of 1,974 acres of potential MCI habitat would be\\n\\nimpacted by the pipeline, FWS failed to establish a proper “causal link between the isopod\\n\\nand the geographic bounds of the take limit.” Sierra Club, 899 F.3d at 278. 12\\n\\n In the 2018 ITS, FWS commits the same error that we identified in our previous\\n\\nopinion. The ITS provides no explanation for its failure to account for potential take of\\n\\nMCI in the remainder of the 1,974 acres of MCI habitat impacted by pipeline construction.\\n\\nAnd while the 2018 BiOp explains that FWS does “not anticipate impacts to MCI in the\\n\\nremainder of the 1,974 surface acres” for two reasons, neither of those reasons is availing.\\n\\n First, FWS asserts that there will be no impacts to MCI outside of the 896.7-acre\\n\\narea due to the avoidance and minimization measures (“AMMs”) put in place by FERC.\\n\\nJ.A. 1188. Yet, the 2018 BiOp acknowledges that the AMMs “will not be completely\\n\\n\\n 12\\n We also found that the take limit failed to provide a clear standard for enforcement\\nbecause it limited take to a “small percent of” MCI within the 11.2-acrea area. Sierra Club,\\n899 F.3d at 278. The 2018 ITS does not make the same mistake of using vague language\\nto define the take limit, and Petitioners do not argue that the current take limit fails to\\nestablish a “clear standard.” 50 C.F.R. § 402.14(i)(1)(i). Rather, Petitioners challenge the\\n2018 BiOp and ITS’s conclusion that no MCI take is anticipated in the remainder of the\\n1,974 acres of potential MCI habitat.\\n\\n 47\\n\\feffective in preventing all sediment from entering the phreatic water” in which the MCI\\n\\nlive and that AMMs “cannot completely prevent shifts in surface and sub-surface\\n\\nformations and hydrology from trenching, digging, or blasting.” J.A. 1217. “Sudden shifts\\n\\nin subterranean structures are likely to crush or trap MCIs, alter their travel corridors, or\\n\\nisolate portions of the population.” J.A. 1217–18. Therefore, even with the AMMs in\\n\\nplace, FWS “anticipate[s] a reduction in the fitness of this undocumented population.” J.A.\\n\\n1218.\\n\\n Second, FWS asserts in the BiOp that there will be no impacts to MCI outside of\\n\\nthe 896.7 acres because of the depth of the water that the MCI inhabit. J.A. 1188.\\n\\nSpecifically, the depth to groundwater in Augusta County, where MCI live, is\\n\\napproximately 20 feet below the surface, and pipeline construction will disturb only 6 to 8\\n\\nfeet below the surface. Id. Therefore, FWS concludes that pipeline construction is “not\\n\\nexpected to pose a significant risk to groundwater.” Id. However, nothing in the 2018\\n\\nBiOp states that impacts to the MCI will occur only where construction occurs within the\\n\\ngroundwater table. Rather, the BiOp makes clear that blasting and trenching through karst\\n\\nterrain will injure and kill MCI at a distance by causing the crumbling of geologic\\n\\nformations. J.A. 1202, 1217. While FWS took this into account in assessing the MCI\\n\\nlikely to be taken by construction of the right-of-way in the 11.2 acres near Cochran’s\\n\\nCave, the agency fails to explain why construction activities that impact the remaining\\n\\n1,974 acres will not have the same effects. If ground disturbing activities will cause the\\n\\nhorizontal crumbling of the karst terrain hundreds of acres away, it is “implausible” to\\n\\nexpect that the same activities will not impact the terrain a mere 12 vertical feet below. See\\n\\n\\n 48\\n\\fDefs. of Wildlife, 762 F.3d at 396 (explaining that agency action is arbitrary if it is “so\\n\\nimplausible that it could not be ascribed to a difference in view or the product of agency\\n\\nexpertise”).\\n\\n The arbitrary nature of FWS’s choice to ignore the remainder of the potential MCI\\n\\nhabitat in formulating its habitat surrogate is highlighted by other evidence in the record\\n\\nregarding the relevant terrain. There is evidence of sinkholes and sinking streams located\\n\\noutside of the 11.2-acre Cochran Cave area (and outside of the 885.5-acre zone affected by\\n\\nground disturbing activities at the cave) but within the remainder of the 1,974 acres of\\n\\npotential MCI habitat. See J.A. 630 (listing sinkholes A096-8, A105-1, and A132-2 as\\n\\nhigh-risk sinkholes in areas where MCI presence is assumed). As the Final Environmental\\n\\nImpact Statement explains, these sinkholes pose a concern because “water and sediment\\n\\nmovement from construction activities may transfer to subterranean habitats occupied by\\n\\n[MCI], altering habitats used by the species.” J.A. 632. This could lead to the death of\\n\\nMCI or degradation of MCI habitats to the point where they are rendered unusable. Id.\\n\\nAnd “because of the interconnected network of karst features, actions in one area can\\n\\nproduce impacts considerable distances from the actual point of activity.” Id. The 2018\\n\\nBiOp and ITS do not address the sinkhole evidence or plausibly explain why MCI in the\\n\\nremaining 1,974 acres of MCI habitat that contain open sinkholes will not be subject to\\n\\ntake.\\n\\n Based on the above, it appears likely that construction activities will result in the\\n\\ntake of more MCI than set forth in the habitat surrogate of the 2018 ITS. FWS has again\\n\\nfailed to establish a “causal link between the surrogate and take of the listed species.”\\n\\n\\n 49\\n\\fSierra Club, 899 F.3d at 271; 50 C.F.R. § 402.14(i)(1)(i). Therefore, the MCI take limit\\n\\ndoes not comply with the requirements of the ESA and is an unenforceable habitat\\n\\nsurrogate.\\n\\n\\n\\n V.\\n\\n We cannot ignore that it took FWS a mere 19 days to issue the 2018 BiOp and ITS\\n\\nafter FERC resumed formal consultation with the agency following our first decision in\\n\\nthis matter. In fast-tracking its decisions, the agency appears to have lost sight of its\\n\\nmandate under the ESA: “to protect and conserve endangered and threatened species and\\n\\ntheir habitats.” Nat’l Ass’n of Home Builders, 551 U.S. at 651. This mandate has “priority\\n\\nover the ‘primary missions’ of federal agencies.” Tenn. Valley Auth. v. Hill, 437 U.S. 153,\\n\\n185 (1978). We hope that, upon remand, FWS will consider any further action it takes\\n\\nwith this mandate in mind.\\n\\n For the foregoing reasons, FWS’s 2018 BiOp and ITS arbitrarily conclude that ACP\\n\\nconstruction will not jeopardize the RPBB or the clubshell and fail to create enforceable\\n\\ntake limits for the Ibat and MCI. Because FWS’s decisions are arbitrary and capricious,\\n\\nwe vacate the 2018 BiOp and ITS.\\n\\n\\n\\n VACATED AND REMANDED\\n\\n\\n\\n\\n 50\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2963,"cells":{"id":{"kind":"number","value":4643703,"string":"4,643,703"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee, v. Benjamin GALECKI, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Charles Burton Ritchie, Defendant - Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Benjamin Galecki"},"decision_date":{"kind":"string","value":"2019-07-29"},"docket_number":{"kind":"string","value":"18-4727; 18-4730"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Agee, Floyd, Duncan\", \"parties\": \"\", \"opinions\": [{\"author\": \"AGEE, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-4727\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff – Appellee,\\n\\n v.\\n\\nBENJAMIN GALECKI,\\n\\n Defendant – Appellant.\\n\\n\\n\\n\\n No. 18-4730\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff – Appellee,\\n\\n v.\\n\\nCHARLES BURTON RITCHIE,\\n\\n Defendant – Appellant.\\n\\n\\n\\nAppeals from the United States District Court for the Eastern District of Virginia, at\\nNewport News. Raymond A. Jackson, District Judge. (4:15-cr-00018-RAJ-LRL-1; 4:15-\\ncr-00018-RAJ-LRL-2)\\n\\fArgued: March 19, 2019 Decided: July 29, 2019\\n\\n\\nBefore AGEE and FLOYD, Circuit Judges, and DUNCAN, Senior Circuit Judge.\\n\\n\\nAffirmed in part, reversed in part, vacated, and remanded by published opinion. Judge\\nAgee wrote the opinion, in which Judge Floyd and Senior Judge Duncan joined.\\n\\n\\nARGUED: J. Lloyd Snook, III, SNOOK & HAUGHEY, P.C., Charlottesville, Virginia,\\nfor Appellants. Eric Matthew Hurt, OFFICE OF THE UNITED STATES ATTORNEY,\\nNewport News, Virginia, for Appellee. ON BRIEF: Christian L. Connell, Norfolk,\\nVirginia, for Appellant Benjamin Galecki. G. Zachary Terwilliger, United States\\nAttorney, Alexandria, Virginia, Kevin Hudson, Assistant United States Attorney,\\nOFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for\\nAppellee.\\n\\n\\n\\n\\n 2\\n\\fAGEE, Circuit Judge:\\n\\n A federal jury convicted Benjamin Galecki and Charles Burton Ritchie\\n\\n(“Defendants”) of charges related to a conspiracy to distribute controlled substance\\n\\nanalogues. Defendants then appealed to this Court for the first time, challenging several\\n\\nof the trial court’s rulings, including the failure to compel a Drug Enforcement\\n\\nAdministration (DEA) chemist to testify on their behalf, the exclusion of certain\\n\\nevidence, and the formulation of a jury instruction. In that appeal, we upheld the jury\\n\\ninstruction, but vacated Defendants’ convictions and remanded the case for the district\\n\\ncourt to determine whether the DEA chemist’s testimony was material to their case.\\n\\nUnited States v. Ritchie, 734 F. App’x 876 (4th Cir. 2018) (Ritchie II). On remand, the\\n\\ndistrict court held the chemist’s testimony was not material and declined to compel his\\n\\npresence at trial. United States v. Ritchie, No. 4:15-cr-18, 2018 WL 4693811 (E.D. Va.\\n\\nSept. 28, 2018) (Ritchie III). Defendants now appeal that decision and renew several\\n\\nother evidentiary challenges that we declined to address in the prior appeal. As discussed\\n\\nbelow, we affirm in part, reverse in part, vacate Defendants’ convictions, and remand for\\n\\na new trial.\\n\\n\\n\\n I.\\n\\n A.\\n\\n Federal law prohibits the distribution of a controlled substance analogue. See 21\\n\\nU.S.C. §§ 813, 841(a)(1). The Analogue Act defines “controlled substance analogue” as\\n\\n\\n\\n 3\\n\\f a substance—\\n\\n (i) the chemical structure of which is substantially similar to the\\n chemical structure of a controlled substance in schedule I or II;\\n\\n (ii) which has a stimulant, depressant, or hallucinogenic effect on the\\n central nervous system that is substantially similar to or greater than the\\n stimulant, depressant, or hallucinogenic effect on the central nervous\\n system of a controlled substance in schedule I or II; or\\n\\n (iii) with respect to a particular person, which such person represents or\\n intends to have a stimulant, depressant, or hallucinogenic effect on the\\n central nervous system that is substantially similar to or greater than the\\n stimulant, depressant, or hallucinogenic effect on the central nervous\\n system of a controlled substance in schedule I or II.\\n\\n21 U.S.C. § 802(32)(A). Because an Analogue Act conviction requires proof of a\\n\\ndefendant’s knowledge and intent, that is, his mens rea, the Government must show that\\n\\nhe knew either that the substance at issue is a controlled substance or that it is\\n\\n“substantially similar” to a controlled substance in both chemical structure and\\n\\nphysiological effects. See id. This Court has explained that a person has violated the\\n\\nAnalogue Act if he\\n\\n (1) distributed a substance that had the chemical structure of an analogue\\n and the actual, intended, or claimed physiological effects of an analogue;\\n (2) intended that the substance be used for human consumption; and (3)\\n knew either the legal status of the substance, or the chemical structure and\\n physiological effects of that substance.\\n\\nUnited States v. McFadden, 823 F.3d 217, 223 (4th Cir. 2016).\\n\\n B.\\n\\n From 2010 to 2013, Defendants operated Zencense Incenseworks, LLC, which\\n\\nhad facilities in Pensacola, Florida, and Las Vegas, Nevada. Zencense manufactured and\\n\\nsold a substance commonly called “spice,” which contained a mix of crushed leaves and\\n\\n 4\\n\\fchemical additives. Consumers would generally smoke the spice, but Defendants\\n\\npackaged the product as “incense” and labeled it “Not for human consumption.” J.A. 633.\\n\\nIn late March or early April 2012, Defendants began using the chemical additives XLR-\\n\\n11 and UR-144 in their manufactured spice. These additives were not on the controlled\\n\\nsubstances drug schedule during the time period of the alleged conspiracy (February 8,\\n\\n2012 to April 30, 2013). 1 Defendants shipped their product around the country for sale by\\n\\nvarious retailers, including one in Hampton Roads, Virginia, which received a shipment\\n\\non August 9, 2012. 2\\n\\n The Government had begun investigating Zencense’s operations because it\\n\\nsuspected Defendants’ “incense” was actually synthetic marijuana, i.e., a substance\\n\\n“designed and intended to have an effect similar to controlled substances” (marijuana)\\n\\nwhen smoked. J.A. 110. In the Government’s view, this physiological effect, coupled\\n\\nwith the chemical similarity of the additive XLR-11 to the controlled chemical in\\n\\nmarijuana, JWH-018, makes Defendants’ spice a controlled substance analogue within\\n\\nthe meaning of 21 U.S.C. § 802(32)(A). On that basis, the Government charged\\n\\nDefendants with conspiring to distribute controlled substances and controlled substance\\n\\nanalogues, in violation of 21 U.S.C. §§ 846, 813; using a communication facility to\\n\\npromote unlawful activity, in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2; using a\\n\\nfacility in interstate commerce to promote unlawful activity, in violation of 18 U.S.C.\\n\\n 1\\n XLR-11 and UR-144 have been treated as identical substances in this case.\\nUnless otherwise stated, reference to one is reference to the other.\\n 2\\n Though the shipment may have occurred on August 8, 2012, the invoice is dated\\nAugust 9, so we rely on that date.\\n\\n 5\\n\\f§§ 1952(a)(3), 2; and distributing controlled substances and controlled substance\\n\\nanalogues, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2.\\n\\n At Defendants’ joint trial, the Government had to prove a scientific element as to\\n\\nthe spice and a mens rea element as to each Defendant. To establish the scientific\\n\\nelement, the Government had to show that XLR-11 in the spice had properties\\n\\n“substantially similar” to the properties of JWH-018 in marijuana. See 21 U.S.C.\\n\\n§ 802(32)(A). And to establish the mens rea element, the Government had to satisfy one\\n\\nof two methods of proof: either that Defendants knew XLR-11 was a controlled\\n\\nsubstance analogue or that they knew the “chemical structure and physiological effects”\\n\\nof XLR-11 were substantially similar to those of JWH-018. See McFadden, 823 F.3d at\\n\\n223. The Government proceeded under the second method of proof and attempted to\\n\\n“establish that ‘the defendant knew the specific analogue he was dealing with, even if he\\n\\ndid not know its legal status as an analogue.’” Id. (quoting McFadden v. United States,\\n\\n135 S. Ct. 2298, 2305 (2015)). “Under this second method of proof, knowledge of the\\n\\nsubstance’s chemical structure and physiological effects is sufficient to support a\\n\\nconviction.” Id. Defendants challenged both the scientific and mens rea elements of the\\n\\nGovernment’s case, contending XLR-11 is not chemically similar to JWH-018 and\\n\\nasserting they lacked knowledge of any similarity between the structures or physiological\\n\\neffects of the two chemicals.\\n\\n Defendants’ first trial resulted in a hung jury on each count. During a second trial,\\n\\nthe jury indicated it was at an impasse on the issue of substantial similarity, and the\\n\\n\\n\\n 6\\n\\fdistrict court issued an Allen charge. 3 The jury then convicted Defendants of all counts.\\n\\n C.\\n\\n Defendants appealed, challenging a number of the trial court’s rulings. Our\\n\\nopinion addressed only two issues: the court’s refusal to compel DEA chemist Dr. Arthur\\n\\nBerrier to testify for Defendants and its formulation of a mens rea jury instruction. See\\n\\nRitchie II, 734 F. App’x at 878–81.\\n\\n Defendants framed Dr. Berrier’s exclusion from trial as a Sixth Amendment\\n\\ncompulsory process violation. See id. at 878–79. Under the Sixth Amendment, a criminal\\n\\ndefendant “enjoy[s] the right . . . to have compulsory process for obtaining witnesses in\\n\\nhis favor.” U.S. Const. amend. VI. Though “not absolute,” United States v. Prince-Oyibo,\\n\\n320 F.3d 494, 501 (4th Cir. 2003), this right is violated when a defendant is “arbitrarily\\n\\ndeprived of testimony that would have been relevant and material, and vital to the\\n\\ndefense,” United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (internal\\n\\nquotation marks, alterations, and emphases omitted). To establish a Sixth Amendment\\n\\nviolation, a criminal defendant “must at least make some plausible showing of how [the\\n\\nexcluded] testimony would have been both material and favorable to his defense.” Id.\\n\\n Exercising their compulsory process rights prior to trial, Defendants issued a\\n\\n“Touhy request” 4 to the Government along with a subpoena for Dr. Berrier. 5 The\\n\\n\\n\\n 3\\n Allen v. United States, 164 U.S. 492 (1896). See United States v. Cornell, 780\\nF.3d 616, 625 (4th Cir. 2015) (explaining that an Allen charge is a supplemental jury\\ninstruction given “when the jury has reached an impasse in its deliberations and is unable\\nto reach a consensus”).\\n\\n 7\\n\\fGovernment denied the Touhy request, claiming Dr. Berrier’s opinion formed in the\\n\\ncourse of his employment with the DEA was covered by the Government’s deliberative\\n\\nprocess privilege. See Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532\\n\\nU.S. 1, 8 (2001) (noting the deliberative process privilege covers written “opinions,\\n\\nrecommendations and deliberations comprising part of a process by which governmental\\n\\ndecisions and policies are formulated” (internal quotation marks omitted)). The district\\n\\ncourt agreed with the Government and quashed the subpoena, thereby rejecting\\n\\nDefendants’ compulsory process arguments. When Defendants challenged the district\\n\\ncourt’s privilege ruling on appeal, we held that the Government had waived its privilege\\n\\nas to Dr. Berrier’s XLR-11 opinion because he had offered it in other cases and made it\\n\\npublicly available online. Ritchie II, 734 F. App’x at 879. But we then noted that\\n\\n [t]he absence of a privilege does not end the inquiry, however, because the\\n Defendants’ compulsory process right extends only to “favorable” and\\n “material” witnesses and evidence. Dr. Berrier’s testimony is clearly\\n favorable to the Defendants, but the district court did not consider\\n materiality, and we leave it to that court to determine in the first instance. If\\n Dr. Berrier’s testimony is material and otherwise admissible, the\\n\\n\\n 4\\n United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). Under 5 U.S.C. § 301\\nand Touhy, federal agencies may regulate their employees’ ability to testify about their\\nwork, United States v. Soriano-Jarquin, 492 F.3d 495, 504 (4th Cir. 2007), but criminal\\ndefendants may seek such agency employees’ testimony at trial via what are now termed\\n“Touhy requests,” see id.; Smith v. Cromer, 159 F.3d 875, 879 (4th Cir. 1998) (describing\\nthe interplay of Touhy requests and witness subpoenas).\\n 5\\n Dr. Berrier is no longer a DEA employee, but whether the district court properly\\nexcluded his testimony depends on the facts before the district court when Defendants\\nissued the Touhy request to the Government. See Hertz v. Luzenac Am., Inc., 370 F.3d\\n1014, 1019 (10th Cir. 2004) (“As a reviewing court, we may only ‘evaluate the trial\\ncourt’s decision from its perspective when it had to rule and not indulge in review by\\nhindsight.’” (quoting Old Chief v. United States, 519 U.S. 172, 182 n.6 (1997))).\\n\\n 8\\n\\f Defendants’ Sixth Amendment rights were violated by his exclusion from\\n the trial.\\n\\nId.\\n\\n We vacated Defendants’ convictions and remanded to the district court the initial\\n\\ndetermination of whether Dr. Berrier’s testimony would be material. Further, we\\n\\nexercised our discretion to address Defendants’ challenge to the jury instruction as that\\n\\nissue was “likely to recur” and then affirmed the district court’s use of the instruction. Id.\\n\\n(quoting United States ex rel. Drakeford v. Tuomey Healthcare Sys., Inc., 675 F.3d 394,\\n\\n406 (4th Cir. 2012)).\\n\\n On remand, the district court concluded that Dr. Berrier’s testimony was not\\n\\nmaterial to Defendants’ case because it would have been “merely cumulative” to\\n\\ntestimony from Defendants’ two other expert chemists. Ritchie III, 2018 WL 4693811, at\\n\\n*4. The district court determined that those chemists used the same methods and came to\\n\\nthe same conclusion as Dr. Berrier, and that his “position at the DEA would not provide\\n\\nany new relevant information” to the jury. Id. The court accordingly held that Dr.\\n\\nBerrier’s exclusion from the trial did not violate Defendants’ Sixth Amendment\\n\\ncompulsory process rights.\\n\\n Defendants now bring a second appeal. 6 7\\n\\n\\n\\n\\n 6\\n Unless otherwise stated, all references to rulings made “at trial” refer to the\\ndistrict court’s rulings applicable to Defendants’ second trial, which occurred before the\\nfirst appeal and remand.\\n 7\\n While it is unclear whether Galecki joined all of Ritchie’s arguments below, he\\nhas joined Ritchie’s briefs on appeal and has not indicated that he departs from any of\\nRitchie’s arguments. We will therefore assume that Galecki joins all of Ritchie’s\\n(Continued)\\n 9\\n\\f II.\\n\\n A.\\n\\n To challenge the scientific element of the Government’s case—that XLR-11 is\\n\\nsubstantially similar to JWH-018—Defendants sought to compel the expert testimony of\\n\\nDr. Berrier, a Senior Research Chemist in the DEA’s Office of Forensic Sciences\\n\\n(“OFS”). Dr. Berrier would have opined that XLR-11 and JWH-018 are not substantially\\n\\nsimilar in chemical structure. While another DEA office, the Drug and Chemical\\n\\nEvaluation Section (“DRE”) in the Office of Diversion Control, ultimately classifies\\n\\ncontrolled substance analogues, it regularly consults the OFS before making its decisions.\\n\\nAs an OFS chemist, Dr. Berrier routinely analyzed synthetic substances for the DRE and\\n\\ngave his opinion on their substantial similarity to controlled substances. In the spring of\\n\\n2012, the DRE asked Dr. Berrier to compare UR-144 to JWH-018. 8 He concluded that\\n\\nthey are not substantially similar in chemical structure. But ultimately, after the charged\\n\\nevents, the DRE determined that UR-144 and JWH-018 are substantially similar, making\\n\\nUR-144 a controlled substance analogue. The DEA formally added UR-144 and XLR-11\\n\\nto the controlled substances drug schedule in 2013, after the alleged conspiracy ended.\\n\\n\\narguments. Moreover, where the district court’s rulings applied equally to Defendants\\nbecause they were business partners in constant communication during the alleged\\nconspiracy and did not seek severance of their joint trial, our holdings apply to both\\nDefendants as well. See United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992) (“[I]t is\\nmanifestly unjust to reverse the conviction of one co-defendant but to uphold the\\nconviction of another co-defendant when the same error affected both defendants.”\\n(internal quotation marks omitted)).\\n 8\\n Dr. Berrier analyzed UR-144 for the DRE, but it is undisputed that his opinion\\nwould have applied to XLR-11 as well.\\n\\n 10\\n\\f Defendants argued that Dr. Berrier’s testimony was crucial to their case, as he was\\n\\na DEA synthetic cannabinoid expert with a dissenting view—a view demonstrating that\\n\\neven highly-trained Government employees disagreed about the substantial similarity of\\n\\nXLR-11 and JWH-018. Indeed, one of the Government’s expert witnesses at trial was Dr.\\n\\nJordan Trecki, a pharmacologist in the DRE section of the DEA who testified about the\\n\\neffects and substantial similarity of XLR-11 to JWH-018. As discussed above,\\n\\nDefendants unsuccessfully sought to compel Dr. Berrier’s testimony on their behalf.\\n\\n Barred from questioning Dr. Berrier, Defendants relied on the expert testimony of\\n\\ntwo chemistry professors, Drs. Croatt and Dudley, who gave the same opinion that Dr.\\n\\nBerrier would have given—an opinion that contradicted Dr. Trecki’s. During cross-\\n\\nexamination, the Government questioned Defendants’ “hired guns” about the\\n\\ncompensation they received for testifying. In convicting Defendants, the jury ultimately\\n\\nrejected Drs. Croatt and Dudley’s expert opinion about XLR-11 and JWH-018.\\n\\n B.\\n\\n In this appeal, we are reviewing the district court’s determination that Dr. Berrier’s\\n\\nexclusion from trial did not violate Defendants’ Sixth Amendment rights since his\\n\\ntestimony would have been cumulative and not material to their defense. We disagree and\\n\\ntherefore reverse the district court’s materiality finding, vacate Defendants’ convictions,\\n\\nand remand for a new trial. See United States v. Rhynes, 218 F.3d 310, 323 (4th Cir.\\n\\n2000) (en banc) (holding that a Sixth Amendment constitutional violation occurred and\\n\\nremanding for a new trial).\\n\\n\\n\\n 11\\n\\f C.\\n\\n Before addressing the materiality issue on the merits, we first note that it is unclear\\n\\nwhat standard of review applies to a materiality ruling in the Sixth Amendment context.\\n\\nWe and our sister circuits apply no uniform standard of review to either the issue of\\n\\nmateriality in a compulsory process challenge or to evidentiary issues underlying general\\n\\nSixth Amendment challenges.\\n\\n With regard to compulsory process claims, our sister circuits apply both the de\\n\\nnovo and abuse of discretion standards of review, even at times applying different\\n\\nstandards in the same circuit without explanation. Compare United States v. Tuma, 738\\n\\nF.3d 681, 688 (5th Cir. 2013) (reviewing compulsory process claim de novo), United\\n\\nStates v. Damra, 621 F.3d 474, 485 (6th Cir. 2010) (same), United States v. Bahamonde,\\n\\n445 F.3d 1225, 1228 (9th Cir. 2006) (same), and United States v. Serrano, 406 F.3d\\n\\n1208, 1214–15 (10th Cir. 2005) (same), with United States v. Ross, 703 F.3d 856, 877–78\\n\\n(6th Cir. 2012) (reviewing compulsory process claim for abuse of discretion), United\\n\\nStates v. Youngman, 481 F.3d 1015, 1017 (8th Cir. 2007) (same), and United States v.\\n\\nGary, 74 F.3d 304, 309–10 (1st Cir. 1996) (same). Within the compulsory process\\n\\ncontext, it is often unclear what standard of review applies to an underlying materiality\\n\\nissue like the one presented here.\\n\\n Not only that, but the circuits take a variety of approaches to reviewing Sixth\\n\\nAmendment claims that stem from issues like the exclusion of evidence or the denial of a\\n\\nmotion to continue. Compare United States v. Rivas, 831 F.3d 931, 934 (7th Cir. 2016)\\n\\n(reviewing an evidentiary ruling for abuse of discretion but reviewing the overarching\\n\\n 12\\n\\fSixth Amendment Confrontation Clause claim de novo), and United States v. Woodard,\\n\\n699 F.3d 1188, 1193–94 (10th Cir. 2012) (reviewing an evidentiary ruling de novo\\n\\nbecause the defendant framed it as a Confrontation Clause violation), with United States\\n\\nv. Blum, 62 F.3d 63, 67 (2d Cir. 1995) (reviewing an evidentiary ruling for abuse of\\n\\ndiscretion without announcing a separate standard of review for the overarching\\n\\ncompulsory process challenge).\\n\\n Consequently, when faced with an issue presented under the Sixth Amendment,\\n\\nour sister courts often decline to decide the standard of review question and instead\\n\\nanalyze the district court’s ruling under either standard. E.g., United States v. Epskamp,\\n\\nNo. 15-2028-cr, 2016 WL 4191126, at *2 (2d Cir. Aug. 5, 2016) (summary order)\\n\\n(affirming under either standard of review the district court’s refusal to postpone a trial\\n\\ndespite the government’s failure to secure testimony of an individual incarcerated outside\\n\\nthe United States); United States v. Ladoucer, 573 F.3d 628, 634–35 (8th Cir. 2009)\\n\\n(affirming under either standard of review the district court’s refusal to postpone a trial\\n\\ndespite a defense witness’s failure to appear).\\n\\n Another common approach we often employ is simply refraining from announcing\\n\\na separate standard of review for each issue. See United States v. Beyle, 782 F.3d 159,\\n\\n171 (4th Cir. 2015) (announcing no standard for reviewing the overarching compulsory\\n\\nprocess challenge and reviewing the district court’s refusal to compel witnesses for abuse\\n\\nof discretion); United States v. Woods, 710 F.3d 195, 200–02 (4th Cir. 2013) (doing the\\n\\nsame and reviewing the district court’s exclusion of testimony for abuse of discretion);\\n\\nUnited States v. Passaro, 577 F.3d 207, 221 (4th Cir. 2009) (doing the same and\\n\\n 13\\n\\freviewing the district court’s quashing of subpoenas to CIA officials for abuse of\\n\\ndiscretion); Soriano-Jarquin, 492 F.3d at 497, 501–02 (doing the same and reviewing the\\n\\ndistrict court’s denial of a motion to dismiss the indictment de novo); Cromer, 159 F.3d\\n\\nat 882–83 (doing the same and reviewing the district court’s grant of a protective order\\n\\nquashing subpoenas de novo); United States v. Espinoza, 641 F.2d 153, 159 (4th Cir.\\n\\n1981) (doing the same and reviewing the district court’s refusal to issue subpoenas for\\n\\nabuse of discretion).\\n\\n Here, the district court found Dr. Berrier’s testimony immaterial and then\\n\\nexcluded him from trial by declining to compel him to testify. The Parties seem to agree\\n\\nthat the exclusion of Dr. Berrier was an evidentiary ruling, which we review for abuse of\\n\\ndiscretion and harmlessness, United States v. McLean, 715 F.3d 129, 143 (4th Cir. 2013),\\n\\nbut they do not directly address the standards of review applicable to the underlying\\n\\nmateriality ruling or the overarching Sixth Amendment claim.\\n\\n When previously faced with a materiality question similar to the one Defendants\\n\\nnow present, we declined to decide it and instead affirmed under either standard of\\n\\nreview. United States v. Moussaoui, 382 F.3d 453, 473 n.22 (4th Cir. 2004) (“The parties\\n\\ndispute whether the materiality determinations by the district court [in a compulsory\\n\\nprocess claim] are reviewed de novo or for abuse of discretion. We do not decide this\\n\\nquestion . . . .”). And we need not decide this question here. Under either standard, we\\n\\nwould reverse the district court’s finding that Dr. Berrier’s testimony was not material\\n\\nand reverse its exclusion of his testimony. Therefore, we will refrain from announcing the\\n\\n\\n\\n 14\\n\\fstandard of review applicable to the underlying materiality determination or to the\\n\\noverarching Sixth Amendment compulsory process challenge.\\n\\n For conducting the materiality analysis on the merits, however, we do have clear\\n\\nguidance from the Supreme Court in Valenzuela-Bernal. 458 U.S. at 867–74. In that case,\\n\\nthe Court concluded the district court properly denied the defendant’s motion to dismiss\\n\\nthe indictment on compulsory process grounds because, although the Government had\\n\\nremoved potential defense witnesses from the country, the defendant had failed to\\n\\n“explain what material, favorable evidence the deported [witnesses] would have provided\\n\\nfor his defense.” Id. at 874. In deciding Valenzuela-Bernal, the Supreme Court noted that\\n\\nmateriality has several components: it must be exculpatory; it must be “not merely\\n\\ncumulative to the testimony of available witnesses;” it must present “a reasonable\\n\\nlikelihood that the testimony could have affected the judgment of the trier of fact;” and it\\n\\nmust be otherwise admissible. See id. at 873–74. A district court assessing the materiality\\n\\nof evidence must address these components in the context of the entire record. Id. at 874;\\n\\nsee Moussaoui, 382 F.3d at 472.\\n\\n D.\\n\\n The district court “assume[d] for the sake of argument that Dr. Berrier’s testimony\\n\\nmay have been admissible and exculpatory,” Ritchie III, 2018 WL 4693811, at *3, and\\n\\nrested its materiality decision on the testimony being cumulative. In particular, the court\\n\\ndetermined Dr. Berrier’s testimony would have been cumulative because Drs. Croatt and\\n\\nDudley gave the same opinion and used the same methods as Dr. Berrier. Because the\\n\\n\\n\\n 15\\n\\fjury had rejected the testifying experts’ opinion, the district court held that Dr. Berrier’s\\n\\nsimilar testimony would not have altered the trial’s outcome.\\n\\n We can easily affirm the district court’s decision on two of the components of\\n\\nmateriality, as Dr. Berrier’s testimony was indeed exculpatory and admissible. It was\\n\\nexculpatory because Defendants could have supported their case theory—that the\\n\\nsubstantial similarity of XLR-11 and JWH-018 was a difficult question—with evidence\\n\\nthat even highly-trained DEA scientists disagreed about the answer. His testimony also\\n\\nwould have been admissible because it was highly relevant and violated no Federal Rules\\n\\nof Evidence.\\n\\n But we disagree with the district court’s analysis of the “not merely cumulative”\\n\\ncomponent, as we conclude that Dr. Berrier’s testimony was qualitatively different from\\n\\nthe testimony of the other defense witnesses. In stark contrast to Drs. Croatt and Dudley,\\n\\nDr. Berrier was not paid outside his DEA employment to form his opinion about XLR-\\n\\n11’s chemical similarity to JWH-018. Nor would Defendants have paid him to testify at\\n\\ntrial. Consequently, the Government could not have impeached Dr. Berrier in front of the\\n\\njury for having a pecuniary motive for testifying. Dr. Berrier’s inability to be impeached\\n\\non that ground made his testimony unique and particularly relevant, not cumulative. See\\n\\nThomas v. Westbrooks, 849 F.3d 659, 666 (6th Cir. 2017) (noting “impeachment on the\\n\\nbasis of pecuniary bias is fundamentally different” from impeachment for other reasons). 9\\n\\n\\n 9\\n We do not comment on the possible subjects of impeachment available to the\\nGovernment in cross-examining Dr. Berrier if he is called to testify at a new trial. That is\\nfor the trial court to decide in the first instance.\\n\\n 16\\n\\f Also unlike Drs. Croatt and Dudley, Dr. Berrier could have rebutted the testimony\\n\\nof Dr. Trecki, the Government’s DEA expert, with his own knowledge of the DEA’s\\n\\nprocesses and analyses. His expert testimony, which diverged from Dr. Trecki’s, could\\n\\nhave shown the jury that the DEA’s own scientists could not agree on the substantial\\n\\nsimilarity of the chemicals at issue. Drs. Croatt and Dudley could not have provided that\\n\\ntype of rebuttal testimony.\\n\\n And finally, Dr. Berrier’s testimony was material to the chemical structure issue\\n\\nbecause presenting it to the jury could reasonably have resulted in a different trial\\n\\noutcome. The jurors struggled to decide whether XLR-11 is substantially similar to JWH-\\n\\n018, as indicated by their note to the district court that they were “basically hung on\\n\\nCount 1, substantially similar.” J.A. 2048. That note prompted the court to issue an Allen\\n\\ncharge, after which the jury convicted Defendants. Had Defendants presented testimony\\n\\nfrom someone who opined on that very issue in the course of his duties at the DEA, the\\n\\njury could have entertained reasonable doubt about whether XLR-11 and JWH-018 are\\n\\nsubstantially similar in chemical structure.\\n\\n The Government asserts that any error in excluding Dr. Berrier was harmless and\\n\\nthus does not warrant reversal. Not so. A constitutional error is harmless only “if it is\\n\\n‘clear beyond a reasonable doubt that a rational jury would have found the defendant\\n\\nguilty absent the error.’” United States v. Sayles, 296 F.3d 219, 223 (4th Cir. 2002)\\n\\n(quoting Neder v. United States, 527 U.S. 1, 18 (1999)). Here, the jury’s difficulty with\\n\\nthe substantial similarity issue suggests that Dr. Berrier’s testimony was “evidence upon\\n\\nwhich [the] jury could have reached a contrary finding.” See Rhynes, 218 F.3d at 323\\n\\n 17\\n\\f(internal quotation marks omitted). Defendants “genuinely contested” the substantial\\n\\nsimilarity of XLR-11 and JWH-018 at every turn, and Dr. Berrier was uniquely situated\\n\\n“to rebut much of the Government’s [scientific] evidence against [them].” See id.\\n\\n(internal quotation marks omitted); see also United States v. Yarbrough, 527 F.3d 1092,\\n\\n1103 (10th Cir. 2008) (holding the defendant’s “substantial rights were affected” when\\n\\n“the district court’s error deprived [him] of important evidence relevant to a sharply\\n\\ncontroverted question going to the heart of [his] defense”). Accordingly, we harbor doubt\\n\\nabout whether the jury would have convicted Defendants if Dr. Berrier had testified, and\\n\\nwe hold that his exclusion from trial was a Sixth Amendment violation that was “not\\n\\nharmless.” See Rhynes, 218 F.3d at 323. 10\\n\\n Even if Defendants would have made different strategic choices had Dr. Berrier\\n\\nbeen made available to them—for example, calling only one of the other expert\\n\\nchemists—the court improperly denied them the opportunity to present favorable,\\n\\nmaterial evidence. See Valenzuela-Bernal, 458 U.S. at 867. Under either the de novo or\\n\\nabuse of discretion standard of review, we hold that the district court wrongly quashed\\n\\n\\n\\n\\n 10\\n Since we hold the district court’s error was not harmless under the harmless\\nerror standard applicable to constitutional decisions, it also was not harmless under the\\nlower harmless error standard applicable to pure evidentiary decisions. See United States\\nv. Ferguson, 752 F.3d 613, 618 (4th Cir. 2014) (contrasting the two harmless error\\nthresholds and noting a pure evidentiary error is not harmless if it had a “‘substantial and\\ninjurious effect or influence in determining the jury’s verdict’” (quoting Kotteakos v.\\nUnited States, 328 U.S. 750, 776 (1946))).\\n\\n 18\\n\\fthe subpoena to Dr. Berrier. We therefore reverse the district court’s materiality ruling,\\n\\nvacate Defendants’ convictions and remand for a new trial. 11\\n\\n\\n\\n III.\\n\\n We now turn to the district court’s exclusion of certain defense evidence. To\\n\\nnegate the mens rea element of the Government’s case—that Defendants knew XLR-11\\n\\nwas substantially similar to JWH-018 in chemical structure and physiological effects—\\n\\nDefendants proffered evidence to demonstrate that they had innocent intent when\\n\\nshipping their spice to Virginia on August 9, 2012. The court excluded this evidence,\\n\\nwhich came from three sources: DEA Special Agent Claude Cosey, attorney David\\n\\nMcGee, and Defendant Ritchie. Defendants argue the exclusion of this evidence is\\n\\nreversible error. But before assessing the district court’s rulings, we will address three\\n\\npreliminary matters.\\n\\n A.\\n\\n 1.\\n\\n First, these issues are now before us for the second time. We exercise our\\n\\ndiscretion to address Defendants’ claims because we are remanding for a new trial and\\n\\n\\n 11\\n In any further proceedings, the Government has the option to grant the Touhy\\nrequest as to Dr. Berrier, dismiss the indictment, or endure a sanction. See United States\\nv. Rivera, 412 F.3d 562, 570 (4th Cir. 2005) (“If the evidence is material to the defense,\\nthen the government must provide the evidence or, in most cases, dismiss the\\nprosecution.”); Moussaoui, 382 F.3d at 476 (concluding that excluded witnesses’\\ntestimony was material and noting “the choice is the Government’s whether to comply\\nwith [the relevant] orders or suffer a sanction”).\\n\\n 19\\n\\fthe issues are “likely to recur on remand.” Drakeford, 675 F.3d at 406. The Government\\n\\nincorrectly argues that Defendants waived the undecided claims from the first appeal\\n\\nbecause they did not press those claims in the district court on remand. On the contrary,\\n\\nDefendants had no opportunity to reassert their claims in the district court before the\\n\\ncurrent appeal, given the limited remand and the district court’s materiality ruling. Our\\n\\ndecision to “not address” every issue in the first appeal, Ritchie II, 734 F. App’x at 879\\n\\nn.7, had no bearing on the merits of the unaddressed claims. We created no “law of the\\n\\ncase” as to them and we will address in turn the claims Defendants have raised again in\\n\\nthis appeal. See Brittingham v. Jenkins, No. 91-1245, 1992 WL 172092, at *5 & n.4 (4th\\n\\nCir. July 23, 1992) (unpublished table decision) (per curiam). 12\\n\\n 2.\\n\\n Second, although we generally review evidentiary rulings for abuse of discretion,\\n\\nMcLean, 715 F.3d at 143, Defendants ask us to review the district court’s exclusion of the\\n\\nproffered testimony of Cosey and McGee de novo because it arises in the context of a\\n\\nSixth Amendment claim. 13 As noted above, we often analyze trial court rulings\\n\\nunderlying Sixth Amendment claims without announcing a separate standard of review\\n\\nfor the overarching constitutional challenge. We will do likewise here, reviewing the\\n\\ndistrict court’s exclusions of the Cosey and McGee evidence for abuse of discretion and\\n\\n\\n 12\\n As for Defendants’ renewed mens rea jury instruction claim, however, we have\\nalready established that the district court properly instructed the jury. Ritchie II, 734 F.\\nApp’x at 879–81. We will not disturb that decision, which is the law of the case.\\n 13\\n Defendants have not framed the exclusion of Ritchie’s testimony as a Sixth\\nAmendment violation, so we will review that evidentiary ruling for abuse of discretion.\\n\\n 20\\n\\fharmlessness. See McLean, 715 F.3d at 143. Even if we undertook a de novo review as to\\n\\nthese two witnesses, however, our decisions would not change.\\n\\n 3.\\n\\n Third, we must address Defendants’ argument that they should have been allowed\\n\\nto present evidence of their innocent intent outside the confines of a recognized\\n\\naffirmative defense. In an effort to circumvent the district court’s rejection of their\\n\\nvarious affirmative defenses, Defendants contend that the evidence in question is\\n\\nnonetheless admissible to demonstrate their innocent intent. In contrast to an affirmative\\n\\ndefense, which “excuses punishment for a crime the elements of which have been\\n\\nestablished and admitted,” United States v. Thompson, 554 F.3d 450, 452 n.2 (4th Cir.\\n\\n2009) (internal quotation marks omitted), an innocent intent defense negates the mens rea\\n\\nelement of the charged offenses. However, this Court has not previously permitted an\\n\\ninnocent intent defense and we need not determine whether to do so here in order to\\n\\nresolve this appeal.\\n\\n We understand that at least two district courts examining similar facts to those\\n\\nbefore us have allowed defendants to present innocent intent evidence, even when that\\n\\nevidence was insufficient to support an affirmative defense. See United States v. Way,\\n\\nNo. 1:14–cr–00101–DAD–BAM–1, 2018 WL 3062159, at *1–3 (E.D. Cal. June 19,\\n\\n2018) (compelling Agent Cosey to testify about his conversations with Ritchie as\\n\\nevidence of defendant Way’s innocent intent in facilitating Zencense’s operations);\\n\\nUnited States v. Ritchie, No. 2:15-cr-00285-APG-PAL, 2018 WL 6580570, at *3–4 (D.\\n\\nNev. Dec. 13, 2018) (allowing defendants Ritchie and Galecki to present evidence of\\n\\n 21\\n\\fAgent Cosey’s conversations with Ritchie to demonstrate their innocent intent). Those\\n\\ndecisions, of course, are not precedential or binding on us.\\n\\n Nor are decisions from our sister circuits binding, and only one of those courts has\\n\\nexpressly recognized the innocent intent defense. See United States v. Alvarado, 808 F.3d\\n\\n474, 486 (11th Cir. 2015) (explaining a defendant may “effectively backdoor the rejected\\n\\n[public authority] defense by testifying that he genuinely believed” that the government\\n\\ndirected and approved of his conduct); United States v. Baptista-Rodriguez, 17 F.3d\\n\\n1354, 1368 n.18 (11th Cir. 1994) (collecting cases); see also United States v. Xiong, 914\\n\\nF.3d 1154, 1159–60 (8th Cir. 2019) (leaving undisturbed the district court’s admittance\\n\\nof innocent intent defense evidence even though it did not support the public authority\\n\\nand entrapment by estoppel affirmative defenses). The Eleventh Circuit has also noted\\n\\nthe uniqueness of its position, observing that it “may be the only circuit to explicitly\\n\\nallow an innocent intent defense in this context.” Alvarado, 808 F.3d at 487. Moreover,\\n\\nthe Second Circuit has criticized the Eleventh Circuit’s view as an “‘unwarranted\\n\\nextension’” of the established affirmative defenses. United States v. Giffen, 473 F.3d 30,\\n\\n43 (2d Cir. 2006) (quoting United States v. Wilson, 721 F.2d 967, 975 (4th Cir. 1983), in\\n\\nwhich we affirmed the district court’s refusal to instruct the jury on the “good faith”\\n\\ndefense of reliance on official authority because the evidence did not support it). In the\\n\\nSecond Circuit’s view, allowing defendants to assert an innocent intent defense would\\n\\n“‘grant any criminal carte blanche to violate the law should he subjectively decide’” that\\n\\nhe served some higher, innocent purpose, a lenience which would “swallow the actual\\n\\n\\n\\n 22\\n\\fpublic authority and entrapment-by-estoppel defenses.” Id. (quoting Wilson, 721 F.2d at\\n\\n975).\\n\\n We thus are not alone in hesitating to recognize the innocent intent defense. But\\n\\nsetting aside the limited value of those decisions, we need not decide here whether to\\n\\npermit an innocent intent defense in this Circuit because we can resolve Defendants’\\n\\narguments apart from that defense.\\n\\n B.\\n\\n Finally, we come to the merits of Defendants’ evidentiary challenges, bearing in\\n\\nmind that we may only assess whether the evidence was properly excluded for the reason\\n\\nDefendants proffered it—to negate the mens rea element of the Government’s case. See\\n\\nRamming Real Estate Co. v. United States, 122 F.2d 892, 893 (8th Cir. 1941) (“Where a\\n\\nlitigant seeks a reversal upon a ruling of the court rejecting evidence offered for a specific\\n\\npurpose, he [cannot] in the appellate tribunal change . . . the ground or theory upon which\\n\\nhe asked the lower court to admit the testimony.”); accord Shepard v. United States, 290\\n\\nU.S. 96, 102–03 (1933). For the reasons below, we hold that the district court did not\\n\\nabuse its discretion in excluding Cosey’s testimony and affirm that evidentiary ruling.\\n\\nWith regard to McGee’s and Ritchie’s testimony, however, we vacate the district court’s\\n\\nexclusion of that evidence and remand for further proceedings.\\n\\n 1.\\n\\n a.\\n\\n Agent Cosey: On July 25, 2012, law enforcement officers inspected Zencense’s\\n\\nproduction warehouse in Las Vegas, Nevada. Agent Cosey did not participate in that\\n\\n 23\\n\\f“raid,” but heard about it and called Ritchie, who invited him to visit the Zencense\\n\\nfacility on Burgess Road in Pensacola, Florida. Cosey met Ritchie there the next day.\\n\\nRitchie showed him the facility, described the spice manufacturing and packaging\\n\\nprocess, identified the spice’s chemical additives, and gave Cosey lab reports and spice\\n\\nsamples. At one point Ritchie said to Cosey that “if [Cosey] told [Ritchie] he was doing\\n\\nanything illegal, he would close it down that day.” J.A. 2087. Cosey testified in his\\n\\ndeposition that he did not know at that time whether the spice contained a controlled\\n\\nsubstance or analogue and he offered no opinion to Ritchie that what he was doing was\\n\\neither legal or illegal.\\n\\n Cosey and Ritchie met again in Pensacola on September 13. Along with other law\\n\\nenforcement officers, Cosey inspected a Zencense facility on Copter Road with Ritchie,\\n\\nwho also met privately with Cosey and other officers and obliquely discussed the legality\\n\\nof his business. Ritchie said to them, “I know if law enforcement wants to put somebody\\n\\nout of business that’s not doing anything illegal, there’s means to do it.” J.A. 2101. He\\n\\nreiterated that selling Zencense’s spice was “not illegal,” J.A. 2102, but told Cosey “that\\n\\nif his products were made illegal, if those additives in his products were made illegal, that\\n\\nhe would destroy the product right then and there.” J.A. 2109–10. Cosey responded, “If\\n\\nwhat you are producing and distributing is not a controlled substance, I cannot—law\\n\\nenforcement cannot and will not engage—or interfere in your, you know, ability to\\n\\nconduct commerce.” J.A. 2101.\\n\\n The officers then drove to Zencense’s Burgess Road location and Ritchie\\n\\ncontinued his conversation with Cosey and the officers by asking, “Am I going to\\n\\n 24\\n\\fcontinue to be looked at, targeted by law enforcement?” J.A. 2106. Cosey responded,\\n\\n“While what you are doing may be legal now, it could change in the future.” J.A. 2106.\\n\\nHe further explained, “[J]ust because something is legal today doesn’t mean it might not\\n\\nbe illegal in the future, because the compounds are constantly—they are adding\\n\\ncompounds to the banned list all the time.” J.A. 2107.\\n\\n Before trial, Defendants sought, through a Touhy request, to compel Cosey to\\n\\ntestify about these conversations to establish the affirmative defense of entrapment by\\n\\nestoppel. See United States v. Clark, 986 F.2d 65, 69 (4th Cir. 1993) (“The defense of\\n\\nentrapment by estoppel is available when a government official tells the defendant that\\n\\ncertain activity is legal, the defendant commits the activity in reasonable reliance on that\\n\\nadvice, and prosecution for the conduct would be unfair.”). The district court declined to\\n\\ncompel Cosey’s testimony, holding that the proffered evidence was insufficient to\\n\\nestablish the entrapment by estoppel defense because the spice business had been in full\\n\\nswing for months when Ritchie first talked to Cosey. The court explained that the\\n\\nelement of reasonable reliance was missing: “[Y]ou cannot rely on something that\\n\\nhappened seven months later to try to raise the suggestion that there was some reliance on\\n\\nsomething the government said . . . when the illegal conduct is up and running seven\\n\\nmonths before.” J.A. 356–57.\\n\\n In light of this ruling, Defendants changed course and proffered the same\\n\\ntestimony as general evidence that they lacked the mens rea required to violate the\\n\\nAnalogue Act. They argued that on August 9, the date of the first charged spice shipment\\n\\nto Virginia, they believed distributing spice containing XLR-11 was legal because Cosey\\n\\n 25\\n\\fnever told Ritchie on July 26 that doing so was illegal. The district court denied\\n\\nDefendants’ alternate proffer as a “backdoor way to circumvent the Court’s ruling” and\\n\\nreiterated that Cosey’s testimony was inadmissible because he spoke to Ritchie after the\\n\\nspice enterprise was fully operational. J.A. 357.\\n\\n b.\\n\\n We affirm the district court’s exclusion of Cosey’s testimony because it was\\n\\nirrelevant in two ways. First, Cosey never indicated that selling XLR-11 was legal. Each\\n\\ntime Ritchie asked whether his business was lawful, Cosey responded noncommittally,\\n\\nsaying things like, “If what you are producing and distributing is not a controlled\\n\\nsubstance, . . . law enforcement cannot and will not . . . interfere in your . . . ability to\\n\\nconduct commerce.” J.A. 2101. Even Cosey’s warning on September 13 that “just\\n\\nbecause something is legal today doesn’t mean it might not be illegal in the future,” J.A.\\n\\n2107, was not an affirmative statement that selling XLR-11 was currently legal. Nothing\\n\\nCosey said to Defendants could reasonably support a reliance on an official\\n\\nrepresentation that their actions were lawful, so Cosey’s testimony could not reveal\\n\\nDefendants’ mens rea on that point.\\n\\n Second, Cosey’s testimony is not probative of Defendants’ mens rea because his\\n\\nconversations with Defendants were unrelated to the similarity of XLR-11 and JWH-018.\\n\\nAs Cosey’s September 13 conversation with Ritchie occurred after the August 9\\n\\nshipment, it is irrelevant to showing Defendant’s intent on August 9. But even the July 26\\n\\nconversation, which followed months of Defendants’ regular sales of spice with XLR-11\\n\\nbut preceded the August 9 shipment, would not have tended to negate Defendants’\\n\\n 26\\n\\fknowledge of substantial similarity on August 9. This is because Cosey simply inspected\\n\\nthe Zencense facilities and did not discuss the chemical structure or effects of XLR-11 or\\n\\nJWH-018 with Defendants on July 26. In fact, Cosey stated in his deposition that he\\n\\ncould not verify Ritchie’s description of the spice’s contents on July 26 because he had\\n\\nnot yet seen a DEA lab report on the substance. Therefore, Cosey did not know whether\\n\\nthe spice contained XLR-11, and none of his comments to Defendants could have\\n\\nnegated their knowledge of whether their spice additive was substantially similar to\\n\\nJWH-018. Cosey’s proffered testimony is thus irrelevant, and the district court did not\\n\\nabuse its discretion in excluding it. See Fed. R. Evid. 401(a) (noting that evidence is\\n\\nrelevant if “it has any tendency to make a fact more or less probable than it would be\\n\\nwithout the evidence”). 14\\n\\n\\n\\n 14\\n To bolster their innocent intent argument, Defendants cite United States v.\\nMakkar, 810 F.3d 1139 (10th Cir. 2015), an out-of-circuit case in which the defendants\\nwere charged with distributing a controlled substance analogue via “incense.” Id. at\\n1147–48. To show they lacked knowledge of the substance’s chemical structure, those\\ndefendants proffered evidence that “they asked state law enforcement agents to test the\\nincense to assure its legality under state law—and that they offered to stop selling the\\nincense until the results came in.” Id. at 1147. The district court excluded the evidence,\\nbut the Tenth Circuit reversed, holding the defendant’s proffer was not “merely\\ncumulative” and characterizing it this way:\\n As a matter of common sense and our collective experience, we have a hard\\n time imagining more powerful proof that a defendant didn’t know the\\n chemical composition of a drug, and didn’t know it was substantially\\n similar to an unlawful substance, than evidence that he turned to law\\n enforcement for information about the drug’s composition and offered to\\n suspend sales until tests could be performed.\\nId. at 1147–48. Defendants here argue that because they, too, “turned to law\\nenforcement” for advice, see id. at 1148, Cosey’s testimony should have been admitted as\\nproof of their innocent intent.\\n(Continued)\\n 27\\n\\f We therefore affirm the district court’s exclusion of Cosey’s irrelevant testimony.\\n\\nAs any error in excluding it did not “affect the outcome of [the] case,” see Ferguson, 752\\n\\nF.3d at 619, it was harmless, and we hold the district court did not violate Defendants’\\n\\ncompulsory process rights by excluding Cosey from testifying.\\n\\n 2.\\n\\n a.\\n\\n Attorney McGee: In late July or early August 2012, after federal officials began\\n\\ninvestigating Zencense, Defendants contacted Florida attorney David McGee to represent\\n\\nthem. After conducting some preliminary research, McGee agreed to represent\\n\\nDefendants. They retained him on August 6, three days before the first charged shipment.\\n\\nAt points during McGee’s representation of Defendants, he consulted chemists about the\\n\\nchemical structures of XLR-11 and JWH-018, and several chemists opined to him that\\n\\n\\n\\n\\n Not only do Defendants rely on a case we need not follow, but their analogy is\\ncritically flawed. The Makkar defendants were only retailers of the incense and thus\\ndisputed their knowledge of the ingredients’ chemical structure and physiological effects.\\nThat is, they challenged the first of the two Analogue Act requirements the Government\\nhas to prove when it proceeds under the substantial similarity method of proof.\\nMcFadden, 823 F.3d at 223; see 21 U.S.C. § 802(32)(A). Here, Defendants were spice\\nproducers and are not challenging that they knew the chemical structure of XLR-11. They\\nadmit that they reformulated their spice to include XLR-11 based on their customers’\\ndemands and routinely acquired detailed lab reports identifying the spice’s composition.\\nDefendants are instead challenging the second element the Government must prove: that\\nDefendants knew (based on its chemical structure and physiological effects) that XLR-11\\nand JWH-018 were “substantially similar” within the meaning of 21 U.S.C.\\n§ 802(32)(A). Because Makkar’s holding addressed the first Analogue Act requirement,\\nnot the second, it has no bearing on our decision here.\\n\\n 28\\n\\fthe chemicals are not substantially similar. McGee kept Defendants apprised of his\\n\\nresearch.\\n\\n After Defendants were indicted, McGee represented them in pretrial proceedings\\n\\nbelow. During a hearing on the propriety of McGee’s joint representation of Defendants,\\n\\nthe district court asked him whether Defendants intended to assert the affirmative defense\\n\\nof advice of counsel. McGee responded that they would not use that defense because he\\n\\n“never” advised them that selling XLR-11 was legal:\\n\\n THE COURT: Well, you know, what are your main defenses in this case? I\\n don’t know whether you want to reveal your defense strategy—\\n\\n MR. McGEE: I have revealed my defense strategy to the government since\\n January of 2013. It has not changed, it will not change. They know what\\n our defense is.\\n\\n THE COURT: . . . . Is one of the potential defenses that they acted pursuant\\n to legal counsel?\\n\\n MR. McGEE: Not Mr. Miller or myself. There is a possibility that one of\\n the defenses will be another lawyer before us, not us, gave them advice\\n with regard to the legality of these substances. It was not Mr. Miller, it was\\n not myself . . . .\\n . . . . We have never given such advice and would not give such\\n advice.\\n\\nSupp. J.A. 12–13. The district court ultimately disqualified McGee from jointly\\n\\nrepresenting Defendants, and they each retained new counsel.\\n\\n Yet when Defendants secured new counsel, one of the affirmative defenses raised\\n\\nwas reliance on McGee’s legal advice that XLR-11 was not substantially similar to JWH-\\n\\n018 because some chemists had reached that conclusion and told McGee. The district\\n\\ncourt prohibited Defendants from asserting that defense because they could not establish\\n\\n\\n 29\\n\\fits three elements: sharing relevant facts with counsel, receiving legal advice based on\\n\\nthose facts, and reasonably relying on that advice. See United States v. Perry, 30 F. Supp.\\n\\n3d 514, 541 (E.D. Va. 2014) (listing the defense’s elements). The district court found that\\n\\nDefendants did not disclose all relevant facts to McGee because an Analogue Act\\n\\ndistribution offense requires distribution of a product “for human consumption,” see\\n\\nMcFadden, 823 F.3d at 223, but Defendants labeled theirs “[n]ot for human\\n\\nconsumption,” J.A. 633, and never told McGee consumers were smoking it. Further,\\n\\nDefendants “consulted counsel after [they were] already engaged in selling spice . . . with\\n\\nUR-144 and XLR-11 for human consumption,” so they did not sell it in reliance on\\n\\nMcGee’s advice. Memorandum Order at 7, United States v. Ritchie, No. 4:15-cr-18-RAJ-\\n\\nLRL (E.D. Va. Oct. 3, 2016), ECF No. 462.\\n\\n After the district court barred reliance on the advice of counsel defense,\\n\\nDefendants changed course again and offered McGee’s testimony for the same purpose\\n\\nthey alternatively proposed for Agent Cosey’s. That is, outside of the affirmative defense,\\n\\nthe same evidence was proffered as general evidence of Defendants’ lack of mens rea in\\n\\nselling XLR-11. Defendants now represented McGee’s discussions with the chemists as\\n\\nshowing they relied on their attorney’s belief that their August 9 spice shipment was legal\\n\\nbecause it did not contain a controlled substance analogue.\\n\\n The district court excluded McGee’s testimony as hearsay, explaining that “the\\n\\nstate-of-mind exception [to hearsay] goes to the declarant and doesn’t go to this\\n\\n\\n\\n\\n 30\\n\\fdefendant.” 15 J.A. 350. Moreover, the court ruled, McGee’s testimony, like Cosey’s, was\\n\\nirrelevant because Defendants were already selling XLR-11 when McGee consulted the\\n\\nchemists. In the court’s view, “if the point is to show their state of mind at the time they\\n\\ncommenced the criminal conduct, and the criminal conduct commenced before that\\n\\nhearsay statement took place in the first place,” “it would be irrelevant.” J.A. 351.\\n\\n b.\\n\\n We disagree with the district court. As we understand Defendants’ argument, they\\n\\nsought to introduce McGee’s testimony to show they had an innocent state of mind when\\n\\nshipping XLR-11 on August 9. 16 If McGee timely transmitted to Defendants the\\n\\nchemists’ opinions as they claim, his testimony was not irrelevant; rather, it could have\\n\\nbeen probative of Defendants’ mens rea.\\n\\n According to Defendants, they shipped XLR-11 on August 9 and throughout the\\n\\nalleged conspiracy in part because they relied on the research of chemical experts whose\\n\\nopinions McGee relayed. In Defendants’ view, if McGee had consulted chemists who\\n\\ndetermined XLR-11 was substantially similar to JWH-018, told Defendants about those\\n\\nopinions before August 9, and Defendants trusted those opinions, “they would not have\\n\\nmade their sale to [the retailer in Virginia] on August 8, 2012, or at any time thereafter.”\\n\\n\\n 15\\n The district court was referring to Ritchie, who proffered McGee’s testimony,\\nbut the ruling applied to both Defendants.\\n 16\\n It is unclear to what extent Defendants still seek to press an advice of counsel\\ndefense, but we believe the district court properly barred reliance on that affirmative\\ndefense because Defendants could not support it. Consequently, we will examine\\nMcGee’s testimony not as legal advice, but as general testimony bearing on Defendants’\\nstate of mind on August 9.\\n\\n 31\\n\\fOpening Br. 43. We agree with Defendants that McGee’s testimony about the chemists’\\n\\nopinions could be probative of their knowledge of the substantial similarity of XLR-11\\n\\nand JWH-018 on August 9.\\n\\n Defendants’ argument fails, of course, if McGee consulted chemical experts or\\n\\nreported his findings after the August 9 shipment. If Defendants received information\\n\\nfrom McGee later, his testimony could not provide context for Defendants’ state of mind\\n\\nat the time of the alleged crime. But the record is unclear about when McGee consulted\\n\\nthe chemists and when or what he informed Defendants that he had learned, so we are\\n\\nunable to conclude on this record that his exclusion from trial was harmless. It is possible\\n\\nthat McGee’s testimony, if the jury believed it, could have affected the outcome of the\\n\\ncase. Ferguson, 752 F.3d at 619. If so, the district court abused its discretion in excluding\\n\\nhim.\\n\\n Therefore, we vacate the district court’s exclusion of McGee’s testimony and\\n\\nremand for further proceedings consistent with this opinion. Defendants must be allowed\\n\\nto develop the evidence on the narrow issue of when McGee consulted chemists about the\\n\\nsimilarity of XLR-11 and JWH-018 for Defendants’ benefit, when McGee informed\\n\\nDefendants about the chemists’ research, and what he told them. We note, however, that\\n\\nMcGee’s testimony, if a factual basis is established, shall be limited to the issue of the\\n\\nchemists’ research and no other subject. Further, our holding is consistent with the rules\\n\\nof hearsay in that McGee can only relay the chemists’ opinions if they are offered not for\\n\\ntheir truth, but solely for their effect on Defendants’ state of mind. See Fed. R. Evid.\\n\\n801(c) (defining hearsay to include only statements “offer[ed] in evidence to prove the\\n\\n 32\\n\\ftruth of the matter asserted in the statement”). McGee may testify as to facts only. He\\n\\nmay testify about his timely conversations with chemists and with Defendants, but he\\n\\nmay not speculate as to what Defendants may have been thinking at the time of their\\n\\nalleged criminal acts.\\n\\n 3.\\n\\n a.\\n\\n Ritchie: Finally, if allowed, Ritchie would have testified that he and Galecki\\n\\nshipped the spice on August 9 with an innocent state of mind because they consulted with\\n\\nattorneys—including McGee—and chemists and “relied on [their advice] in going\\n\\nforward and operated under the assumption that [XLR-11 and JWH-018] were not\\n\\nsubstantially similar.” J.A. 352. The district court excluded Ritchie’s testimony as\\n\\nhearsay because others’ statements could not reveal Ritchie’s state of mind and the\\n\\ntestimony did not fit into the state-of-mind hearsay exception. See Fed. R. Evid. 803(3).\\n\\nThe court saw Defendants’ maneuver as another “backdoor” attempt to inject evidence\\n\\ninto the trial that did not meet the threshold for one of the unsupported affirmative\\n\\ndefenses. J.A. 357.\\n\\n b.\\n\\n To the extent Ritchie’s testimony about Defendants’ state of mind on August 9 is\\n\\nbased on his conversations with McGee, it similarly requires sufficient evidence\\n\\nregarding the content and timing of the consultation. As discussed above, if there is\\n\\ninsufficient foundation shown on remand to permit McGee’s testimony about the\\n\\nchemists he consulted, then Ritchie’s testimony on this issue must also be excluded.\\n\\n 33\\n\\fRitchie, of course, can still testify as to his own state of mind without reference to\\n\\nMcGee. We therefore vacate the district court’s exclusion of Ritchie’s testimony on this\\n\\npoint and remand for the district court to reexamine Ritchie’s testimony in light of any\\n\\nfurther development of McGee’s testimony, as limited above. As in McGee’s testimony,\\n\\nany discussion of the chemists’ opinions in Ritchie’s testimony can only be offered for its\\n\\neffect on Defendants’ state of mind and not for its truth. See Fed. R. Evid. 801(c).\\n\\n\\n\\n IV.\\n\\n As a final matter, Defendants have requested we reassign this case on remand to a\\n\\ndifferent district judge, but they have alleged no express bias by the sitting judge.\\n\\nReassignment is only warranted in “unusual circumstances,” none of which exist here.\\n\\nUnited States v. North Carolina, 180 F.3d 574, 582–83 (4th Cir. 1999) (internal quotation\\n\\nmarks omitted). We have examined the record and found no express bias, nor have we\\n\\nseen any indication that the district judge would jeopardize the “fundamental fairness” of\\n\\nany continued proceedings in this case. See G.G. ex rel. Grimm v. Gloucester Cty. Sch.\\n\\nBd., 822 F.3d 709, 726 (4th Cir. 2016), vacated and remanded on other grounds by 137\\n\\nS. Ct. 1239 (2017) (mem.). Accordingly, we decline to reassign the case on remand. 17\\n\\n\\n\\n\\n 17\\n Our rulings in this case expand Defendants’ options for presenting evidence in a\\nnew trial. Nonetheless, Defendants are under no requirement to present the items of\\nevidence discussed above, nor is the district court required to make any further specific\\nevidentiary decisions save for those consistent with this opinion.\\n\\n 34\\n\\f V.\\n\\nFor the reasons stated above, the district court’s decisions are\\n\\n AFFIRMED IN PART, REVERSED IN PART,\\n VACATED, AND REMANDED.\\n\\n\\n\\n\\n 35\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4420956/\", \"author_raw\": \"AGEE, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"AGEE"},"judge2":{"kind":"string","value":"FLOYD"},"judge3":{"kind":"string","value":"DUNCAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4643703/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Benjamin GALECKI, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Charles Burton Ritchie, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-07-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-4727\n\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff – Appellee,\n\n v.\n\nBENJAMIN GALECKI,\n\n Defendant – Appellant.\n\n\n\n\n No. 18-4730\n\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff – Appellee,\n\n v.\n\nCHARLES BURTON RITCHIE,\n\n Defendant – Appellant.\n\n\n\nAppeals from the United States District Court for the Eastern District of Virginia, at\nNewport News. Raymond A. Jackson, District Judge. (4:15-cr-00018-RAJ-LRL-1; 4:15-\ncr-00018-RAJ-LRL-2)\n\fArgued: March 19, 2019 Decided: July 29, 2019\n\n\nBefore AGEE and FLOYD, Circuit Judges, and DUNCAN, Senior Circuit Judge.\n\n\nAffirmed in part, reversed in part, vacated, and remanded by published opinion. Judge\nAgee wrote the opinion, in which Judge Floyd and Senior Judge Duncan joined.\n\n\nARGUED: J. Lloyd Snook, III, SNOOK & HAUGHEY, P.C., Charlottesville, Virginia,\nfor Appellants. Eric Matthew Hurt, OFFICE OF THE UNITED STATES ATTORNEY,\nNewport News, Virginia, for Appellee. ON BRIEF: Christian L. Connell, Norfolk,\nVirginia, for Appellant Benjamin Galecki. G. Zachary Terwilliger, United States\nAttorney, Alexandria, Virginia, Kevin Hudson, Assistant United States Attorney,\nOFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for\nAppellee.\n\n\n\n\n 2\n\fAGEE, Circuit Judge:\n\n A federal jury convicted Benjamin Galecki and Charles Burton Ritchie\n\n(“Defendants”) of charges related to a conspiracy to distribute controlled substance\n\nanalogues. Defendants then appealed to this Court for the first time, challenging several\n\nof the trial court’s rulings, including the failure to compel a Drug Enforcement\n\nAdministration (DEA) chemist to testify on their behalf, the exclusion of certain\n\nevidence, and the formulation of a jury instruction. In that appeal, we upheld the jury\n\ninstruction, but vacated Defendants’ convictions and remanded the case for the district\n\ncourt to determine whether the DEA chemist’s testimony was material to their case.\n\nUnited States v. Ritchie, 734 F. App’x 876 (4th Cir. 2018) (Ritchie II). On remand, the\n\ndistrict court held the chemist’s testimony was not material and declined to compel his\n\npresence at trial. United States v. Ritchie, No. 4:15-cr-18, 2018 WL 4693811 (E.D. Va.\n\nSept. 28, 2018) (Ritchie III). Defendants now appeal that decision and renew several\n\nother evidentiary challenges that we declined to address in the prior appeal. As discussed\n\nbelow, we affirm in part, reverse in part, vacate Defendants’ convictions, and remand for\n\na new trial.\n\n\n\n I.\n\n A.\n\n Federal law prohibits the distribution of a controlled substance analogue. See 21\n\nU.S.C. §§ 813, 841(a)(1). The Analogue Act defines “controlled substance analogue” as\n\n\n\n 3\n\f a substance—\n\n (i) the chemical structure of which is substantially similar to the\n chemical structure of a controlled substance in schedule I or II;\n\n (ii) which has a stimulant, depressant, or hallucinogenic effect on the\n central nervous system that is substantially similar to or greater than the\n stimulant, depressant, or hallucinogenic effect on the central nervous\n system of a controlled substance in schedule I or II; or\n\n (iii) with respect to a particular person, which such person represents or\n intends to have a stimulant, depressant, or hallucinogenic effect on the\n central nervous system that is substantially similar to or greater than the\n stimulant, depressant, or hallucinogenic effect on the central nervous\n system of a controlled substance in schedule I or II.\n\n21 U.S.C. § 802(32)(A). Because an Analogue Act conviction requires proof of a\n\ndefendant’s knowledge and intent, that is, his mens rea, the Government must show that\n\nhe knew either that the substance at issue is a controlled substance or that it is\n\n“substantially similar” to a controlled substance in both chemical structure and\n\nphysiological effects. See id. This Court has explained that a person has violated the\n\nAnalogue Act if he\n\n (1) distributed a substance that had the chemical structure of an analogue\n and the actual, intended, or claimed physiological effects of an analogue;\n (2) intended that the substance be used for human consumption; and (3)\n knew either the legal status of the substance, or the chemical structure and\n physiological effects of that substance.\n\nUnited States v. McFadden, 823 F.3d 217, 223 (4th Cir. 2016).\n\n B.\n\n From 2010 to 2013, Defendants operated Zencense Incenseworks, LLC, which\n\nhad facilities in Pensacola, Florida, and Las Vegas, Nevada. Zencense manufactured and\n\nsold a substance commonly called “spice,” which contained a mix of crushed leaves and\n\n 4\n\fchemical additives. Consumers would generally smoke the spice, but Defendants\n\npackaged the product as “incense” and labeled it “Not for human consumption.” J.A. 633.\n\nIn late March or early April 2012, Defendants began using the chemical additives XLR-\n\n11 and UR-144 in their manufactured spice. These additives were not on the controlled\n\nsubstances drug schedule during the time period of the alleged conspiracy (February 8,\n\n2012 to April 30, 2013). 1 Defendants shipped their product around the country for sale by\n\nvarious retailers, including one in Hampton Roads, Virginia, which received a shipment\n\non August 9, 2012. 2\n\n The Government had begun investigating Zencense’s operations because it\n\nsuspected Defendants’ “incense” was actually synthetic marijuana, i.e., a substance\n\n“designed and intended to have an effect similar to controlled substances” (marijuana)\n\nwhen smoked. J.A. 110. In the Government’s view, this physiological effect, coupled\n\nwith the chemical similarity of the additive XLR-11 to the controlled chemical in\n\nmarijuana, JWH-018, makes Defendants’ spice a controlled substance analogue within\n\nthe meaning of 21 U.S.C. § 802(32)(A). On that basis, the Government charged\n\nDefendants with conspiring to distribute controlled substances and controlled substance\n\nanalogues, in violation of 21 U.S.C. §§ 846, 813; using a communication facility to\n\npromote unlawful activity, in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2; using a\n\nfacility in interstate commerce to promote unlawful activity, in violation of 18 U.S.C.\n\n 1\n XLR-11 and UR-144 have been treated as identical substances in this case.\nUnless otherwise stated, reference to one is reference to the other.\n 2\n Though the shipment may have occurred on August 8, 2012, the invoice is dated\nAugust 9, so we rely on that date.\n\n 5\n\f§§ 1952(a)(3), 2; and distributing controlled substances and controlled substance\n\nanalogues, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2.\n\n At Defendants’ joint trial, the Government had to prove a scientific element as to\n\nthe spice and a mens rea element as to each Defendant. To establish the scientific\n\nelement, the Government had to show that XLR-11 in the spice had properties\n\n“substantially similar” to the properties of JWH-018 in marijuana. See 21 U.S.C.\n\n§ 802(32)(A). And to establish the mens rea element, the Government had to satisfy one\n\nof two methods of proof: either that Defendants knew XLR-11 was a controlled\n\nsubstance analogue or that they knew the “chemical structure and physiological effects”\n\nof XLR-11 were substantially similar to those of JWH-018. See McFadden, 823 F.3d at\n\n223. The Government proceeded under the second method of proof and attempted to\n\n“establish that ‘the defendant knew the specific analogue he was dealing with, even if he\n\ndid not know its legal status as an analogue.’” Id. (quoting McFadden v. United States,\n\n135 S. Ct. 2298, 2305 (2015)). “Under this second method of proof, knowledge of the\n\nsubstance’s chemical structure and physiological effects is sufficient to support a\n\nconviction.” Id. Defendants challenged both the scientific and mens rea elements of the\n\nGovernment’s case, contending XLR-11 is not chemically similar to JWH-018 and\n\nasserting they lacked knowledge of any similarity between the structures or physiological\n\neffects of the two chemicals.\n\n Defendants’ first trial resulted in a hung jury on each count. During a second trial,\n\nthe jury indicated it was at an impasse on the issue of substantial similarity, and the\n\n\n\n 6\n\fdistrict court issued an Allen charge. 3 The jury then convicted Defendants of all counts.\n\n C.\n\n Defendants appealed, challenging a number of the trial court’s rulings. Our\n\nopinion addressed only two issues: the court’s refusal to compel DEA chemist Dr. Arthur\n\nBerrier to testify for Defendants and its formulation of a mens rea jury instruction. See\n\nRitchie II, 734 F. App’x at 878–81.\n\n Defendants framed Dr. Berrier’s exclusion from trial as a Sixth Amendment\n\ncompulsory process violation. See id. at 878–79. Under the Sixth Amendment, a criminal\n\ndefendant “enjoy[s] the right . . . to have compulsory process for obtaining witnesses in\n\nhis favor.” U.S. Const. amend. VI. Though “not absolute,” United States v. Prince-Oyibo,\n\n320 F.3d 494, 501 (4th Cir. 2003), this right is violated when a defendant is “arbitrarily\n\ndeprived of testimony that would have been relevant and material, and vital to the\n\ndefense,” United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (internal\n\nquotation marks, alterations, and emphases omitted). To establish a Sixth Amendment\n\nviolation, a criminal defendant “must at least make some plausible showing of how [the\n\nexcluded] testimony would have been both material and favorable to his defense.” Id.\n\n Exercising their compulsory process rights prior to trial, Defendants issued a\n\n“Touhy request” 4 to the Government along with a subpoena for Dr. Berrier. 5 The\n\n\n\n 3\n Allen v. United States, 164 U.S. 492 (1896). See United States v. Cornell, 780\nF.3d 616, 625 (4th Cir. 2015) (explaining that an Allen charge is a supplemental jury\ninstruction given “when the jury has reached an impasse in its deliberations and is unable\nto reach a consensus”).\n\n 7\n\fGovernment denied the Touhy request, claiming Dr. Berrier’s opinion formed in the\n\ncourse of his employment with the DEA was covered by the Government’s deliberative\n\nprocess privilege. See Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532\n\nU.S. 1, 8 (2001) (noting the deliberative process privilege covers written “opinions,\n\nrecommendations and deliberations comprising part of a process by which governmental\n\ndecisions and policies are formulated” (internal quotation marks omitted)). The district\n\ncourt agreed with the Government and quashed the subpoena, thereby rejecting\n\nDefendants’ compulsory process arguments. When Defendants challenged the district\n\ncourt’s privilege ruling on appeal, we held that the Government had waived its privilege\n\nas to Dr. Berrier’s XLR-11 opinion because he had offered it in other cases and made it\n\npublicly available online. Ritchie II, 734 F. App’x at 879. But we then noted that\n\n [t]he absence of a privilege does not end the inquiry, however, because the\n Defendants’ compulsory process right extends only to “favorable” and\n “material” witnesses and evidence. Dr. Berrier’s testimony is clearly\n favorable to the Defendants, but the district court did not consider\n materiality, and we leave it to that court to determine in the first instance. If\n Dr. Berrier’s testimony is material and otherwise admissible, the\n\n\n 4\n United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). Under 5 U.S.C. § 301\nand Touhy, federal agencies may regulate their employees’ ability to testify about their\nwork, United States v. Soriano-Jarquin, 492 F.3d 495, 504 (4th Cir. 2007), but criminal\ndefendants may seek such agency employees’ testimony at trial via what are now termed\n“Touhy requests,” see id.; Smith v. Cromer, 159 F.3d 875, 879 (4th Cir. 1998) (describing\nthe interplay of Touhy requests and witness subpoenas).\n 5\n Dr. Berrier is no longer a DEA employee, but whether the district court properly\nexcluded his testimony depends on the facts before the district court when Defendants\nissued the Touhy request to the Government. See Hertz v. Luzenac Am., Inc., 370 F.3d\n1014, 1019 (10th Cir. 2004) (“As a reviewing court, we may only ‘evaluate the trial\ncourt’s decision from its perspective when it had to rule and not indulge in review by\nhindsight.’” (quoting Old Chief v. United States, 519 U.S. 172, 182 n.6 (1997))).\n\n 8\n\f Defendants’ Sixth Amendment rights were violated by his exclusion from\n the trial.\n\nId.\n\n We vacated Defendants’ convictions and remanded to the district court the initial\n\ndetermination of whether Dr. Berrier’s testimony would be material. Further, we\n\nexercised our discretion to address Defendants’ challenge to the jury instruction as that\n\nissue was “likely to recur” and then affirmed the district court’s use of the instruction. Id.\n\n(quoting United States ex rel. Drakeford v. Tuomey Healthcare Sys., Inc., 675 F.3d 394,\n\n406 (4th Cir. 2012)).\n\n On remand, the district court concluded that Dr. Berrier’s testimony was not\n\nmaterial to Defendants’ case because it would have been “merely cumulative” to\n\ntestimony from Defendants’ two other expert chemists. Ritchie III, 2018 WL 4693811, at\n\n*4. The district court determined that those chemists used the same methods and came to\n\nthe same conclusion as Dr. Berrier, and that his “position at the DEA would not provide\n\nany new relevant information” to the jury. Id. The court accordingly held that Dr.\n\nBerrier’s exclusion from the trial did not violate Defendants’ Sixth Amendment\n\ncompulsory process rights.\n\n Defendants now bring a second appeal. 6 7\n\n\n\n\n 6\n Unless otherwise stated, all references to rulings made “at trial” refer to the\ndistrict court’s rulings applicable to Defendants’ second trial, which occurred before the\nfirst appeal and remand.\n 7\n While it is unclear whether Galecki joined all of Ritchie’s arguments below, he\nhas joined Ritchie’s briefs on appeal and has not indicated that he departs from any of\nRitchie’s arguments. We will therefore assume that Galecki joins all of Ritchie’s\n(Continued)\n 9\n\f II.\n\n A.\n\n To challenge the scientific element of the Government’s case—that XLR-11 is\n\nsubstantially similar to JWH-018—Defendants sought to compel the expert testimony of\n\nDr. Berrier, a Senior Research Chemist in the DEA’s Office of Forensic Sciences\n\n(“OFS”). Dr. Berrier would have opined that XLR-11 and JWH-018 are not substantially\n\nsimilar in chemical structure. While another DEA office, the Drug and Chemical\n\nEvaluation Section (“DRE”) in the Office of Diversion Control, ultimately classifies\n\ncontrolled substance analogues, it regularly consults the OFS before making its decisions.\n\nAs an OFS chemist, Dr. Berrier routinely analyzed synthetic substances for the DRE and\n\ngave his opinion on their substantial similarity to controlled substances. In the spring of\n\n2012, the DRE asked Dr. Berrier to compare UR-144 to JWH-018. 8 He concluded that\n\nthey are not substantially similar in chemical structure. But ultimately, after the charged\n\nevents, the DRE determined that UR-144 and JWH-018 are substantially similar, making\n\nUR-144 a controlled substance analogue. The DEA formally added UR-144 and XLR-11\n\nto the controlled substances drug schedule in 2013, after the alleged conspiracy ended.\n\n\narguments. Moreover, where the district court’s rulings applied equally to Defendants\nbecause they were business partners in constant communication during the alleged\nconspiracy and did not seek severance of their joint trial, our holdings apply to both\nDefendants as well. See United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992) (“[I]t is\nmanifestly unjust to reverse the conviction of one co-defendant but to uphold the\nconviction of another co-defendant when the same error affected both defendants.”\n(internal quotation marks omitted)).\n 8\n Dr. Berrier analyzed UR-144 for the DRE, but it is undisputed that his opinion\nwould have applied to XLR-11 as well.\n\n 10\n\f Defendants argued that Dr. Berrier’s testimony was crucial to their case, as he was\n\na DEA synthetic cannabinoid expert with a dissenting view—a view demonstrating that\n\neven highly-trained Government employees disagreed about the substantial similarity of\n\nXLR-11 and JWH-018. Indeed, one of the Government’s expert witnesses at trial was Dr.\n\nJordan Trecki, a pharmacologist in the DRE section of the DEA who testified about the\n\neffects and substantial similarity of XLR-11 to JWH-018. As discussed above,\n\nDefendants unsuccessfully sought to compel Dr. Berrier’s testimony on their behalf.\n\n Barred from questioning Dr. Berrier, Defendants relied on the expert testimony of\n\ntwo chemistry professors, Drs. Croatt and Dudley, who gave the same opinion that Dr.\n\nBerrier would have given—an opinion that contradicted Dr. Trecki’s. During cross-\n\nexamination, the Government questioned Defendants’ “hired guns” about the\n\ncompensation they received for testifying. In convicting Defendants, the jury ultimately\n\nrejected Drs. Croatt and Dudley’s expert opinion about XLR-11 and JWH-018.\n\n B.\n\n In this appeal, we are reviewing the district court’s determination that Dr. Berrier’s\n\nexclusion from trial did not violate Defendants’ Sixth Amendment rights since his\n\ntestimony would have been cumulative and not material to their defense. We disagree and\n\ntherefore reverse the district court’s materiality finding, vacate Defendants’ convictions,\n\nand remand for a new trial. See United States v. Rhynes, 218 F.3d 310, 323 (4th Cir.\n\n2000) (en banc) (holding that a Sixth Amendment constitutional violation occurred and\n\nremanding for a new trial).\n\n\n\n 11\n\f C.\n\n Before addressing the materiality issue on the merits, we first note that it is unclear\n\nwhat standard of review applies to a materiality ruling in the Sixth Amendment context.\n\nWe and our sister circuits apply no uniform standard of review to either the issue of\n\nmateriality in a compulsory process challenge or to evidentiary issues underlying general\n\nSixth Amendment challenges.\n\n With regard to compulsory process claims, our sister circuits apply both the de\n\nnovo and abuse of discretion standards of review, even at times applying different\n\nstandards in the same circuit without explanation. Compare United States v. Tuma, 738\n\nF.3d 681, 688 (5th Cir. 2013) (reviewing compulsory process claim de novo), United\n\nStates v. Damra, 621 F.3d 474, 485 (6th Cir. 2010) (same), United States v. Bahamonde,\n\n445 F.3d 1225, 1228 (9th Cir. 2006) (same), and United States v. Serrano, 406 F.3d\n\n1208, 1214–15 (10th Cir. 2005) (same), with United States v. Ross, 703 F.3d 856, 877–78\n\n(6th Cir. 2012) (reviewing compulsory process claim for abuse of discretion), United\n\nStates v. Youngman, 481 F.3d 1015, 1017 (8th Cir. 2007) (same), and United States v.\n\nGary, 74 F.3d 304, 309–10 (1st Cir. 1996) (same). Within the compulsory process\n\ncontext, it is often unclear what standard of review applies to an underlying materiality\n\nissue like the one presented here.\n\n Not only that, but the circuits take a variety of approaches to reviewing Sixth\n\nAmendment claims that stem from issues like the exclusion of evidence or the denial of a\n\nmotion to continue. Compare United States v. Rivas, 831 F.3d 931, 934 (7th Cir. 2016)\n\n(reviewing an evidentiary ruling for abuse of discretion but reviewing the overarching\n\n 12\n\fSixth Amendment Confrontation Clause claim de novo), and United States v. Woodard,\n\n699 F.3d 1188, 1193–94 (10th Cir. 2012) (reviewing an evidentiary ruling de novo\n\nbecause the defendant framed it as a Confrontation Clause violation), with United States\n\nv. Blum, 62 F.3d 63, 67 (2d Cir. 1995) (reviewing an evidentiary ruling for abuse of\n\ndiscretion without announcing a separate standard of review for the overarching\n\ncompulsory process challenge).\n\n Consequently, when faced with an issue presented under the Sixth Amendment,\n\nour sister courts often decline to decide the standard of review question and instead\n\nanalyze the district court’s ruling under either standard. E.g., United States v. Epskamp,\n\nNo. 15-2028-cr, 2016 WL 4191126, at *2 (2d Cir. Aug. 5, 2016) (summary order)\n\n(affirming under either standard of review the district court’s refusal to postpone a trial\n\ndespite the government’s failure to secure testimony of an individual incarcerated outside\n\nthe United States); United States v. Ladoucer, 573 F.3d 628, 634–35 (8th Cir. 2009)\n\n(affirming under either standard of review the district court’s refusal to postpone a trial\n\ndespite a defense witness’s failure to appear).\n\n Another common approach we often employ is simply refraining from announcing\n\na separate standard of review for each issue. See United States v. Beyle, 782 F.3d 159,\n\n171 (4th Cir. 2015) (announcing no standard for reviewing the overarching compulsory\n\nprocess challenge and reviewing the district court’s refusal to compel witnesses for abuse\n\nof discretion); United States v. Woods, 710 F.3d 195, 200–02 (4th Cir. 2013) (doing the\n\nsame and reviewing the district court’s exclusion of testimony for abuse of discretion);\n\nUnited States v. Passaro, 577 F.3d 207, 221 (4th Cir. 2009) (doing the same and\n\n 13\n\freviewing the district court’s quashing of subpoenas to CIA officials for abuse of\n\ndiscretion); Soriano-Jarquin, 492 F.3d at 497, 501–02 (doing the same and reviewing the\n\ndistrict court’s denial of a motion to dismiss the indictment de novo); Cromer, 159 F.3d\n\nat 882–83 (doing the same and reviewing the district court’s grant of a protective order\n\nquashing subpoenas de novo); United States v. Espinoza, 641 F.2d 153, 159 (4th Cir.\n\n1981) (doing the same and reviewing the district court’s refusal to issue subpoenas for\n\nabuse of discretion).\n\n Here, the district court found Dr. Berrier’s testimony immaterial and then\n\nexcluded him from trial by declining to compel him to testify. The Parties seem to agree\n\nthat the exclusion of Dr. Berrier was an evidentiary ruling, which we review for abuse of\n\ndiscretion and harmlessness, United States v. McLean, 715 F.3d 129, 143 (4th Cir. 2013),\n\nbut they do not directly address the standards of review applicable to the underlying\n\nmateriality ruling or the overarching Sixth Amendment claim.\n\n When previously faced with a materiality question similar to the one Defendants\n\nnow present, we declined to decide it and instead affirmed under either standard of\n\nreview. United States v. Moussaoui, 382 F.3d 453, 473 n.22 (4th Cir. 2004) (“The parties\n\ndispute whether the materiality determinations by the district court [in a compulsory\n\nprocess claim] are reviewed de novo or for abuse of discretion. We do not decide this\n\nquestion . . . .”). And we need not decide this question here. Under either standard, we\n\nwould reverse the district court’s finding that Dr. Berrier’s testimony was not material\n\nand reverse its exclusion of his testimony. Therefore, we will refrain from announcing the\n\n\n\n 14\n\fstandard of review applicable to the underlying materiality determination or to the\n\noverarching Sixth Amendment compulsory process challenge.\n\n For conducting the materiality analysis on the merits, however, we do have clear\n\nguidance from the Supreme Court in Valenzuela-Bernal. 458 U.S. at 867–74. In that case,\n\nthe Court concluded the district court properly denied the defendant’s motion to dismiss\n\nthe indictment on compulsory process grounds because, although the Government had\n\nremoved potential defense witnesses from the country, the defendant had failed to\n\n“explain what material, favorable evidence the deported [witnesses] would have provided\n\nfor his defense.” Id. at 874. In deciding Valenzuela-Bernal, the Supreme Court noted that\n\nmateriality has several components: it must be exculpatory; it must be “not merely\n\ncumulative to the testimony of available witnesses;” it must present “a reasonable\n\nlikelihood that the testimony could have affected the judgment of the trier of fact;” and it\n\nmust be otherwise admissible. See id. at 873–74. A district court assessing the materiality\n\nof evidence must address these components in the context of the entire record. Id. at 874;\n\nsee Moussaoui, 382 F.3d at 472.\n\n D.\n\n The district court “assume[d] for the sake of argument that Dr. Berrier’s testimony\n\nmay have been admissible and exculpatory,” Ritchie III, 2018 WL 4693811, at *3, and\n\nrested its materiality decision on the testimony being cumulative. In particular, the court\n\ndetermined Dr. Berrier’s testimony would have been cumulative because Drs. Croatt and\n\nDudley gave the same opinion and used the same methods as Dr. Berrier. Because the\n\n\n\n 15\n\fjury had rejected the testifying experts’ opinion, the district court held that Dr. Berrier’s\n\nsimilar testimony would not have altered the trial’s outcome.\n\n We can easily affirm the district court’s decision on two of the components of\n\nmateriality, as Dr. Berrier’s testimony was indeed exculpatory and admissible. It was\n\nexculpatory because Defendants could have supported their case theory—that the\n\nsubstantial similarity of XLR-11 and JWH-018 was a difficult question—with evidence\n\nthat even highly-trained DEA scientists disagreed about the answer. His testimony also\n\nwould have been admissible because it was highly relevant and violated no Federal Rules\n\nof Evidence.\n\n But we disagree with the district court’s analysis of the “not merely cumulative”\n\ncomponent, as we conclude that Dr. Berrier’s testimony was qualitatively different from\n\nthe testimony of the other defense witnesses. In stark contrast to Drs. Croatt and Dudley,\n\nDr. Berrier was not paid outside his DEA employment to form his opinion about XLR-\n\n11’s chemical similarity to JWH-018. Nor would Defendants have paid him to testify at\n\ntrial. Consequently, the Government could not have impeached Dr. Berrier in front of the\n\njury for having a pecuniary motive for testifying. Dr. Berrier’s inability to be impeached\n\non that ground made his testimony unique and particularly relevant, not cumulative. See\n\nThomas v. Westbrooks, 849 F.3d 659, 666 (6th Cir. 2017) (noting “impeachment on the\n\nbasis of pecuniary bias is fundamentally different” from impeachment for other reasons). 9\n\n\n 9\n We do not comment on the possible subjects of impeachment available to the\nGovernment in cross-examining Dr. Berrier if he is called to testify at a new trial. That is\nfor the trial court to decide in the first instance.\n\n 16\n\f Also unlike Drs. Croatt and Dudley, Dr. Berrier could have rebutted the testimony\n\nof Dr. Trecki, the Government’s DEA expert, with his own knowledge of the DEA’s\n\nprocesses and analyses. His expert testimony, which diverged from Dr. Trecki’s, could\n\nhave shown the jury that the DEA’s own scientists could not agree on the substantial\n\nsimilarity of the chemicals at issue. Drs. Croatt and Dudley could not have provided that\n\ntype of rebuttal testimony.\n\n And finally, Dr. Berrier’s testimony was material to the chemical structure issue\n\nbecause presenting it to the jury could reasonably have resulted in a different trial\n\noutcome. The jurors struggled to decide whether XLR-11 is substantially similar to JWH-\n\n018, as indicated by their note to the district court that they were “basically hung on\n\nCount 1, substantially similar.” J.A. 2048. That note prompted the court to issue an Allen\n\ncharge, after which the jury convicted Defendants. Had Defendants presented testimony\n\nfrom someone who opined on that very issue in the course of his duties at the DEA, the\n\njury could have entertained reasonable doubt about whether XLR-11 and JWH-018 are\n\nsubstantially similar in chemical structure.\n\n The Government asserts that any error in excluding Dr. Berrier was harmless and\n\nthus does not warrant reversal. Not so. A constitutional error is harmless only “if it is\n\n‘clear beyond a reasonable doubt that a rational jury would have found the defendant\n\nguilty absent the error.’” United States v. Sayles, 296 F.3d 219, 223 (4th Cir. 2002)\n\n(quoting Neder v. United States, 527 U.S. 1, 18 (1999)). Here, the jury’s difficulty with\n\nthe substantial similarity issue suggests that Dr. Berrier’s testimony was “evidence upon\n\nwhich [the] jury could have reached a contrary finding.” See Rhynes, 218 F.3d at 323\n\n 17\n\f(internal quotation marks omitted). Defendants “genuinely contested” the substantial\n\nsimilarity of XLR-11 and JWH-018 at every turn, and Dr. Berrier was uniquely situated\n\n“to rebut much of the Government’s [scientific] evidence against [them].” See id.\n\n(internal quotation marks omitted); see also United States v. Yarbrough, 527 F.3d 1092,\n\n1103 (10th Cir. 2008) (holding the defendant’s “substantial rights were affected” when\n\n“the district court’s error deprived [him] of important evidence relevant to a sharply\n\ncontroverted question going to the heart of [his] defense”). Accordingly, we harbor doubt\n\nabout whether the jury would have convicted Defendants if Dr. Berrier had testified, and\n\nwe hold that his exclusion from trial was a Sixth Amendment violation that was “not\n\nharmless.” See Rhynes, 218 F.3d at 323. 10\n\n Even if Defendants would have made different strategic choices had Dr. Berrier\n\nbeen made available to them—for example, calling only one of the other expert\n\nchemists—the court improperly denied them the opportunity to present favorable,\n\nmaterial evidence. See Valenzuela-Bernal, 458 U.S. at 867. Under either the de novo or\n\nabuse of discretion standard of review, we hold that the district court wrongly quashed\n\n\n\n\n 10\n Since we hold the district court’s error was not harmless under the harmless\nerror standard applicable to constitutional decisions, it also was not harmless under the\nlower harmless error standard applicable to pure evidentiary decisions. See United States\nv. Ferguson, 752 F.3d 613, 618 (4th Cir. 2014) (contrasting the two harmless error\nthresholds and noting a pure evidentiary error is not harmless if it had a “‘substantial and\ninjurious effect or influence in determining the jury’s verdict’” (quoting Kotteakos v.\nUnited States, 328 U.S. 750, 776 (1946))).\n\n 18\n\fthe subpoena to Dr. Berrier. We therefore reverse the district court’s materiality ruling,\n\nvacate Defendants’ convictions and remand for a new trial. 11\n\n\n\n III.\n\n We now turn to the district court’s exclusion of certain defense evidence. To\n\nnegate the mens rea element of the Government’s case—that Defendants knew XLR-11\n\nwas substantially similar to JWH-018 in chemical structure and physiological effects—\n\nDefendants proffered evidence to demonstrate that they had innocent intent when\n\nshipping their spice to Virginia on August 9, 2012. The court excluded this evidence,\n\nwhich came from three sources: DEA Special Agent Claude Cosey, attorney David\n\nMcGee, and Defendant Ritchie. Defendants argue the exclusion of this evidence is\n\nreversible error. But before assessing the district court’s rulings, we will address three\n\npreliminary matters.\n\n A.\n\n 1.\n\n First, these issues are now before us for the second time. We exercise our\n\ndiscretion to address Defendants’ claims because we are remanding for a new trial and\n\n\n 11\n In any further proceedings, the Government has the option to grant the Touhy\nrequest as to Dr. Berrier, dismiss the indictment, or endure a sanction. See United States\nv. Rivera, 412 F.3d 562, 570 (4th Cir. 2005) (“If the evidence is material to the defense,\nthen the government must provide the evidence or, in most cases, dismiss the\nprosecution.”); Moussaoui, 382 F.3d at 476 (concluding that excluded witnesses’\ntestimony was material and noting “the choice is the Government’s whether to comply\nwith [the relevant] orders or suffer a sanction”).\n\n 19\n\fthe issues are “likely to recur on remand.” Drakeford, 675 F.3d at 406. The Government\n\nincorrectly argues that Defendants waived the undecided claims from the first appeal\n\nbecause they did not press those claims in the district court on remand. On the contrary,\n\nDefendants had no opportunity to reassert their claims in the district court before the\n\ncurrent appeal, given the limited remand and the district court’s materiality ruling. Our\n\ndecision to “not address” every issue in the first appeal, Ritchie II, 734 F. App’x at 879\n\nn.7, had no bearing on the merits of the unaddressed claims. We created no “law of the\n\ncase” as to them and we will address in turn the claims Defendants have raised again in\n\nthis appeal. See Brittingham v. Jenkins, No. 91-1245, 1992 WL 172092, at *5 & n.4 (4th\n\nCir. July 23, 1992) (unpublished table decision) (per curiam). 12\n\n 2.\n\n Second, although we generally review evidentiary rulings for abuse of discretion,\n\nMcLean, 715 F.3d at 143, Defendants ask us to review the district court’s exclusion of the\n\nproffered testimony of Cosey and McGee de novo because it arises in the context of a\n\nSixth Amendment claim. 13 As noted above, we often analyze trial court rulings\n\nunderlying Sixth Amendment claims without announcing a separate standard of review\n\nfor the overarching constitutional challenge. We will do likewise here, reviewing the\n\ndistrict court’s exclusions of the Cosey and McGee evidence for abuse of discretion and\n\n\n 12\n As for Defendants’ renewed mens rea jury instruction claim, however, we have\nalready established that the district court properly instructed the jury. Ritchie II, 734 F.\nApp’x at 879–81. We will not disturb that decision, which is the law of the case.\n 13\n Defendants have not framed the exclusion of Ritchie’s testimony as a Sixth\nAmendment violation, so we will review that evidentiary ruling for abuse of discretion.\n\n 20\n\fharmlessness. See McLean, 715 F.3d at 143. Even if we undertook a de novo review as to\n\nthese two witnesses, however, our decisions would not change.\n\n 3.\n\n Third, we must address Defendants’ argument that they should have been allowed\n\nto present evidence of their innocent intent outside the confines of a recognized\n\naffirmative defense. In an effort to circumvent the district court’s rejection of their\n\nvarious affirmative defenses, Defendants contend that the evidence in question is\n\nnonetheless admissible to demonstrate their innocent intent. In contrast to an affirmative\n\ndefense, which “excuses punishment for a crime the elements of which have been\n\nestablished and admitted,” United States v. Thompson, 554 F.3d 450, 452 n.2 (4th Cir.\n\n2009) (internal quotation marks omitted), an innocent intent defense negates the mens rea\n\nelement of the charged offenses. However, this Court has not previously permitted an\n\ninnocent intent defense and we need not determine whether to do so here in order to\n\nresolve this appeal.\n\n We understand that at least two district courts examining similar facts to those\n\nbefore us have allowed defendants to present innocent intent evidence, even when that\n\nevidence was insufficient to support an affirmative defense. See United States v. Way,\n\nNo. 1:14–cr–00101–DAD–BAM–1, 2018 WL 3062159, at *1–3 (E.D. Cal. June 19,\n\n2018) (compelling Agent Cosey to testify about his conversations with Ritchie as\n\nevidence of defendant Way’s innocent intent in facilitating Zencense’s operations);\n\nUnited States v. Ritchie, No. 2:15-cr-00285-APG-PAL, 2018 WL 6580570, at *3–4 (D.\n\nNev. Dec. 13, 2018) (allowing defendants Ritchie and Galecki to present evidence of\n\n 21\n\fAgent Cosey’s conversations with Ritchie to demonstrate their innocent intent). Those\n\ndecisions, of course, are not precedential or binding on us.\n\n Nor are decisions from our sister circuits binding, and only one of those courts has\n\nexpressly recognized the innocent intent defense. See United States v. Alvarado, 808 F.3d\n\n474, 486 (11th Cir. 2015) (explaining a defendant may “effectively backdoor the rejected\n\n[public authority] defense by testifying that he genuinely believed” that the government\n\ndirected and approved of his conduct); United States v. Baptista-Rodriguez, 17 F.3d\n\n1354, 1368 n.18 (11th Cir. 1994) (collecting cases); see also United States v. Xiong, 914\n\nF.3d 1154, 1159–60 (8th Cir. 2019) (leaving undisturbed the district court’s admittance\n\nof innocent intent defense evidence even though it did not support the public authority\n\nand entrapment by estoppel affirmative defenses). The Eleventh Circuit has also noted\n\nthe uniqueness of its position, observing that it “may be the only circuit to explicitly\n\nallow an innocent intent defense in this context.” Alvarado, 808 F.3d at 487. Moreover,\n\nthe Second Circuit has criticized the Eleventh Circuit’s view as an “‘unwarranted\n\nextension’” of the established affirmative defenses. United States v. Giffen, 473 F.3d 30,\n\n43 (2d Cir. 2006) (quoting United States v. Wilson, 721 F.2d 967, 975 (4th Cir. 1983), in\n\nwhich we affirmed the district court’s refusal to instruct the jury on the “good faith”\n\ndefense of reliance on official authority because the evidence did not support it). In the\n\nSecond Circuit’s view, allowing defendants to assert an innocent intent defense would\n\n“‘grant any criminal carte blanche to violate the law should he subjectively decide’” that\n\nhe served some higher, innocent purpose, a lenience which would “swallow the actual\n\n\n\n 22\n\fpublic authority and entrapment-by-estoppel defenses.” Id. (quoting Wilson, 721 F.2d at\n\n975).\n\n We thus are not alone in hesitating to recognize the innocent intent defense. But\n\nsetting aside the limited value of those decisions, we need not decide here whether to\n\npermit an innocent intent defense in this Circuit because we can resolve Defendants’\n\narguments apart from that defense.\n\n B.\n\n Finally, we come to the merits of Defendants’ evidentiary challenges, bearing in\n\nmind that we may only assess whether the evidence was properly excluded for the reason\n\nDefendants proffered it—to negate the mens rea element of the Government’s case. See\n\nRamming Real Estate Co. v. United States, 122 F.2d 892, 893 (8th Cir. 1941) (“Where a\n\nlitigant seeks a reversal upon a ruling of the court rejecting evidence offered for a specific\n\npurpose, he [cannot] in the appellate tribunal change . . . the ground or theory upon which\n\nhe asked the lower court to admit the testimony.”); accord Shepard v. United States, 290\n\nU.S. 96, 102–03 (1933). For the reasons below, we hold that the district court did not\n\nabuse its discretion in excluding Cosey’s testimony and affirm that evidentiary ruling.\n\nWith regard to McGee’s and Ritchie’s testimony, however, we vacate the district court’s\n\nexclusion of that evidence and remand for further proceedings.\n\n 1.\n\n a.\n\n Agent Cosey: On July 25, 2012, law enforcement officers inspected Zencense’s\n\nproduction warehouse in Las Vegas, Nevada. Agent Cosey did not participate in that\n\n 23\n\f“raid,” but heard about it and called Ritchie, who invited him to visit the Zencense\n\nfacility on Burgess Road in Pensacola, Florida. Cosey met Ritchie there the next day.\n\nRitchie showed him the facility, described the spice manufacturing and packaging\n\nprocess, identified the spice’s chemical additives, and gave Cosey lab reports and spice\n\nsamples. At one point Ritchie said to Cosey that “if [Cosey] told [Ritchie] he was doing\n\nanything illegal, he would close it down that day.” J.A. 2087. Cosey testified in his\n\ndeposition that he did not know at that time whether the spice contained a controlled\n\nsubstance or analogue and he offered no opinion to Ritchie that what he was doing was\n\neither legal or illegal.\n\n Cosey and Ritchie met again in Pensacola on September 13. Along with other law\n\nenforcement officers, Cosey inspected a Zencense facility on Copter Road with Ritchie,\n\nwho also met privately with Cosey and other officers and obliquely discussed the legality\n\nof his business. Ritchie said to them, “I know if law enforcement wants to put somebody\n\nout of business that’s not doing anything illegal, there’s means to do it.” J.A. 2101. He\n\nreiterated that selling Zencense’s spice was “not illegal,” J.A. 2102, but told Cosey “that\n\nif his products were made illegal, if those additives in his products were made illegal, that\n\nhe would destroy the product right then and there.” J.A. 2109–10. Cosey responded, “If\n\nwhat you are producing and distributing is not a controlled substance, I cannot—law\n\nenforcement cannot and will not engage—or interfere in your, you know, ability to\n\nconduct commerce.” J.A. 2101.\n\n The officers then drove to Zencense’s Burgess Road location and Ritchie\n\ncontinued his conversation with Cosey and the officers by asking, “Am I going to\n\n 24\n\fcontinue to be looked at, targeted by law enforcement?” J.A. 2106. Cosey responded,\n\n“While what you are doing may be legal now, it could change in the future.” J.A. 2106.\n\nHe further explained, “[J]ust because something is legal today doesn’t mean it might not\n\nbe illegal in the future, because the compounds are constantly—they are adding\n\ncompounds to the banned list all the time.” J.A. 2107.\n\n Before trial, Defendants sought, through a Touhy request, to compel Cosey to\n\ntestify about these conversations to establish the affirmative defense of entrapment by\n\nestoppel. See United States v. Clark, 986 F.2d 65, 69 (4th Cir. 1993) (“The defense of\n\nentrapment by estoppel is available when a government official tells the defendant that\n\ncertain activity is legal, the defendant commits the activity in reasonable reliance on that\n\nadvice, and prosecution for the conduct would be unfair.”). The district court declined to\n\ncompel Cosey’s testimony, holding that the proffered evidence was insufficient to\n\nestablish the entrapment by estoppel defense because the spice business had been in full\n\nswing for months when Ritchie first talked to Cosey. The court explained that the\n\nelement of reasonable reliance was missing: “[Y]ou cannot rely on something that\n\nhappened seven months later to try to raise the suggestion that there was some reliance on\n\nsomething the government said . . . when the illegal conduct is up and running seven\n\nmonths before.” J.A. 356–57.\n\n In light of this ruling, Defendants changed course and proffered the same\n\ntestimony as general evidence that they lacked the mens rea required to violate the\n\nAnalogue Act. They argued that on August 9, the date of the first charged spice shipment\n\nto Virginia, they believed distributing spice containing XLR-11 was legal because Cosey\n\n 25\n\fnever told Ritchie on July 26 that doing so was illegal. The district court denied\n\nDefendants’ alternate proffer as a “backdoor way to circumvent the Court’s ruling” and\n\nreiterated that Cosey’s testimony was inadmissible because he spoke to Ritchie after the\n\nspice enterprise was fully operational. J.A. 357.\n\n b.\n\n We affirm the district court’s exclusion of Cosey’s testimony because it was\n\nirrelevant in two ways. First, Cosey never indicated that selling XLR-11 was legal. Each\n\ntime Ritchie asked whether his business was lawful, Cosey responded noncommittally,\n\nsaying things like, “If what you are producing and distributing is not a controlled\n\nsubstance, . . . law enforcement cannot and will not . . . interfere in your . . . ability to\n\nconduct commerce.” J.A. 2101. Even Cosey’s warning on September 13 that “just\n\nbecause something is legal today doesn’t mean it might not be illegal in the future,” J.A.\n\n2107, was not an affirmative statement that selling XLR-11 was currently legal. Nothing\n\nCosey said to Defendants could reasonably support a reliance on an official\n\nrepresentation that their actions were lawful, so Cosey’s testimony could not reveal\n\nDefendants’ mens rea on that point.\n\n Second, Cosey’s testimony is not probative of Defendants’ mens rea because his\n\nconversations with Defendants were unrelated to the similarity of XLR-11 and JWH-018.\n\nAs Cosey’s September 13 conversation with Ritchie occurred after the August 9\n\nshipment, it is irrelevant to showing Defendant’s intent on August 9. But even the July 26\n\nconversation, which followed months of Defendants’ regular sales of spice with XLR-11\n\nbut preceded the August 9 shipment, would not have tended to negate Defendants’\n\n 26\n\fknowledge of substantial similarity on August 9. This is because Cosey simply inspected\n\nthe Zencense facilities and did not discuss the chemical structure or effects of XLR-11 or\n\nJWH-018 with Defendants on July 26. In fact, Cosey stated in his deposition that he\n\ncould not verify Ritchie’s description of the spice’s contents on July 26 because he had\n\nnot yet seen a DEA lab report on the substance. Therefore, Cosey did not know whether\n\nthe spice contained XLR-11, and none of his comments to Defendants could have\n\nnegated their knowledge of whether their spice additive was substantially similar to\n\nJWH-018. Cosey’s proffered testimony is thus irrelevant, and the district court did not\n\nabuse its discretion in excluding it. See Fed. R. Evid. 401(a) (noting that evidence is\n\nrelevant if “it has any tendency to make a fact more or less probable than it would be\n\nwithout the evidence”). 14\n\n\n\n 14\n To bolster their innocent intent argument, Defendants cite United States v.\nMakkar, 810 F.3d 1139 (10th Cir. 2015), an out-of-circuit case in which the defendants\nwere charged with distributing a controlled substance analogue via “incense.” Id. at\n1147–48. To show they lacked knowledge of the substance’s chemical structure, those\ndefendants proffered evidence that “they asked state law enforcement agents to test the\nincense to assure its legality under state law—and that they offered to stop selling the\nincense until the results came in.” Id. at 1147. The district court excluded the evidence,\nbut the Tenth Circuit reversed, holding the defendant’s proffer was not “merely\ncumulative” and characterizing it this way:\n As a matter of common sense and our collective experience, we have a hard\n time imagining more powerful proof that a defendant didn’t know the\n chemical composition of a drug, and didn’t know it was substantially\n similar to an unlawful substance, than evidence that he turned to law\n enforcement for information about the drug’s composition and offered to\n suspend sales until tests could be performed.\nId. at 1147–48. Defendants here argue that because they, too, “turned to law\nenforcement” for advice, see id. at 1148, Cosey’s testimony should have been admitted as\nproof of their innocent intent.\n(Continued)\n 27\n\f We therefore affirm the district court’s exclusion of Cosey’s irrelevant testimony.\n\nAs any error in excluding it did not “affect the outcome of [the] case,” see Ferguson, 752\n\nF.3d at 619, it was harmless, and we hold the district court did not violate Defendants’\n\ncompulsory process rights by excluding Cosey from testifying.\n\n 2.\n\n a.\n\n Attorney McGee: In late July or early August 2012, after federal officials began\n\ninvestigating Zencense, Defendants contacted Florida attorney David McGee to represent\n\nthem. After conducting some preliminary research, McGee agreed to represent\n\nDefendants. They retained him on August 6, three days before the first charged shipment.\n\nAt points during McGee’s representation of Defendants, he consulted chemists about the\n\nchemical structures of XLR-11 and JWH-018, and several chemists opined to him that\n\n\n\n\n Not only do Defendants rely on a case we need not follow, but their analogy is\ncritically flawed. The Makkar defendants were only retailers of the incense and thus\ndisputed their knowledge of the ingredients’ chemical structure and physiological effects.\nThat is, they challenged the first of the two Analogue Act requirements the Government\nhas to prove when it proceeds under the substantial similarity method of proof.\nMcFadden, 823 F.3d at 223; see 21 U.S.C. § 802(32)(A). Here, Defendants were spice\nproducers and are not challenging that they knew the chemical structure of XLR-11. They\nadmit that they reformulated their spice to include XLR-11 based on their customers’\ndemands and routinely acquired detailed lab reports identifying the spice’s composition.\nDefendants are instead challenging the second element the Government must prove: that\nDefendants knew (based on its chemical structure and physiological effects) that XLR-11\nand JWH-018 were “substantially similar” within the meaning of 21 U.S.C.\n§ 802(32)(A). Because Makkar’s holding addressed the first Analogue Act requirement,\nnot the second, it has no bearing on our decision here.\n\n 28\n\fthe chemicals are not substantially similar. McGee kept Defendants apprised of his\n\nresearch.\n\n After Defendants were indicted, McGee represented them in pretrial proceedings\n\nbelow. During a hearing on the propriety of McGee’s joint representation of Defendants,\n\nthe district court asked him whether Defendants intended to assert the affirmative defense\n\nof advice of counsel. McGee responded that they would not use that defense because he\n\n“never” advised them that selling XLR-11 was legal:\n\n THE COURT: Well, you know, what are your main defenses in this case? I\n don’t know whether you want to reveal your defense strategy—\n\n MR. McGEE: I have revealed my defense strategy to the government since\n January of 2013. It has not changed, it will not change. They know what\n our defense is.\n\n THE COURT: . . . . Is one of the potential defenses that they acted pursuant\n to legal counsel?\n\n MR. McGEE: Not Mr. Miller or myself. There is a possibility that one of\n the defenses will be another lawyer before us, not us, gave them advice\n with regard to the legality of these substances. It was not Mr. Miller, it was\n not myself . . . .\n . . . . We have never given such advice and would not give such\n advice.\n\nSupp. J.A. 12–13. The district court ultimately disqualified McGee from jointly\n\nrepresenting Defendants, and they each retained new counsel.\n\n Yet when Defendants secured new counsel, one of the affirmative defenses raised\n\nwas reliance on McGee’s legal advice that XLR-11 was not substantially similar to JWH-\n\n018 because some chemists had reached that conclusion and told McGee. The district\n\ncourt prohibited Defendants from asserting that defense because they could not establish\n\n\n 29\n\fits three elements: sharing relevant facts with counsel, receiving legal advice based on\n\nthose facts, and reasonably relying on that advice. See United States v. Perry, 30 F. Supp.\n\n3d 514, 541 (E.D. Va. 2014) (listing the defense’s elements). The district court found that\n\nDefendants did not disclose all relevant facts to McGee because an Analogue Act\n\ndistribution offense requires distribution of a product “for human consumption,” see\n\nMcFadden, 823 F.3d at 223, but Defendants labeled theirs “[n]ot for human\n\nconsumption,” J.A. 633, and never told McGee consumers were smoking it. Further,\n\nDefendants “consulted counsel after [they were] already engaged in selling spice . . . with\n\nUR-144 and XLR-11 for human consumption,” so they did not sell it in reliance on\n\nMcGee’s advice. Memorandum Order at 7, United States v. Ritchie, No. 4:15-cr-18-RAJ-\n\nLRL (E.D. Va. Oct. 3, 2016), ECF No. 462.\n\n After the district court barred reliance on the advice of counsel defense,\n\nDefendants changed course again and offered McGee’s testimony for the same purpose\n\nthey alternatively proposed for Agent Cosey’s. That is, outside of the affirmative defense,\n\nthe same evidence was proffered as general evidence of Defendants’ lack of mens rea in\n\nselling XLR-11. Defendants now represented McGee’s discussions with the chemists as\n\nshowing they relied on their attorney’s belief that their August 9 spice shipment was legal\n\nbecause it did not contain a controlled substance analogue.\n\n The district court excluded McGee’s testimony as hearsay, explaining that “the\n\nstate-of-mind exception [to hearsay] goes to the declarant and doesn’t go to this\n\n\n\n\n 30\n\fdefendant.” 15 J.A. 350. Moreover, the court ruled, McGee’s testimony, like Cosey’s, was\n\nirrelevant because Defendants were already selling XLR-11 when McGee consulted the\n\nchemists. In the court’s view, “if the point is to show their state of mind at the time they\n\ncommenced the criminal conduct, and the criminal conduct commenced before that\n\nhearsay statement took place in the first place,” “it would be irrelevant.” J.A. 351.\n\n b.\n\n We disagree with the district court. As we understand Defendants’ argument, they\n\nsought to introduce McGee’s testimony to show they had an innocent state of mind when\n\nshipping XLR-11 on August 9. 16 If McGee timely transmitted to Defendants the\n\nchemists’ opinions as they claim, his testimony was not irrelevant; rather, it could have\n\nbeen probative of Defendants’ mens rea.\n\n According to Defendants, they shipped XLR-11 on August 9 and throughout the\n\nalleged conspiracy in part because they relied on the research of chemical experts whose\n\nopinions McGee relayed. In Defendants’ view, if McGee had consulted chemists who\n\ndetermined XLR-11 was substantially similar to JWH-018, told Defendants about those\n\nopinions before August 9, and Defendants trusted those opinions, “they would not have\n\nmade their sale to [the retailer in Virginia] on August 8, 2012, or at any time thereafter.”\n\n\n 15\n The district court was referring to Ritchie, who proffered McGee’s testimony,\nbut the ruling applied to both Defendants.\n 16\n It is unclear to what extent Defendants still seek to press an advice of counsel\ndefense, but we believe the district court properly barred reliance on that affirmative\ndefense because Defendants could not support it. Consequently, we will examine\nMcGee’s testimony not as legal advice, but as general testimony bearing on Defendants’\nstate of mind on August 9.\n\n 31\n\fOpening Br. 43. We agree with Defendants that McGee’s testimony about the chemists’\n\nopinions could be probative of their knowledge of the substantial similarity of XLR-11\n\nand JWH-018 on August 9.\n\n Defendants’ argument fails, of course, if McGee consulted chemical experts or\n\nreported his findings after the August 9 shipment. If Defendants received information\n\nfrom McGee later, his testimony could not provide context for Defendants’ state of mind\n\nat the time of the alleged crime. But the record is unclear about when McGee consulted\n\nthe chemists and when or what he informed Defendants that he had learned, so we are\n\nunable to conclude on this record that his exclusion from trial was harmless. It is possible\n\nthat McGee’s testimony, if the jury believed it, could have affected the outcome of the\n\ncase. Ferguson, 752 F.3d at 619. If so, the district court abused its discretion in excluding\n\nhim.\n\n Therefore, we vacate the district court’s exclusion of McGee’s testimony and\n\nremand for further proceedings consistent with this opinion. Defendants must be allowed\n\nto develop the evidence on the narrow issue of when McGee consulted chemists about the\n\nsimilarity of XLR-11 and JWH-018 for Defendants’ benefit, when McGee informed\n\nDefendants about the chemists’ research, and what he told them. We note, however, that\n\nMcGee’s testimony, if a factual basis is established, shall be limited to the issue of the\n\nchemists’ research and no other subject. Further, our holding is consistent with the rules\n\nof hearsay in that McGee can only relay the chemists’ opinions if they are offered not for\n\ntheir truth, but solely for their effect on Defendants’ state of mind. See Fed. R. Evid.\n\n801(c) (defining hearsay to include only statements “offer[ed] in evidence to prove the\n\n 32\n\ftruth of the matter asserted in the statement”). McGee may testify as to facts only. He\n\nmay testify about his timely conversations with chemists and with Defendants, but he\n\nmay not speculate as to what Defendants may have been thinking at the time of their\n\nalleged criminal acts.\n\n 3.\n\n a.\n\n Ritchie: Finally, if allowed, Ritchie would have testified that he and Galecki\n\nshipped the spice on August 9 with an innocent state of mind because they consulted with\n\nattorneys—including McGee—and chemists and “relied on [their advice] in going\n\nforward and operated under the assumption that [XLR-11 and JWH-018] were not\n\nsubstantially similar.” J.A. 352. The district court excluded Ritchie’s testimony as\n\nhearsay because others’ statements could not reveal Ritchie’s state of mind and the\n\ntestimony did not fit into the state-of-mind hearsay exception. See Fed. R. Evid. 803(3).\n\nThe court saw Defendants’ maneuver as another “backdoor” attempt to inject evidence\n\ninto the trial that did not meet the threshold for one of the unsupported affirmative\n\ndefenses. J.A. 357.\n\n b.\n\n To the extent Ritchie’s testimony about Defendants’ state of mind on August 9 is\n\nbased on his conversations with McGee, it similarly requires sufficient evidence\n\nregarding the content and timing of the consultation. As discussed above, if there is\n\ninsufficient foundation shown on remand to permit McGee’s testimony about the\n\nchemists he consulted, then Ritchie’s testimony on this issue must also be excluded.\n\n 33\n\fRitchie, of course, can still testify as to his own state of mind without reference to\n\nMcGee. We therefore vacate the district court’s exclusion of Ritchie’s testimony on this\n\npoint and remand for the district court to reexamine Ritchie’s testimony in light of any\n\nfurther development of McGee’s testimony, as limited above. As in McGee’s testimony,\n\nany discussion of the chemists’ opinions in Ritchie’s testimony can only be offered for its\n\neffect on Defendants’ state of mind and not for its truth. See Fed. R. Evid. 801(c).\n\n\n\n IV.\n\n As a final matter, Defendants have requested we reassign this case on remand to a\n\ndifferent district judge, but they have alleged no express bias by the sitting judge.\n\nReassignment is only warranted in “unusual circumstances,” none of which exist here.\n\nUnited States v. North Carolina, 180 F.3d 574, 582–83 (4th Cir. 1999) (internal quotation\n\nmarks omitted). We have examined the record and found no express bias, nor have we\n\nseen any indication that the district judge would jeopardize the “fundamental fairness” of\n\nany continued proceedings in this case. See G.G. ex rel. Grimm v. Gloucester Cty. Sch.\n\nBd., 822 F.3d 709, 726 (4th Cir. 2016), vacated and remanded on other grounds by 137\n\nS. Ct. 1239 (2017) (mem.). Accordingly, we decline to reassign the case on remand. 17\n\n\n\n\n 17\n Our rulings in this case expand Defendants’ options for presenting evidence in a\nnew trial. Nonetheless, Defendants are under no requirement to present the items of\nevidence discussed above, nor is the district court required to make any further specific\nevidentiary decisions save for those consistent with this opinion.\n\n 34\n\f V.\n\nFor the reasons stated above, the district court’s decisions are\n\n AFFIRMED IN PART, REVERSED IN PART,\n VACATED, AND REMANDED.\n\n\n\n\n 35\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Benjamin GALECKI, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Charles Burton Ritchie, Defendant - Appellant.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-07-29\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-4727\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff – Appellee,\\n\\n v.\\n\\nBENJAMIN GALECKI,\\n\\n Defendant – Appellant.\\n\\n\\n\\n\\n No. 18-4730\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff – Appellee,\\n\\n v.\\n\\nCHARLES BURTON RITCHIE,\\n\\n Defendant – Appellant.\\n\\n\\n\\nAppeals from the United States District Court for the Eastern District of Virginia, at\\nNewport News. Raymond A. Jackson, District Judge. (4:15-cr-00018-RAJ-LRL-1; 4:15-\\ncr-00018-RAJ-LRL-2)\\n\\fArgued: March 19, 2019 Decided: July 29, 2019\\n\\n\\nBefore AGEE and FLOYD, Circuit Judges, and DUNCAN, Senior Circuit Judge.\\n\\n\\nAffirmed in part, reversed in part, vacated, and remanded by published opinion. Judge\\nAgee wrote the opinion, in which Judge Floyd and Senior Judge Duncan joined.\\n\\n\\nARGUED: J. Lloyd Snook, III, SNOOK & HAUGHEY, P.C., Charlottesville, Virginia,\\nfor Appellants. Eric Matthew Hurt, OFFICE OF THE UNITED STATES ATTORNEY,\\nNewport News, Virginia, for Appellee. ON BRIEF: Christian L. Connell, Norfolk,\\nVirginia, for Appellant Benjamin Galecki. G. Zachary Terwilliger, United States\\nAttorney, Alexandria, Virginia, Kevin Hudson, Assistant United States Attorney,\\nOFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for\\nAppellee.\\n\\n\\n\\n\\n 2\\n\\fAGEE, Circuit Judge:\\n\\n A federal jury convicted Benjamin Galecki and Charles Burton Ritchie\\n\\n(“Defendants”) of charges related to a conspiracy to distribute controlled substance\\n\\nanalogues. Defendants then appealed to this Court for the first time, challenging several\\n\\nof the trial court’s rulings, including the failure to compel a Drug Enforcement\\n\\nAdministration (DEA) chemist to testify on their behalf, the exclusion of certain\\n\\nevidence, and the formulation of a jury instruction. In that appeal, we upheld the jury\\n\\ninstruction, but vacated Defendants’ convictions and remanded the case for the district\\n\\ncourt to determine whether the DEA chemist’s testimony was material to their case.\\n\\nUnited States v. Ritchie, 734 F. App’x 876 (4th Cir. 2018) (Ritchie II). On remand, the\\n\\ndistrict court held the chemist’s testimony was not material and declined to compel his\\n\\npresence at trial. United States v. Ritchie, No. 4:15-cr-18, 2018 WL 4693811 (E.D. Va.\\n\\nSept. 28, 2018) (Ritchie III). Defendants now appeal that decision and renew several\\n\\nother evidentiary challenges that we declined to address in the prior appeal. As discussed\\n\\nbelow, we affirm in part, reverse in part, vacate Defendants’ convictions, and remand for\\n\\na new trial.\\n\\n\\n\\n I.\\n\\n A.\\n\\n Federal law prohibits the distribution of a controlled substance analogue. See 21\\n\\nU.S.C. §§ 813, 841(a)(1). The Analogue Act defines “controlled substance analogue” as\\n\\n\\n\\n 3\\n\\f a substance—\\n\\n (i) the chemical structure of which is substantially similar to the\\n chemical structure of a controlled substance in schedule I or II;\\n\\n (ii) which has a stimulant, depressant, or hallucinogenic effect on the\\n central nervous system that is substantially similar to or greater than the\\n stimulant, depressant, or hallucinogenic effect on the central nervous\\n system of a controlled substance in schedule I or II; or\\n\\n (iii) with respect to a particular person, which such person represents or\\n intends to have a stimulant, depressant, or hallucinogenic effect on the\\n central nervous system that is substantially similar to or greater than the\\n stimulant, depressant, or hallucinogenic effect on the central nervous\\n system of a controlled substance in schedule I or II.\\n\\n21 U.S.C. § 802(32)(A). Because an Analogue Act conviction requires proof of a\\n\\ndefendant’s knowledge and intent, that is, his mens rea, the Government must show that\\n\\nhe knew either that the substance at issue is a controlled substance or that it is\\n\\n“substantially similar” to a controlled substance in both chemical structure and\\n\\nphysiological effects. See id. This Court has explained that a person has violated the\\n\\nAnalogue Act if he\\n\\n (1) distributed a substance that had the chemical structure of an analogue\\n and the actual, intended, or claimed physiological effects of an analogue;\\n (2) intended that the substance be used for human consumption; and (3)\\n knew either the legal status of the substance, or the chemical structure and\\n physiological effects of that substance.\\n\\nUnited States v. McFadden, 823 F.3d 217, 223 (4th Cir. 2016).\\n\\n B.\\n\\n From 2010 to 2013, Defendants operated Zencense Incenseworks, LLC, which\\n\\nhad facilities in Pensacola, Florida, and Las Vegas, Nevada. Zencense manufactured and\\n\\nsold a substance commonly called “spice,” which contained a mix of crushed leaves and\\n\\n 4\\n\\fchemical additives. Consumers would generally smoke the spice, but Defendants\\n\\npackaged the product as “incense” and labeled it “Not for human consumption.” J.A. 633.\\n\\nIn late March or early April 2012, Defendants began using the chemical additives XLR-\\n\\n11 and UR-144 in their manufactured spice. These additives were not on the controlled\\n\\nsubstances drug schedule during the time period of the alleged conspiracy (February 8,\\n\\n2012 to April 30, 2013). 1 Defendants shipped their product around the country for sale by\\n\\nvarious retailers, including one in Hampton Roads, Virginia, which received a shipment\\n\\non August 9, 2012. 2\\n\\n The Government had begun investigating Zencense’s operations because it\\n\\nsuspected Defendants’ “incense” was actually synthetic marijuana, i.e., a substance\\n\\n“designed and intended to have an effect similar to controlled substances” (marijuana)\\n\\nwhen smoked. J.A. 110. In the Government’s view, this physiological effect, coupled\\n\\nwith the chemical similarity of the additive XLR-11 to the controlled chemical in\\n\\nmarijuana, JWH-018, makes Defendants’ spice a controlled substance analogue within\\n\\nthe meaning of 21 U.S.C. § 802(32)(A). On that basis, the Government charged\\n\\nDefendants with conspiring to distribute controlled substances and controlled substance\\n\\nanalogues, in violation of 21 U.S.C. §§ 846, 813; using a communication facility to\\n\\npromote unlawful activity, in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2; using a\\n\\nfacility in interstate commerce to promote unlawful activity, in violation of 18 U.S.C.\\n\\n 1\\n XLR-11 and UR-144 have been treated as identical substances in this case.\\nUnless otherwise stated, reference to one is reference to the other.\\n 2\\n Though the shipment may have occurred on August 8, 2012, the invoice is dated\\nAugust 9, so we rely on that date.\\n\\n 5\\n\\f§§ 1952(a)(3), 2; and distributing controlled substances and controlled substance\\n\\nanalogues, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2.\\n\\n At Defendants’ joint trial, the Government had to prove a scientific element as to\\n\\nthe spice and a mens rea element as to each Defendant. To establish the scientific\\n\\nelement, the Government had to show that XLR-11 in the spice had properties\\n\\n“substantially similar” to the properties of JWH-018 in marijuana. See 21 U.S.C.\\n\\n§ 802(32)(A). And to establish the mens rea element, the Government had to satisfy one\\n\\nof two methods of proof: either that Defendants knew XLR-11 was a controlled\\n\\nsubstance analogue or that they knew the “chemical structure and physiological effects”\\n\\nof XLR-11 were substantially similar to those of JWH-018. See McFadden, 823 F.3d at\\n\\n223. The Government proceeded under the second method of proof and attempted to\\n\\n“establish that ‘the defendant knew the specific analogue he was dealing with, even if he\\n\\ndid not know its legal status as an analogue.’” Id. (quoting McFadden v. United States,\\n\\n135 S. Ct. 2298, 2305 (2015)). “Under this second method of proof, knowledge of the\\n\\nsubstance’s chemical structure and physiological effects is sufficient to support a\\n\\nconviction.” Id. Defendants challenged both the scientific and mens rea elements of the\\n\\nGovernment’s case, contending XLR-11 is not chemically similar to JWH-018 and\\n\\nasserting they lacked knowledge of any similarity between the structures or physiological\\n\\neffects of the two chemicals.\\n\\n Defendants’ first trial resulted in a hung jury on each count. During a second trial,\\n\\nthe jury indicated it was at an impasse on the issue of substantial similarity, and the\\n\\n\\n\\n 6\\n\\fdistrict court issued an Allen charge. 3 The jury then convicted Defendants of all counts.\\n\\n C.\\n\\n Defendants appealed, challenging a number of the trial court’s rulings. Our\\n\\nopinion addressed only two issues: the court’s refusal to compel DEA chemist Dr. Arthur\\n\\nBerrier to testify for Defendants and its formulation of a mens rea jury instruction. See\\n\\nRitchie II, 734 F. App’x at 878–81.\\n\\n Defendants framed Dr. Berrier’s exclusion from trial as a Sixth Amendment\\n\\ncompulsory process violation. See id. at 878–79. Under the Sixth Amendment, a criminal\\n\\ndefendant “enjoy[s] the right . . . to have compulsory process for obtaining witnesses in\\n\\nhis favor.” U.S. Const. amend. VI. Though “not absolute,” United States v. Prince-Oyibo,\\n\\n320 F.3d 494, 501 (4th Cir. 2003), this right is violated when a defendant is “arbitrarily\\n\\ndeprived of testimony that would have been relevant and material, and vital to the\\n\\ndefense,” United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (internal\\n\\nquotation marks, alterations, and emphases omitted). To establish a Sixth Amendment\\n\\nviolation, a criminal defendant “must at least make some plausible showing of how [the\\n\\nexcluded] testimony would have been both material and favorable to his defense.” Id.\\n\\n Exercising their compulsory process rights prior to trial, Defendants issued a\\n\\n“Touhy request” 4 to the Government along with a subpoena for Dr. Berrier. 5 The\\n\\n\\n\\n 3\\n Allen v. United States, 164 U.S. 492 (1896). See United States v. Cornell, 780\\nF.3d 616, 625 (4th Cir. 2015) (explaining that an Allen charge is a supplemental jury\\ninstruction given “when the jury has reached an impasse in its deliberations and is unable\\nto reach a consensus”).\\n\\n 7\\n\\fGovernment denied the Touhy request, claiming Dr. Berrier’s opinion formed in the\\n\\ncourse of his employment with the DEA was covered by the Government’s deliberative\\n\\nprocess privilege. See Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532\\n\\nU.S. 1, 8 (2001) (noting the deliberative process privilege covers written “opinions,\\n\\nrecommendations and deliberations comprising part of a process by which governmental\\n\\ndecisions and policies are formulated” (internal quotation marks omitted)). The district\\n\\ncourt agreed with the Government and quashed the subpoena, thereby rejecting\\n\\nDefendants’ compulsory process arguments. When Defendants challenged the district\\n\\ncourt’s privilege ruling on appeal, we held that the Government had waived its privilege\\n\\nas to Dr. Berrier’s XLR-11 opinion because he had offered it in other cases and made it\\n\\npublicly available online. Ritchie II, 734 F. App’x at 879. But we then noted that\\n\\n [t]he absence of a privilege does not end the inquiry, however, because the\\n Defendants’ compulsory process right extends only to “favorable” and\\n “material” witnesses and evidence. Dr. Berrier’s testimony is clearly\\n favorable to the Defendants, but the district court did not consider\\n materiality, and we leave it to that court to determine in the first instance. If\\n Dr. Berrier’s testimony is material and otherwise admissible, the\\n\\n\\n 4\\n United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). Under 5 U.S.C. § 301\\nand Touhy, federal agencies may regulate their employees’ ability to testify about their\\nwork, United States v. Soriano-Jarquin, 492 F.3d 495, 504 (4th Cir. 2007), but criminal\\ndefendants may seek such agency employees’ testimony at trial via what are now termed\\n“Touhy requests,” see id.; Smith v. Cromer, 159 F.3d 875, 879 (4th Cir. 1998) (describing\\nthe interplay of Touhy requests and witness subpoenas).\\n 5\\n Dr. Berrier is no longer a DEA employee, but whether the district court properly\\nexcluded his testimony depends on the facts before the district court when Defendants\\nissued the Touhy request to the Government. See Hertz v. Luzenac Am., Inc., 370 F.3d\\n1014, 1019 (10th Cir. 2004) (“As a reviewing court, we may only ‘evaluate the trial\\ncourt’s decision from its perspective when it had to rule and not indulge in review by\\nhindsight.’” (quoting Old Chief v. United States, 519 U.S. 172, 182 n.6 (1997))).\\n\\n 8\\n\\f Defendants’ Sixth Amendment rights were violated by his exclusion from\\n the trial.\\n\\nId.\\n\\n We vacated Defendants’ convictions and remanded to the district court the initial\\n\\ndetermination of whether Dr. Berrier’s testimony would be material. Further, we\\n\\nexercised our discretion to address Defendants’ challenge to the jury instruction as that\\n\\nissue was “likely to recur” and then affirmed the district court’s use of the instruction. Id.\\n\\n(quoting United States ex rel. Drakeford v. Tuomey Healthcare Sys., Inc., 675 F.3d 394,\\n\\n406 (4th Cir. 2012)).\\n\\n On remand, the district court concluded that Dr. Berrier’s testimony was not\\n\\nmaterial to Defendants’ case because it would have been “merely cumulative” to\\n\\ntestimony from Defendants’ two other expert chemists. Ritchie III, 2018 WL 4693811, at\\n\\n*4. The district court determined that those chemists used the same methods and came to\\n\\nthe same conclusion as Dr. Berrier, and that his “position at the DEA would not provide\\n\\nany new relevant information” to the jury. Id. The court accordingly held that Dr.\\n\\nBerrier’s exclusion from the trial did not violate Defendants’ Sixth Amendment\\n\\ncompulsory process rights.\\n\\n Defendants now bring a second appeal. 6 7\\n\\n\\n\\n\\n 6\\n Unless otherwise stated, all references to rulings made “at trial” refer to the\\ndistrict court’s rulings applicable to Defendants’ second trial, which occurred before the\\nfirst appeal and remand.\\n 7\\n While it is unclear whether Galecki joined all of Ritchie’s arguments below, he\\nhas joined Ritchie’s briefs on appeal and has not indicated that he departs from any of\\nRitchie’s arguments. We will therefore assume that Galecki joins all of Ritchie’s\\n(Continued)\\n 9\\n\\f II.\\n\\n A.\\n\\n To challenge the scientific element of the Government’s case—that XLR-11 is\\n\\nsubstantially similar to JWH-018—Defendants sought to compel the expert testimony of\\n\\nDr. Berrier, a Senior Research Chemist in the DEA’s Office of Forensic Sciences\\n\\n(“OFS”). Dr. Berrier would have opined that XLR-11 and JWH-018 are not substantially\\n\\nsimilar in chemical structure. While another DEA office, the Drug and Chemical\\n\\nEvaluation Section (“DRE”) in the Office of Diversion Control, ultimately classifies\\n\\ncontrolled substance analogues, it regularly consults the OFS before making its decisions.\\n\\nAs an OFS chemist, Dr. Berrier routinely analyzed synthetic substances for the DRE and\\n\\ngave his opinion on their substantial similarity to controlled substances. In the spring of\\n\\n2012, the DRE asked Dr. Berrier to compare UR-144 to JWH-018. 8 He concluded that\\n\\nthey are not substantially similar in chemical structure. But ultimately, after the charged\\n\\nevents, the DRE determined that UR-144 and JWH-018 are substantially similar, making\\n\\nUR-144 a controlled substance analogue. The DEA formally added UR-144 and XLR-11\\n\\nto the controlled substances drug schedule in 2013, after the alleged conspiracy ended.\\n\\n\\narguments. Moreover, where the district court’s rulings applied equally to Defendants\\nbecause they were business partners in constant communication during the alleged\\nconspiracy and did not seek severance of their joint trial, our holdings apply to both\\nDefendants as well. See United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992) (“[I]t is\\nmanifestly unjust to reverse the conviction of one co-defendant but to uphold the\\nconviction of another co-defendant when the same error affected both defendants.”\\n(internal quotation marks omitted)).\\n 8\\n Dr. Berrier analyzed UR-144 for the DRE, but it is undisputed that his opinion\\nwould have applied to XLR-11 as well.\\n\\n 10\\n\\f Defendants argued that Dr. Berrier’s testimony was crucial to their case, as he was\\n\\na DEA synthetic cannabinoid expert with a dissenting view—a view demonstrating that\\n\\neven highly-trained Government employees disagreed about the substantial similarity of\\n\\nXLR-11 and JWH-018. Indeed, one of the Government’s expert witnesses at trial was Dr.\\n\\nJordan Trecki, a pharmacologist in the DRE section of the DEA who testified about the\\n\\neffects and substantial similarity of XLR-11 to JWH-018. As discussed above,\\n\\nDefendants unsuccessfully sought to compel Dr. Berrier’s testimony on their behalf.\\n\\n Barred from questioning Dr. Berrier, Defendants relied on the expert testimony of\\n\\ntwo chemistry professors, Drs. Croatt and Dudley, who gave the same opinion that Dr.\\n\\nBerrier would have given—an opinion that contradicted Dr. Trecki’s. During cross-\\n\\nexamination, the Government questioned Defendants’ “hired guns” about the\\n\\ncompensation they received for testifying. In convicting Defendants, the jury ultimately\\n\\nrejected Drs. Croatt and Dudley’s expert opinion about XLR-11 and JWH-018.\\n\\n B.\\n\\n In this appeal, we are reviewing the district court’s determination that Dr. Berrier’s\\n\\nexclusion from trial did not violate Defendants’ Sixth Amendment rights since his\\n\\ntestimony would have been cumulative and not material to their defense. We disagree and\\n\\ntherefore reverse the district court’s materiality finding, vacate Defendants’ convictions,\\n\\nand remand for a new trial. See United States v. Rhynes, 218 F.3d 310, 323 (4th Cir.\\n\\n2000) (en banc) (holding that a Sixth Amendment constitutional violation occurred and\\n\\nremanding for a new trial).\\n\\n\\n\\n 11\\n\\f C.\\n\\n Before addressing the materiality issue on the merits, we first note that it is unclear\\n\\nwhat standard of review applies to a materiality ruling in the Sixth Amendment context.\\n\\nWe and our sister circuits apply no uniform standard of review to either the issue of\\n\\nmateriality in a compulsory process challenge or to evidentiary issues underlying general\\n\\nSixth Amendment challenges.\\n\\n With regard to compulsory process claims, our sister circuits apply both the de\\n\\nnovo and abuse of discretion standards of review, even at times applying different\\n\\nstandards in the same circuit without explanation. Compare United States v. Tuma, 738\\n\\nF.3d 681, 688 (5th Cir. 2013) (reviewing compulsory process claim de novo), United\\n\\nStates v. Damra, 621 F.3d 474, 485 (6th Cir. 2010) (same), United States v. Bahamonde,\\n\\n445 F.3d 1225, 1228 (9th Cir. 2006) (same), and United States v. Serrano, 406 F.3d\\n\\n1208, 1214–15 (10th Cir. 2005) (same), with United States v. Ross, 703 F.3d 856, 877–78\\n\\n(6th Cir. 2012) (reviewing compulsory process claim for abuse of discretion), United\\n\\nStates v. Youngman, 481 F.3d 1015, 1017 (8th Cir. 2007) (same), and United States v.\\n\\nGary, 74 F.3d 304, 309–10 (1st Cir. 1996) (same). Within the compulsory process\\n\\ncontext, it is often unclear what standard of review applies to an underlying materiality\\n\\nissue like the one presented here.\\n\\n Not only that, but the circuits take a variety of approaches to reviewing Sixth\\n\\nAmendment claims that stem from issues like the exclusion of evidence or the denial of a\\n\\nmotion to continue. Compare United States v. Rivas, 831 F.3d 931, 934 (7th Cir. 2016)\\n\\n(reviewing an evidentiary ruling for abuse of discretion but reviewing the overarching\\n\\n 12\\n\\fSixth Amendment Confrontation Clause claim de novo), and United States v. Woodard,\\n\\n699 F.3d 1188, 1193–94 (10th Cir. 2012) (reviewing an evidentiary ruling de novo\\n\\nbecause the defendant framed it as a Confrontation Clause violation), with United States\\n\\nv. Blum, 62 F.3d 63, 67 (2d Cir. 1995) (reviewing an evidentiary ruling for abuse of\\n\\ndiscretion without announcing a separate standard of review for the overarching\\n\\ncompulsory process challenge).\\n\\n Consequently, when faced with an issue presented under the Sixth Amendment,\\n\\nour sister courts often decline to decide the standard of review question and instead\\n\\nanalyze the district court’s ruling under either standard. E.g., United States v. Epskamp,\\n\\nNo. 15-2028-cr, 2016 WL 4191126, at *2 (2d Cir. Aug. 5, 2016) (summary order)\\n\\n(affirming under either standard of review the district court’s refusal to postpone a trial\\n\\ndespite the government’s failure to secure testimony of an individual incarcerated outside\\n\\nthe United States); United States v. Ladoucer, 573 F.3d 628, 634–35 (8th Cir. 2009)\\n\\n(affirming under either standard of review the district court’s refusal to postpone a trial\\n\\ndespite a defense witness’s failure to appear).\\n\\n Another common approach we often employ is simply refraining from announcing\\n\\na separate standard of review for each issue. See United States v. Beyle, 782 F.3d 159,\\n\\n171 (4th Cir. 2015) (announcing no standard for reviewing the overarching compulsory\\n\\nprocess challenge and reviewing the district court’s refusal to compel witnesses for abuse\\n\\nof discretion); United States v. Woods, 710 F.3d 195, 200–02 (4th Cir. 2013) (doing the\\n\\nsame and reviewing the district court’s exclusion of testimony for abuse of discretion);\\n\\nUnited States v. Passaro, 577 F.3d 207, 221 (4th Cir. 2009) (doing the same and\\n\\n 13\\n\\freviewing the district court’s quashing of subpoenas to CIA officials for abuse of\\n\\ndiscretion); Soriano-Jarquin, 492 F.3d at 497, 501–02 (doing the same and reviewing the\\n\\ndistrict court’s denial of a motion to dismiss the indictment de novo); Cromer, 159 F.3d\\n\\nat 882–83 (doing the same and reviewing the district court’s grant of a protective order\\n\\nquashing subpoenas de novo); United States v. Espinoza, 641 F.2d 153, 159 (4th Cir.\\n\\n1981) (doing the same and reviewing the district court’s refusal to issue subpoenas for\\n\\nabuse of discretion).\\n\\n Here, the district court found Dr. Berrier’s testimony immaterial and then\\n\\nexcluded him from trial by declining to compel him to testify. The Parties seem to agree\\n\\nthat the exclusion of Dr. Berrier was an evidentiary ruling, which we review for abuse of\\n\\ndiscretion and harmlessness, United States v. McLean, 715 F.3d 129, 143 (4th Cir. 2013),\\n\\nbut they do not directly address the standards of review applicable to the underlying\\n\\nmateriality ruling or the overarching Sixth Amendment claim.\\n\\n When previously faced with a materiality question similar to the one Defendants\\n\\nnow present, we declined to decide it and instead affirmed under either standard of\\n\\nreview. United States v. Moussaoui, 382 F.3d 453, 473 n.22 (4th Cir. 2004) (“The parties\\n\\ndispute whether the materiality determinations by the district court [in a compulsory\\n\\nprocess claim] are reviewed de novo or for abuse of discretion. We do not decide this\\n\\nquestion . . . .”). And we need not decide this question here. Under either standard, we\\n\\nwould reverse the district court’s finding that Dr. Berrier’s testimony was not material\\n\\nand reverse its exclusion of his testimony. Therefore, we will refrain from announcing the\\n\\n\\n\\n 14\\n\\fstandard of review applicable to the underlying materiality determination or to the\\n\\noverarching Sixth Amendment compulsory process challenge.\\n\\n For conducting the materiality analysis on the merits, however, we do have clear\\n\\nguidance from the Supreme Court in Valenzuela-Bernal. 458 U.S. at 867–74. In that case,\\n\\nthe Court concluded the district court properly denied the defendant’s motion to dismiss\\n\\nthe indictment on compulsory process grounds because, although the Government had\\n\\nremoved potential defense witnesses from the country, the defendant had failed to\\n\\n“explain what material, favorable evidence the deported [witnesses] would have provided\\n\\nfor his defense.” Id. at 874. In deciding Valenzuela-Bernal, the Supreme Court noted that\\n\\nmateriality has several components: it must be exculpatory; it must be “not merely\\n\\ncumulative to the testimony of available witnesses;” it must present “a reasonable\\n\\nlikelihood that the testimony could have affected the judgment of the trier of fact;” and it\\n\\nmust be otherwise admissible. See id. at 873–74. A district court assessing the materiality\\n\\nof evidence must address these components in the context of the entire record. Id. at 874;\\n\\nsee Moussaoui, 382 F.3d at 472.\\n\\n D.\\n\\n The district court “assume[d] for the sake of argument that Dr. Berrier’s testimony\\n\\nmay have been admissible and exculpatory,” Ritchie III, 2018 WL 4693811, at *3, and\\n\\nrested its materiality decision on the testimony being cumulative. In particular, the court\\n\\ndetermined Dr. Berrier’s testimony would have been cumulative because Drs. Croatt and\\n\\nDudley gave the same opinion and used the same methods as Dr. Berrier. Because the\\n\\n\\n\\n 15\\n\\fjury had rejected the testifying experts’ opinion, the district court held that Dr. Berrier’s\\n\\nsimilar testimony would not have altered the trial’s outcome.\\n\\n We can easily affirm the district court’s decision on two of the components of\\n\\nmateriality, as Dr. Berrier’s testimony was indeed exculpatory and admissible. It was\\n\\nexculpatory because Defendants could have supported their case theory—that the\\n\\nsubstantial similarity of XLR-11 and JWH-018 was a difficult question—with evidence\\n\\nthat even highly-trained DEA scientists disagreed about the answer. His testimony also\\n\\nwould have been admissible because it was highly relevant and violated no Federal Rules\\n\\nof Evidence.\\n\\n But we disagree with the district court’s analysis of the “not merely cumulative”\\n\\ncomponent, as we conclude that Dr. Berrier’s testimony was qualitatively different from\\n\\nthe testimony of the other defense witnesses. In stark contrast to Drs. Croatt and Dudley,\\n\\nDr. Berrier was not paid outside his DEA employment to form his opinion about XLR-\\n\\n11’s chemical similarity to JWH-018. Nor would Defendants have paid him to testify at\\n\\ntrial. Consequently, the Government could not have impeached Dr. Berrier in front of the\\n\\njury for having a pecuniary motive for testifying. Dr. Berrier’s inability to be impeached\\n\\non that ground made his testimony unique and particularly relevant, not cumulative. See\\n\\nThomas v. Westbrooks, 849 F.3d 659, 666 (6th Cir. 2017) (noting “impeachment on the\\n\\nbasis of pecuniary bias is fundamentally different” from impeachment for other reasons). 9\\n\\n\\n 9\\n We do not comment on the possible subjects of impeachment available to the\\nGovernment in cross-examining Dr. Berrier if he is called to testify at a new trial. That is\\nfor the trial court to decide in the first instance.\\n\\n 16\\n\\f Also unlike Drs. Croatt and Dudley, Dr. Berrier could have rebutted the testimony\\n\\nof Dr. Trecki, the Government’s DEA expert, with his own knowledge of the DEA’s\\n\\nprocesses and analyses. His expert testimony, which diverged from Dr. Trecki’s, could\\n\\nhave shown the jury that the DEA’s own scientists could not agree on the substantial\\n\\nsimilarity of the chemicals at issue. Drs. Croatt and Dudley could not have provided that\\n\\ntype of rebuttal testimony.\\n\\n And finally, Dr. Berrier’s testimony was material to the chemical structure issue\\n\\nbecause presenting it to the jury could reasonably have resulted in a different trial\\n\\noutcome. The jurors struggled to decide whether XLR-11 is substantially similar to JWH-\\n\\n018, as indicated by their note to the district court that they were “basically hung on\\n\\nCount 1, substantially similar.” J.A. 2048. That note prompted the court to issue an Allen\\n\\ncharge, after which the jury convicted Defendants. Had Defendants presented testimony\\n\\nfrom someone who opined on that very issue in the course of his duties at the DEA, the\\n\\njury could have entertained reasonable doubt about whether XLR-11 and JWH-018 are\\n\\nsubstantially similar in chemical structure.\\n\\n The Government asserts that any error in excluding Dr. Berrier was harmless and\\n\\nthus does not warrant reversal. Not so. A constitutional error is harmless only “if it is\\n\\n‘clear beyond a reasonable doubt that a rational jury would have found the defendant\\n\\nguilty absent the error.’” United States v. Sayles, 296 F.3d 219, 223 (4th Cir. 2002)\\n\\n(quoting Neder v. United States, 527 U.S. 1, 18 (1999)). Here, the jury’s difficulty with\\n\\nthe substantial similarity issue suggests that Dr. Berrier’s testimony was “evidence upon\\n\\nwhich [the] jury could have reached a contrary finding.” See Rhynes, 218 F.3d at 323\\n\\n 17\\n\\f(internal quotation marks omitted). Defendants “genuinely contested” the substantial\\n\\nsimilarity of XLR-11 and JWH-018 at every turn, and Dr. Berrier was uniquely situated\\n\\n“to rebut much of the Government’s [scientific] evidence against [them].” See id.\\n\\n(internal quotation marks omitted); see also United States v. Yarbrough, 527 F.3d 1092,\\n\\n1103 (10th Cir. 2008) (holding the defendant’s “substantial rights were affected” when\\n\\n“the district court’s error deprived [him] of important evidence relevant to a sharply\\n\\ncontroverted question going to the heart of [his] defense”). Accordingly, we harbor doubt\\n\\nabout whether the jury would have convicted Defendants if Dr. Berrier had testified, and\\n\\nwe hold that his exclusion from trial was a Sixth Amendment violation that was “not\\n\\nharmless.” See Rhynes, 218 F.3d at 323. 10\\n\\n Even if Defendants would have made different strategic choices had Dr. Berrier\\n\\nbeen made available to them—for example, calling only one of the other expert\\n\\nchemists—the court improperly denied them the opportunity to present favorable,\\n\\nmaterial evidence. See Valenzuela-Bernal, 458 U.S. at 867. Under either the de novo or\\n\\nabuse of discretion standard of review, we hold that the district court wrongly quashed\\n\\n\\n\\n\\n 10\\n Since we hold the district court’s error was not harmless under the harmless\\nerror standard applicable to constitutional decisions, it also was not harmless under the\\nlower harmless error standard applicable to pure evidentiary decisions. See United States\\nv. Ferguson, 752 F.3d 613, 618 (4th Cir. 2014) (contrasting the two harmless error\\nthresholds and noting a pure evidentiary error is not harmless if it had a “‘substantial and\\ninjurious effect or influence in determining the jury’s verdict’” (quoting Kotteakos v.\\nUnited States, 328 U.S. 750, 776 (1946))).\\n\\n 18\\n\\fthe subpoena to Dr. Berrier. We therefore reverse the district court’s materiality ruling,\\n\\nvacate Defendants’ convictions and remand for a new trial. 11\\n\\n\\n\\n III.\\n\\n We now turn to the district court’s exclusion of certain defense evidence. To\\n\\nnegate the mens rea element of the Government’s case—that Defendants knew XLR-11\\n\\nwas substantially similar to JWH-018 in chemical structure and physiological effects—\\n\\nDefendants proffered evidence to demonstrate that they had innocent intent when\\n\\nshipping their spice to Virginia on August 9, 2012. The court excluded this evidence,\\n\\nwhich came from three sources: DEA Special Agent Claude Cosey, attorney David\\n\\nMcGee, and Defendant Ritchie. Defendants argue the exclusion of this evidence is\\n\\nreversible error. But before assessing the district court’s rulings, we will address three\\n\\npreliminary matters.\\n\\n A.\\n\\n 1.\\n\\n First, these issues are now before us for the second time. We exercise our\\n\\ndiscretion to address Defendants’ claims because we are remanding for a new trial and\\n\\n\\n 11\\n In any further proceedings, the Government has the option to grant the Touhy\\nrequest as to Dr. Berrier, dismiss the indictment, or endure a sanction. See United States\\nv. Rivera, 412 F.3d 562, 570 (4th Cir. 2005) (“If the evidence is material to the defense,\\nthen the government must provide the evidence or, in most cases, dismiss the\\nprosecution.”); Moussaoui, 382 F.3d at 476 (concluding that excluded witnesses’\\ntestimony was material and noting “the choice is the Government’s whether to comply\\nwith [the relevant] orders or suffer a sanction”).\\n\\n 19\\n\\fthe issues are “likely to recur on remand.” Drakeford, 675 F.3d at 406. The Government\\n\\nincorrectly argues that Defendants waived the undecided claims from the first appeal\\n\\nbecause they did not press those claims in the district court on remand. On the contrary,\\n\\nDefendants had no opportunity to reassert their claims in the district court before the\\n\\ncurrent appeal, given the limited remand and the district court’s materiality ruling. Our\\n\\ndecision to “not address” every issue in the first appeal, Ritchie II, 734 F. App’x at 879\\n\\nn.7, had no bearing on the merits of the unaddressed claims. We created no “law of the\\n\\ncase” as to them and we will address in turn the claims Defendants have raised again in\\n\\nthis appeal. See Brittingham v. Jenkins, No. 91-1245, 1992 WL 172092, at *5 & n.4 (4th\\n\\nCir. July 23, 1992) (unpublished table decision) (per curiam). 12\\n\\n 2.\\n\\n Second, although we generally review evidentiary rulings for abuse of discretion,\\n\\nMcLean, 715 F.3d at 143, Defendants ask us to review the district court’s exclusion of the\\n\\nproffered testimony of Cosey and McGee de novo because it arises in the context of a\\n\\nSixth Amendment claim. 13 As noted above, we often analyze trial court rulings\\n\\nunderlying Sixth Amendment claims without announcing a separate standard of review\\n\\nfor the overarching constitutional challenge. We will do likewise here, reviewing the\\n\\ndistrict court’s exclusions of the Cosey and McGee evidence for abuse of discretion and\\n\\n\\n 12\\n As for Defendants’ renewed mens rea jury instruction claim, however, we have\\nalready established that the district court properly instructed the jury. Ritchie II, 734 F.\\nApp’x at 879–81. We will not disturb that decision, which is the law of the case.\\n 13\\n Defendants have not framed the exclusion of Ritchie’s testimony as a Sixth\\nAmendment violation, so we will review that evidentiary ruling for abuse of discretion.\\n\\n 20\\n\\fharmlessness. See McLean, 715 F.3d at 143. Even if we undertook a de novo review as to\\n\\nthese two witnesses, however, our decisions would not change.\\n\\n 3.\\n\\n Third, we must address Defendants’ argument that they should have been allowed\\n\\nto present evidence of their innocent intent outside the confines of a recognized\\n\\naffirmative defense. In an effort to circumvent the district court’s rejection of their\\n\\nvarious affirmative defenses, Defendants contend that the evidence in question is\\n\\nnonetheless admissible to demonstrate their innocent intent. In contrast to an affirmative\\n\\ndefense, which “excuses punishment for a crime the elements of which have been\\n\\nestablished and admitted,” United States v. Thompson, 554 F.3d 450, 452 n.2 (4th Cir.\\n\\n2009) (internal quotation marks omitted), an innocent intent defense negates the mens rea\\n\\nelement of the charged offenses. However, this Court has not previously permitted an\\n\\ninnocent intent defense and we need not determine whether to do so here in order to\\n\\nresolve this appeal.\\n\\n We understand that at least two district courts examining similar facts to those\\n\\nbefore us have allowed defendants to present innocent intent evidence, even when that\\n\\nevidence was insufficient to support an affirmative defense. See United States v. Way,\\n\\nNo. 1:14–cr–00101–DAD–BAM–1, 2018 WL 3062159, at *1–3 (E.D. Cal. June 19,\\n\\n2018) (compelling Agent Cosey to testify about his conversations with Ritchie as\\n\\nevidence of defendant Way’s innocent intent in facilitating Zencense’s operations);\\n\\nUnited States v. Ritchie, No. 2:15-cr-00285-APG-PAL, 2018 WL 6580570, at *3–4 (D.\\n\\nNev. Dec. 13, 2018) (allowing defendants Ritchie and Galecki to present evidence of\\n\\n 21\\n\\fAgent Cosey’s conversations with Ritchie to demonstrate their innocent intent). Those\\n\\ndecisions, of course, are not precedential or binding on us.\\n\\n Nor are decisions from our sister circuits binding, and only one of those courts has\\n\\nexpressly recognized the innocent intent defense. See United States v. Alvarado, 808 F.3d\\n\\n474, 486 (11th Cir. 2015) (explaining a defendant may “effectively backdoor the rejected\\n\\n[public authority] defense by testifying that he genuinely believed” that the government\\n\\ndirected and approved of his conduct); United States v. Baptista-Rodriguez, 17 F.3d\\n\\n1354, 1368 n.18 (11th Cir. 1994) (collecting cases); see also United States v. Xiong, 914\\n\\nF.3d 1154, 1159–60 (8th Cir. 2019) (leaving undisturbed the district court’s admittance\\n\\nof innocent intent defense evidence even though it did not support the public authority\\n\\nand entrapment by estoppel affirmative defenses). The Eleventh Circuit has also noted\\n\\nthe uniqueness of its position, observing that it “may be the only circuit to explicitly\\n\\nallow an innocent intent defense in this context.” Alvarado, 808 F.3d at 487. Moreover,\\n\\nthe Second Circuit has criticized the Eleventh Circuit’s view as an “‘unwarranted\\n\\nextension’” of the established affirmative defenses. United States v. Giffen, 473 F.3d 30,\\n\\n43 (2d Cir. 2006) (quoting United States v. Wilson, 721 F.2d 967, 975 (4th Cir. 1983), in\\n\\nwhich we affirmed the district court’s refusal to instruct the jury on the “good faith”\\n\\ndefense of reliance on official authority because the evidence did not support it). In the\\n\\nSecond Circuit’s view, allowing defendants to assert an innocent intent defense would\\n\\n“‘grant any criminal carte blanche to violate the law should he subjectively decide’” that\\n\\nhe served some higher, innocent purpose, a lenience which would “swallow the actual\\n\\n\\n\\n 22\\n\\fpublic authority and entrapment-by-estoppel defenses.” Id. (quoting Wilson, 721 F.2d at\\n\\n975).\\n\\n We thus are not alone in hesitating to recognize the innocent intent defense. But\\n\\nsetting aside the limited value of those decisions, we need not decide here whether to\\n\\npermit an innocent intent defense in this Circuit because we can resolve Defendants’\\n\\narguments apart from that defense.\\n\\n B.\\n\\n Finally, we come to the merits of Defendants’ evidentiary challenges, bearing in\\n\\nmind that we may only assess whether the evidence was properly excluded for the reason\\n\\nDefendants proffered it—to negate the mens rea element of the Government’s case. See\\n\\nRamming Real Estate Co. v. United States, 122 F.2d 892, 893 (8th Cir. 1941) (“Where a\\n\\nlitigant seeks a reversal upon a ruling of the court rejecting evidence offered for a specific\\n\\npurpose, he [cannot] in the appellate tribunal change . . . the ground or theory upon which\\n\\nhe asked the lower court to admit the testimony.”); accord Shepard v. United States, 290\\n\\nU.S. 96, 102–03 (1933). For the reasons below, we hold that the district court did not\\n\\nabuse its discretion in excluding Cosey’s testimony and affirm that evidentiary ruling.\\n\\nWith regard to McGee’s and Ritchie’s testimony, however, we vacate the district court’s\\n\\nexclusion of that evidence and remand for further proceedings.\\n\\n 1.\\n\\n a.\\n\\n Agent Cosey: On July 25, 2012, law enforcement officers inspected Zencense’s\\n\\nproduction warehouse in Las Vegas, Nevada. Agent Cosey did not participate in that\\n\\n 23\\n\\f“raid,” but heard about it and called Ritchie, who invited him to visit the Zencense\\n\\nfacility on Burgess Road in Pensacola, Florida. Cosey met Ritchie there the next day.\\n\\nRitchie showed him the facility, described the spice manufacturing and packaging\\n\\nprocess, identified the spice’s chemical additives, and gave Cosey lab reports and spice\\n\\nsamples. At one point Ritchie said to Cosey that “if [Cosey] told [Ritchie] he was doing\\n\\nanything illegal, he would close it down that day.” J.A. 2087. Cosey testified in his\\n\\ndeposition that he did not know at that time whether the spice contained a controlled\\n\\nsubstance or analogue and he offered no opinion to Ritchie that what he was doing was\\n\\neither legal or illegal.\\n\\n Cosey and Ritchie met again in Pensacola on September 13. Along with other law\\n\\nenforcement officers, Cosey inspected a Zencense facility on Copter Road with Ritchie,\\n\\nwho also met privately with Cosey and other officers and obliquely discussed the legality\\n\\nof his business. Ritchie said to them, “I know if law enforcement wants to put somebody\\n\\nout of business that’s not doing anything illegal, there’s means to do it.” J.A. 2101. He\\n\\nreiterated that selling Zencense’s spice was “not illegal,” J.A. 2102, but told Cosey “that\\n\\nif his products were made illegal, if those additives in his products were made illegal, that\\n\\nhe would destroy the product right then and there.” J.A. 2109–10. Cosey responded, “If\\n\\nwhat you are producing and distributing is not a controlled substance, I cannot—law\\n\\nenforcement cannot and will not engage—or interfere in your, you know, ability to\\n\\nconduct commerce.” J.A. 2101.\\n\\n The officers then drove to Zencense’s Burgess Road location and Ritchie\\n\\ncontinued his conversation with Cosey and the officers by asking, “Am I going to\\n\\n 24\\n\\fcontinue to be looked at, targeted by law enforcement?” J.A. 2106. Cosey responded,\\n\\n“While what you are doing may be legal now, it could change in the future.” J.A. 2106.\\n\\nHe further explained, “[J]ust because something is legal today doesn’t mean it might not\\n\\nbe illegal in the future, because the compounds are constantly—they are adding\\n\\ncompounds to the banned list all the time.” J.A. 2107.\\n\\n Before trial, Defendants sought, through a Touhy request, to compel Cosey to\\n\\ntestify about these conversations to establish the affirmative defense of entrapment by\\n\\nestoppel. See United States v. Clark, 986 F.2d 65, 69 (4th Cir. 1993) (“The defense of\\n\\nentrapment by estoppel is available when a government official tells the defendant that\\n\\ncertain activity is legal, the defendant commits the activity in reasonable reliance on that\\n\\nadvice, and prosecution for the conduct would be unfair.”). The district court declined to\\n\\ncompel Cosey’s testimony, holding that the proffered evidence was insufficient to\\n\\nestablish the entrapment by estoppel defense because the spice business had been in full\\n\\nswing for months when Ritchie first talked to Cosey. The court explained that the\\n\\nelement of reasonable reliance was missing: “[Y]ou cannot rely on something that\\n\\nhappened seven months later to try to raise the suggestion that there was some reliance on\\n\\nsomething the government said . . . when the illegal conduct is up and running seven\\n\\nmonths before.” J.A. 356–57.\\n\\n In light of this ruling, Defendants changed course and proffered the same\\n\\ntestimony as general evidence that they lacked the mens rea required to violate the\\n\\nAnalogue Act. They argued that on August 9, the date of the first charged spice shipment\\n\\nto Virginia, they believed distributing spice containing XLR-11 was legal because Cosey\\n\\n 25\\n\\fnever told Ritchie on July 26 that doing so was illegal. The district court denied\\n\\nDefendants’ alternate proffer as a “backdoor way to circumvent the Court’s ruling” and\\n\\nreiterated that Cosey’s testimony was inadmissible because he spoke to Ritchie after the\\n\\nspice enterprise was fully operational. J.A. 357.\\n\\n b.\\n\\n We affirm the district court’s exclusion of Cosey’s testimony because it was\\n\\nirrelevant in two ways. First, Cosey never indicated that selling XLR-11 was legal. Each\\n\\ntime Ritchie asked whether his business was lawful, Cosey responded noncommittally,\\n\\nsaying things like, “If what you are producing and distributing is not a controlled\\n\\nsubstance, . . . law enforcement cannot and will not . . . interfere in your . . . ability to\\n\\nconduct commerce.” J.A. 2101. Even Cosey’s warning on September 13 that “just\\n\\nbecause something is legal today doesn’t mean it might not be illegal in the future,” J.A.\\n\\n2107, was not an affirmative statement that selling XLR-11 was currently legal. Nothing\\n\\nCosey said to Defendants could reasonably support a reliance on an official\\n\\nrepresentation that their actions were lawful, so Cosey’s testimony could not reveal\\n\\nDefendants’ mens rea on that point.\\n\\n Second, Cosey’s testimony is not probative of Defendants’ mens rea because his\\n\\nconversations with Defendants were unrelated to the similarity of XLR-11 and JWH-018.\\n\\nAs Cosey’s September 13 conversation with Ritchie occurred after the August 9\\n\\nshipment, it is irrelevant to showing Defendant’s intent on August 9. But even the July 26\\n\\nconversation, which followed months of Defendants’ regular sales of spice with XLR-11\\n\\nbut preceded the August 9 shipment, would not have tended to negate Defendants’\\n\\n 26\\n\\fknowledge of substantial similarity on August 9. This is because Cosey simply inspected\\n\\nthe Zencense facilities and did not discuss the chemical structure or effects of XLR-11 or\\n\\nJWH-018 with Defendants on July 26. In fact, Cosey stated in his deposition that he\\n\\ncould not verify Ritchie’s description of the spice’s contents on July 26 because he had\\n\\nnot yet seen a DEA lab report on the substance. Therefore, Cosey did not know whether\\n\\nthe spice contained XLR-11, and none of his comments to Defendants could have\\n\\nnegated their knowledge of whether their spice additive was substantially similar to\\n\\nJWH-018. Cosey’s proffered testimony is thus irrelevant, and the district court did not\\n\\nabuse its discretion in excluding it. See Fed. R. Evid. 401(a) (noting that evidence is\\n\\nrelevant if “it has any tendency to make a fact more or less probable than it would be\\n\\nwithout the evidence”). 14\\n\\n\\n\\n 14\\n To bolster their innocent intent argument, Defendants cite United States v.\\nMakkar, 810 F.3d 1139 (10th Cir. 2015), an out-of-circuit case in which the defendants\\nwere charged with distributing a controlled substance analogue via “incense.” Id. at\\n1147–48. To show they lacked knowledge of the substance’s chemical structure, those\\ndefendants proffered evidence that “they asked state law enforcement agents to test the\\nincense to assure its legality under state law—and that they offered to stop selling the\\nincense until the results came in.” Id. at 1147. The district court excluded the evidence,\\nbut the Tenth Circuit reversed, holding the defendant’s proffer was not “merely\\ncumulative” and characterizing it this way:\\n As a matter of common sense and our collective experience, we have a hard\\n time imagining more powerful proof that a defendant didn’t know the\\n chemical composition of a drug, and didn’t know it was substantially\\n similar to an unlawful substance, than evidence that he turned to law\\n enforcement for information about the drug’s composition and offered to\\n suspend sales until tests could be performed.\\nId. at 1147–48. Defendants here argue that because they, too, “turned to law\\nenforcement” for advice, see id. at 1148, Cosey’s testimony should have been admitted as\\nproof of their innocent intent.\\n(Continued)\\n 27\\n\\f We therefore affirm the district court’s exclusion of Cosey’s irrelevant testimony.\\n\\nAs any error in excluding it did not “affect the outcome of [the] case,” see Ferguson, 752\\n\\nF.3d at 619, it was harmless, and we hold the district court did not violate Defendants’\\n\\ncompulsory process rights by excluding Cosey from testifying.\\n\\n 2.\\n\\n a.\\n\\n Attorney McGee: In late July or early August 2012, after federal officials began\\n\\ninvestigating Zencense, Defendants contacted Florida attorney David McGee to represent\\n\\nthem. After conducting some preliminary research, McGee agreed to represent\\n\\nDefendants. They retained him on August 6, three days before the first charged shipment.\\n\\nAt points during McGee’s representation of Defendants, he consulted chemists about the\\n\\nchemical structures of XLR-11 and JWH-018, and several chemists opined to him that\\n\\n\\n\\n\\n Not only do Defendants rely on a case we need not follow, but their analogy is\\ncritically flawed. The Makkar defendants were only retailers of the incense and thus\\ndisputed their knowledge of the ingredients’ chemical structure and physiological effects.\\nThat is, they challenged the first of the two Analogue Act requirements the Government\\nhas to prove when it proceeds under the substantial similarity method of proof.\\nMcFadden, 823 F.3d at 223; see 21 U.S.C. § 802(32)(A). Here, Defendants were spice\\nproducers and are not challenging that they knew the chemical structure of XLR-11. They\\nadmit that they reformulated their spice to include XLR-11 based on their customers’\\ndemands and routinely acquired detailed lab reports identifying the spice’s composition.\\nDefendants are instead challenging the second element the Government must prove: that\\nDefendants knew (based on its chemical structure and physiological effects) that XLR-11\\nand JWH-018 were “substantially similar” within the meaning of 21 U.S.C.\\n§ 802(32)(A). Because Makkar’s holding addressed the first Analogue Act requirement,\\nnot the second, it has no bearing on our decision here.\\n\\n 28\\n\\fthe chemicals are not substantially similar. McGee kept Defendants apprised of his\\n\\nresearch.\\n\\n After Defendants were indicted, McGee represented them in pretrial proceedings\\n\\nbelow. During a hearing on the propriety of McGee’s joint representation of Defendants,\\n\\nthe district court asked him whether Defendants intended to assert the affirmative defense\\n\\nof advice of counsel. McGee responded that they would not use that defense because he\\n\\n“never” advised them that selling XLR-11 was legal:\\n\\n THE COURT: Well, you know, what are your main defenses in this case? I\\n don’t know whether you want to reveal your defense strategy—\\n\\n MR. McGEE: I have revealed my defense strategy to the government since\\n January of 2013. It has not changed, it will not change. They know what\\n our defense is.\\n\\n THE COURT: . . . . Is one of the potential defenses that they acted pursuant\\n to legal counsel?\\n\\n MR. McGEE: Not Mr. Miller or myself. There is a possibility that one of\\n the defenses will be another lawyer before us, not us, gave them advice\\n with regard to the legality of these substances. It was not Mr. Miller, it was\\n not myself . . . .\\n . . . . We have never given such advice and would not give such\\n advice.\\n\\nSupp. J.A. 12–13. The district court ultimately disqualified McGee from jointly\\n\\nrepresenting Defendants, and they each retained new counsel.\\n\\n Yet when Defendants secured new counsel, one of the affirmative defenses raised\\n\\nwas reliance on McGee’s legal advice that XLR-11 was not substantially similar to JWH-\\n\\n018 because some chemists had reached that conclusion and told McGee. The district\\n\\ncourt prohibited Defendants from asserting that defense because they could not establish\\n\\n\\n 29\\n\\fits three elements: sharing relevant facts with counsel, receiving legal advice based on\\n\\nthose facts, and reasonably relying on that advice. See United States v. Perry, 30 F. Supp.\\n\\n3d 514, 541 (E.D. Va. 2014) (listing the defense’s elements). The district court found that\\n\\nDefendants did not disclose all relevant facts to McGee because an Analogue Act\\n\\ndistribution offense requires distribution of a product “for human consumption,” see\\n\\nMcFadden, 823 F.3d at 223, but Defendants labeled theirs “[n]ot for human\\n\\nconsumption,” J.A. 633, and never told McGee consumers were smoking it. Further,\\n\\nDefendants “consulted counsel after [they were] already engaged in selling spice . . . with\\n\\nUR-144 and XLR-11 for human consumption,” so they did not sell it in reliance on\\n\\nMcGee’s advice. Memorandum Order at 7, United States v. Ritchie, No. 4:15-cr-18-RAJ-\\n\\nLRL (E.D. Va. Oct. 3, 2016), ECF No. 462.\\n\\n After the district court barred reliance on the advice of counsel defense,\\n\\nDefendants changed course again and offered McGee’s testimony for the same purpose\\n\\nthey alternatively proposed for Agent Cosey’s. That is, outside of the affirmative defense,\\n\\nthe same evidence was proffered as general evidence of Defendants’ lack of mens rea in\\n\\nselling XLR-11. Defendants now represented McGee’s discussions with the chemists as\\n\\nshowing they relied on their attorney’s belief that their August 9 spice shipment was legal\\n\\nbecause it did not contain a controlled substance analogue.\\n\\n The district court excluded McGee’s testimony as hearsay, explaining that “the\\n\\nstate-of-mind exception [to hearsay] goes to the declarant and doesn’t go to this\\n\\n\\n\\n\\n 30\\n\\fdefendant.” 15 J.A. 350. Moreover, the court ruled, McGee’s testimony, like Cosey’s, was\\n\\nirrelevant because Defendants were already selling XLR-11 when McGee consulted the\\n\\nchemists. In the court’s view, “if the point is to show their state of mind at the time they\\n\\ncommenced the criminal conduct, and the criminal conduct commenced before that\\n\\nhearsay statement took place in the first place,” “it would be irrelevant.” J.A. 351.\\n\\n b.\\n\\n We disagree with the district court. As we understand Defendants’ argument, they\\n\\nsought to introduce McGee’s testimony to show they had an innocent state of mind when\\n\\nshipping XLR-11 on August 9. 16 If McGee timely transmitted to Defendants the\\n\\nchemists’ opinions as they claim, his testimony was not irrelevant; rather, it could have\\n\\nbeen probative of Defendants’ mens rea.\\n\\n According to Defendants, they shipped XLR-11 on August 9 and throughout the\\n\\nalleged conspiracy in part because they relied on the research of chemical experts whose\\n\\nopinions McGee relayed. In Defendants’ view, if McGee had consulted chemists who\\n\\ndetermined XLR-11 was substantially similar to JWH-018, told Defendants about those\\n\\nopinions before August 9, and Defendants trusted those opinions, “they would not have\\n\\nmade their sale to [the retailer in Virginia] on August 8, 2012, or at any time thereafter.”\\n\\n\\n 15\\n The district court was referring to Ritchie, who proffered McGee’s testimony,\\nbut the ruling applied to both Defendants.\\n 16\\n It is unclear to what extent Defendants still seek to press an advice of counsel\\ndefense, but we believe the district court properly barred reliance on that affirmative\\ndefense because Defendants could not support it. Consequently, we will examine\\nMcGee’s testimony not as legal advice, but as general testimony bearing on Defendants’\\nstate of mind on August 9.\\n\\n 31\\n\\fOpening Br. 43. We agree with Defendants that McGee’s testimony about the chemists’\\n\\nopinions could be probative of their knowledge of the substantial similarity of XLR-11\\n\\nand JWH-018 on August 9.\\n\\n Defendants’ argument fails, of course, if McGee consulted chemical experts or\\n\\nreported his findings after the August 9 shipment. If Defendants received information\\n\\nfrom McGee later, his testimony could not provide context for Defendants’ state of mind\\n\\nat the time of the alleged crime. But the record is unclear about when McGee consulted\\n\\nthe chemists and when or what he informed Defendants that he had learned, so we are\\n\\nunable to conclude on this record that his exclusion from trial was harmless. It is possible\\n\\nthat McGee’s testimony, if the jury believed it, could have affected the outcome of the\\n\\ncase. Ferguson, 752 F.3d at 619. If so, the district court abused its discretion in excluding\\n\\nhim.\\n\\n Therefore, we vacate the district court’s exclusion of McGee’s testimony and\\n\\nremand for further proceedings consistent with this opinion. Defendants must be allowed\\n\\nto develop the evidence on the narrow issue of when McGee consulted chemists about the\\n\\nsimilarity of XLR-11 and JWH-018 for Defendants’ benefit, when McGee informed\\n\\nDefendants about the chemists’ research, and what he told them. We note, however, that\\n\\nMcGee’s testimony, if a factual basis is established, shall be limited to the issue of the\\n\\nchemists’ research and no other subject. Further, our holding is consistent with the rules\\n\\nof hearsay in that McGee can only relay the chemists’ opinions if they are offered not for\\n\\ntheir truth, but solely for their effect on Defendants’ state of mind. See Fed. R. Evid.\\n\\n801(c) (defining hearsay to include only statements “offer[ed] in evidence to prove the\\n\\n 32\\n\\ftruth of the matter asserted in the statement”). McGee may testify as to facts only. He\\n\\nmay testify about his timely conversations with chemists and with Defendants, but he\\n\\nmay not speculate as to what Defendants may have been thinking at the time of their\\n\\nalleged criminal acts.\\n\\n 3.\\n\\n a.\\n\\n Ritchie: Finally, if allowed, Ritchie would have testified that he and Galecki\\n\\nshipped the spice on August 9 with an innocent state of mind because they consulted with\\n\\nattorneys—including McGee—and chemists and “relied on [their advice] in going\\n\\nforward and operated under the assumption that [XLR-11 and JWH-018] were not\\n\\nsubstantially similar.” J.A. 352. The district court excluded Ritchie’s testimony as\\n\\nhearsay because others’ statements could not reveal Ritchie’s state of mind and the\\n\\ntestimony did not fit into the state-of-mind hearsay exception. See Fed. R. Evid. 803(3).\\n\\nThe court saw Defendants’ maneuver as another “backdoor” attempt to inject evidence\\n\\ninto the trial that did not meet the threshold for one of the unsupported affirmative\\n\\ndefenses. J.A. 357.\\n\\n b.\\n\\n To the extent Ritchie’s testimony about Defendants’ state of mind on August 9 is\\n\\nbased on his conversations with McGee, it similarly requires sufficient evidence\\n\\nregarding the content and timing of the consultation. As discussed above, if there is\\n\\ninsufficient foundation shown on remand to permit McGee’s testimony about the\\n\\nchemists he consulted, then Ritchie’s testimony on this issue must also be excluded.\\n\\n 33\\n\\fRitchie, of course, can still testify as to his own state of mind without reference to\\n\\nMcGee. We therefore vacate the district court’s exclusion of Ritchie’s testimony on this\\n\\npoint and remand for the district court to reexamine Ritchie’s testimony in light of any\\n\\nfurther development of McGee’s testimony, as limited above. As in McGee’s testimony,\\n\\nany discussion of the chemists’ opinions in Ritchie’s testimony can only be offered for its\\n\\neffect on Defendants’ state of mind and not for its truth. See Fed. R. Evid. 801(c).\\n\\n\\n\\n IV.\\n\\n As a final matter, Defendants have requested we reassign this case on remand to a\\n\\ndifferent district judge, but they have alleged no express bias by the sitting judge.\\n\\nReassignment is only warranted in “unusual circumstances,” none of which exist here.\\n\\nUnited States v. North Carolina, 180 F.3d 574, 582–83 (4th Cir. 1999) (internal quotation\\n\\nmarks omitted). We have examined the record and found no express bias, nor have we\\n\\nseen any indication that the district judge would jeopardize the “fundamental fairness” of\\n\\nany continued proceedings in this case. See G.G. ex rel. Grimm v. Gloucester Cty. Sch.\\n\\nBd., 822 F.3d 709, 726 (4th Cir. 2016), vacated and remanded on other grounds by 137\\n\\nS. Ct. 1239 (2017) (mem.). Accordingly, we decline to reassign the case on remand. 17\\n\\n\\n\\n\\n 17\\n Our rulings in this case expand Defendants’ options for presenting evidence in a\\nnew trial. Nonetheless, Defendants are under no requirement to present the items of\\nevidence discussed above, nor is the district court required to make any further specific\\nevidentiary decisions save for those consistent with this opinion.\\n\\n 34\\n\\f V.\\n\\nFor the reasons stated above, the district court’s decisions are\\n\\n AFFIRMED IN PART, REVERSED IN PART,\\n VACATED, AND REMANDED.\\n\\n\\n\\n\\n 35\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2964,"cells":{"id":{"kind":"number","value":4643704,"string":"4,643,704"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee, v. Benitez Auguarius MOODY, Defendant - Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Benitez Moody"},"decision_date":{"kind":"string","value":"2019-07-29"},"docket_number":{"kind":"string","value":"18-4213"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Motz, Agee, Richardson\", \"parties\": \"\", \"opinions\": [{\"author\": \"RICHARDSON, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-4213\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nBENITEZ AUGUARIUS MOODY,\\n\\n Defendant - Appellant.\\n\\n\\n\\nAppeal from the United States District Court for the Eastern District of Virginia at\\nNorfolk. Henry Coke Morgan, Jr., Senior District Judge. (2:16-cr-00124-HCM-DEM-1)\\n\\n\\nArgued: December 13, 2018 Decided: July 29, 2019\\n\\n\\nBefore MOTZ, AGEE, and RICHARDSON, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Richardson wrote the opinion, in which Judge\\nMotz and Judge Agee concurred.\\n\\n\\nARGUED: James R. Theuer, JAMES R. THEUER, PLLC, Norfolk, Virginia, for\\nAppellant. Daniel Taylor Young, OFFICE OF THE UNITED STATES ATTORNEY,\\nAlexandria, Virginia, for Appellee. ON BRIEF: G. Zachary Terwilliger, United States\\nAttorney, Alexandria, Virginia, Sherrie S. Capotosto, Assistant United States Attorney,\\nOFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.\\n\\fRICHARDSON, Circuit Judge:\\n\\n After a jury convicted Benitez Auguarius Moody of federal drug and firearm\\n\\noffenses, he sought an evidentiary hearing to challenge a facially sufficient search\\n\\nwarrant affidavit. Such hearings are called “Franks hearings,” named for the Supreme\\n\\nCourt’s decision permitting them in Franks v. Delaware, 438 U.S. 154 (1978). In his\\n\\nrequest, Moody argued that a police officer’s trial testimony contradicted her search\\n\\nwarrant affidavit that had led to evidence used at his trial. The district court, however,\\n\\nrefused to hold a Franks hearing, finding that Moody had failed to make the necessary\\n\\nthreshold showing. We affirm.\\n\\n I.\\n\\n On March 24, 2016, as part of a larger investigation into narcotics trafficking,\\n\\npolice used a confidential informant to buy heroin from Moody, a suspected drug dealer.\\n\\nLater that evening, Portsmouth Police Detective Beth Shelkey applied for warrants to\\n\\nsearch Moody’s home (1212 Lindsay Avenue) and vehicle (a black BMW). Shelkey’s\\n\\nsupporting affidavit described the investigation, including the controlled heroin purchase\\n\\non March 24 as well as other drug transactions:\\n\\n During the past 6 months, this affiant and other members of the Portsmouth\\n Police Department [Special Investigations Unit] have utilized Confidential\\n Informants who have been up to and inside of 1212 Lindsay Ave\\n Portsmouth, VA and purchased quantities of heroin and cocaine from\\n MOODY. During the investigation controlled purchases have been\\n conducted directly from 1212 Lindsay Ave Portsmouth VA and from a\\n 2004 black in color BMW convertible displaying Virginia tags VLD-9617\\n reregistered to MOODY.\\n\\n ....\\n\\n\\n 2\\n\\f Within the past 24hrs this affiant and other members of the Portsmouth\\n Police Department utilized a Confidential Informant who placed a\\n telephone call to MOODY asking to purchase heroin from MOODY.\\n MOODY arranged to meet the Confidential Informant in a pre arranged\\n location. During this controlled purchase, MOODY and other co-\\n conspirators (two unidentified black females) were observed leaving from\\n 1212 Lindsay Ave Portsmouth, VA and surveilled traveling to the pre\\n arranged location and selling the Informant heroin. The heroin was\\n recovered by members of the Portsmouth Police Department Special\\n investigations Unit, field tested and resulted positive for heroin.\\n\\nJ.A. 446. A state magistrate issued the warrants that same day. The resulting searches\\n\\nuncovered four firearms, drugs, drug paraphernalia, and thousands of dollars in cash.\\n\\nMoody was ultimately indicted by a federal grand jury on multiple counts of drug\\n\\npossession with intent to distribute, drug distribution, and firearm offenses.\\n\\n Moody chose to go to trial. The Government called one of the informants\\n\\nidentified in the affidavit, who testified about her practice of buying drugs from Moody\\n\\nand recounted her controlled heroin purchase on March 24. The informant explained that\\n\\nshe had arranged the drug purchase with Moody on the telephone and that two of his\\n\\nassociates handled the physical transfer of drugs and money at the meeting location. In\\n\\ndoing so, she acknowledged that Moody was not physically present for the drug delivery.\\n\\n This informant’s testimony was echoed by Detective Shelkey, who also testified\\n\\nthat Moody was not physically present for the exchange. Shelkey explained that the\\n\\ninformant told her that two unidentified women delivered the drugs. And she testified\\n\\nthat the surveillance team told her that these women came from Moody’s house. Shelkey\\n\\nalso confirmed the informant’s testimony that Moody “directed” the transaction remotely,\\n\\n\\n\\n\\n 3\\n\\fa fact that Shelkey herself knew from listening to the informant’s phone call with Moody.\\n\\nJ.A. 246–47.\\n\\n After three days of testimony, the jury convicted Moody on three drug counts and\\n\\ntwo firearm counts but acquitted him on ten other drug charges. Only then did Moody\\n\\nseek a Franks hearing. In support of this request, he claimed that Shelkey’s affidavit\\n\\nfalsely stated that he was physically present for the drug exchange on March 24. The\\n\\ndistrict court, without deciding whether the post-verdict motion was timely, denied\\n\\nMoody’s request on the merits, concluding that he had failed to satisfy the preliminary\\n\\nshowing needed to justify a Franks hearing.\\n\\n After sentencing, Moody timely appealed the Franks ruling. We have jurisdiction\\n\\nunder 28 U.S.C. § 1291. And as always, we review the district court’s legal\\n\\ndeterminations de novo and its factual findings for clear error. United States v. White,\\n\\n850 F.3d 667, 672 (4th Cir. 2017).\\n\\n II.\\n\\n On appeal, Moody argues that a Franks hearing was required because Shelkey\\n\\nintentionally or recklessly made the false statement that Moody was physically present\\n\\nduring the March 24 controlled purchase. He also raises several other arguments about\\n\\nthe affidavit for the first time on appeal. After describing the legal framework, we\\n\\naddress each in turn.\\n\\n A.\\n\\n “An accused is generally not entitled to challenge the veracity of a facially valid\\n\\nsearch warrant affidavit.” United States v. Allen, 631 F.3d 164, 171 (4th Cir. 2011). A\\n\\n 4\\n\\fFranks hearing provides a criminal defendant with a narrow way to attack the validity of\\n\\nan affidavit. But to obtain the hearing, a defendant must make a “substantial preliminary\\n\\nshowing” that (1) law enforcement made “a false statement”; (2) the false statement was\\n\\nmade “knowingly and intentionally, or with reckless disregard for the truth”; and (3) the\\n\\nfalse statement was “necessary to the finding of probable cause.” White, 850 F.3d at 673\\n\\n(quoting Franks, 438 U.S. at 155–56). Given the “presumption of validity with respect to\\n\\nthe affidavit supporting the search warrant,” Franks, 438 U.S. at 171, a defendant must\\n\\nsatisfy this “heavy” burden before a hearing takes place. United States v. Tate, 524 F.3d\\n\\n449, 454 (4th Cir. 2008).\\n\\n The first required showing, of falsity, cannot be conclusory and must rest on\\n\\naffidavits or other evidence. See Franks, 438 U.S. at 171; United States v. Clenney, 631\\n\\nF.3d 658, 663 (4th Cir. 2011). As a result, the defendant cannot rely on a purely\\n\\nsubjective disagreement with how the affidavit characterizes the facts. Rather, there must\\n\\nbe evidence showing that the statements at issue are objectively false.\\n\\n The second showing, requiring intentional falsity or reckless disregard for the\\n\\ntruth, is just as demanding. An innocent or even negligent mistake by the officer will not\\n\\nsuffice. Franks, 438 U.S. at 170; United States v. Lull, 824 F.3d 109, 115–16 (4th Cir.\\n\\n2016). And here too, the defendant must provide facts—not mere conclusory\\n\\nallegations—indicating that the officer subjectively acted with intent to mislead, or with\\n\\nreckless disregard for whether the statements would mislead, the magistrate. See United\\n\\nStates v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990).\\n\\n\\n\\n 5\\n\\f Finally, the defendant must show materiality—that is, that the false statements\\n\\nwere “necessary to the finding of probable cause.” Franks, 438 U.S. at 156; United\\n\\nStates v. Wharton, 840 F.3d 163, 168 (4th Cir. 2016). A district court may not hold a\\n\\nFranks hearing where, after stripping away the allegedly false statements, the truthful\\n\\nportions of the warrant application would still support probable cause. This limitation\\n\\nreflects the ultimate purpose of Franks: “to prevent the admission of evidence obtained\\n\\npursuant to warrants that were issued only because the issuing magistrate was misled into\\n\\nbelieving that there existed probable cause.” United States v. Friedemann, 210 F.3d 227,\\n\\n229 (4th Cir. 2000).\\n\\n We note that the Federal Rules require certain motions, including a motion for a\\n\\nFranks hearing, to be made before trial “if the basis for the motion is then reasonably\\n\\navailable and the motion can be determined without a trial on the merits.” Fed. R. Crim.\\n\\nP. 12(b)(3)(C); see White, 850 F.3d at 673. On appeal, the Government argues that the\\n\\nbasis for making this preliminary showing was reasonably available to Moody before\\n\\ntrial. Like the district court, however, we decline to decide whether the motion was\\n\\ntimely and instead affirm on the merits.\\n\\n B.\\n\\n As in his motion below, Moody argues on appeal that Shelkey’s affidavit falsely\\n\\nsuggested that he was physically present for the controlled purchase on March 24.\\n\\nBecause the informant and Shelkey both testified at trial that Moody arranged the\\n\\ntransaction but was not physically present at the point of sale, Moody argues that the\\n\\naffidavit was false, and intentionally (or at least recklessly) so.\\n\\n 6\\n\\f According to Moody, the following sentence from Shelkey’s affidavit should be\\n\\nread to say that he was present for “selling” the heroin: “During this controlled purchase,\\n\\nMOODY and other co-conspirators (two unidentified black females) were observed\\n\\nleaving from 1212 Lindsay Ave Portsmouth, VA and surveilled traveling to the pre\\n\\narranged location and selling the Informant heroin.” J.A. 446. As the district court\\n\\nrecognized, there is ambiguity here. The language says that three people (Moody and his\\n\\ntwo conspirators) did three things: left the house, traveled to the buy location, and sold\\n\\nheroin.\\n\\n The affidavit lacks precision regarding whether all three people did all three\\n\\nthings, or whether the activities were somehow divided up—a lack of precision that is\\n\\nperhaps understandable, as conspirators commonly split tasks among themselves. As a\\n\\nresult, Shelkey could have intended at least three different meanings: (1) all three\\n\\nsubjects were seen “leaving” the house, “traveling” to the transaction site, and “selling”\\n\\nthe informant heroin, (2) all three subjects were seen “leaving” and “traveling,” but only\\n\\na subset (the two women) were seen “selling” the informant heroin; or (3) only the two\\n\\nwomen were seen “traveling” and “selling” the informant heroin, while Moody was only\\n\\nseen “leaving” with them. Only the first interpretation of the affidavit would clearly be\\n\\nfalse. 1 And, to be fair, the most natural reading of the affidavit does seem to say that\\n\\nMoody was at the scene of the transaction with the informant.\\n\\n\\n 1\\n Moody cites the testimony of Officer Roesch, a member of the SWAT team that\\nexecuted the search, to suggest that Moody never even left the house. But Roesch’s\\ntestimony says no such thing. He merely summarized the contents of an affidavit\\n(Continued)\\n 7\\n\\f Yet warrant affidavits are “normally drafted by nonlawyers in the midst and haste\\n\\nof a criminal investigation.” United States v. Ventresca, 380 U.S. 102, 108 (1965)\\n\\n(noting also that “[t]echnical requirements of elaborate specificity once exacted under\\n\\ncommon law pleadings have no proper place in this area”). They must be interpreted in a\\n\\ncommonsense manner, neither held to the standard of what judges or lawyers feel they\\n\\nwould have written if given the opportunity nor “judged as an entry in an essay contest.”\\n\\nUnited States v. Harris, 403 U.S. 573, 579 (1971) (quoting Spinelli v. United States, 393\\n\\nU.S. 410, 438 (1969) (Fortas, J., dissenting)). Mere imprecision does not, by itself, show\\n\\nfalsity.\\n\\n Even assuming that the affidavit was false, Moody has failed to show intentional\\n\\nfalsity or a reckless disregard for the truth by Shelkey. Given the lack of precision in the\\n\\nstatement at issue, we cannot reasonably infer that Shelkey acted with intent to mislead or\\n\\nwith reckless disregard of whether the statements would mislead. See United States v.\\n\\nChavez, 902 F.2d 259, 265 (4th Cir. 1990); cf. United States v. Lyon, 567 F.2d 777, 782\\n\\n(8th Cir. 1977) (explaining that “ambiguity does not in every case constitute recklessness\\n\\nor intent to deceive”). Rather, it appears Shelkey honestly believed that Moody had left\\n\\nthe house with the two women, who then delivered the drugs at his direction, and her\\n\\n\\n\\n\\nsupporting the criminal complaint against Moody. See J.A. 423–28. There was no\\nfoundation showing that Roesch was involved in the surveillance of Moody’s house at\\nall. Thus, this evidence could not show, one way or the other, whether Moody was seen\\nleaving with the two women. And for her part, Shelkey testified that the surveillance\\nteam told her Moody had left the house. J.A. 292.\\n\\n\\n 8\\n\\ffailure to specify that Moody was not present at the transaction reflected, at most, a lack\\n\\nof care.\\n\\n Moreover, Moody’s presence at the exchange was unnecessary to establishing\\n\\nprobable cause. See Wharton, 840 F.3d at 168. The affidavit explained that Moody had\\n\\norganized the sale of heroin over the phone and that the runners delivering the heroin had\\n\\nleft from his house. This established probable cause that instrumentalities or evidence of\\n\\ncrime would be found in Moody’s house, making Moody’s presence for the delivery\\n\\nsimply irrelevant. That shows any falsity was immaterial, while also suggesting that\\n\\nShelkey had no motive to lie.\\n\\n C.\\n\\n While Moody’s Franks motion below only raised his lack of physical presence, he\\n\\nmakes five additional arguments for the first time on appeal. These unpreserved claims\\n\\nof error are subject to the rigorous plain-error standard. United States v. Olano, 507 U.S.\\n\\n725, 732 (1993) (noting that reversal under this standard requires an error that is plain\\n\\nand that both affects “substantial rights” and “seriously” affects “the fairness, integrity or\\n\\npublic reputation of judicial proceedings” (citation omitted)). Moody’s additional claims\\n\\nfail this rigorous test, and in fact would fail even without subjecting them to more\\n\\nstringent review.\\n\\n\\n\\n\\n 9\\n\\f First, Moody contends that Shelkey’s affidavit falsely alleged that he dealt\\n\\nnarcotics “directly” from his home at 1212 Lindsay Ave. 2 Shelkey stated in her affidavit:\\n\\n“During the investigation controlled purchases have been conducted directly from 1212\\n\\nLindsay Ave Portsmouth VA . . . .” J.A. 446. Moody maintains that this statement\\n\\nconflicts with Shelkey’s trial testimony that Moody “would not meet people at the house\\n\\nbut [] would go to different locations.” J.A. 250.\\n\\n Moody’s claim of falsity turns on the whether a purchase “conducted directly”\\n\\nfrom the house necessarily means that the transfer of the drugs to the informant happened\\n\\ninside the house. 3 Moody did conduct the March 24 controlled purchase from the house\\n\\nin part: he arranged the transaction from his house by phone and sent his runners from\\n\\nthere to deliver the drugs. But Moody might say that the adverb “directly” implies that\\n\\nthe transfer to the informant (as opposed to the transfer from Moody to his co-\\n\\nconspirators) occurred inside the house.\\n\\n Even if we strictly interpreted Shelkey’s statement and found this statement to be\\n\\nfalse, there is still no evidence of her mental state or of materiality. This nuanced, after-\\n\\nthe-fact reading does nothing to show Shelkey acted with intent to mislead or with\\n\\n 2\\n The briefs suggest that Moody raised this contention before the district court, but\\nwithout providing any citation. Our independent review of the record uncovered no\\ninstance of this claim being raised below. But again, Moody’s prior failure to raise this\\nissue makes no difference to the outcome of this case.\\n 3\\n It is unclear from the record whether other informants obtained drugs from\\nMoody inside his house. It is clear that Moody did not keep all of his customers away\\nfrom his home: another police informant was found inside Moody’s house during the\\nexecution of the search warrant.\\n\\n\\n 10\\n\\freckless disregard of whether the statement would mislead. And again, the precise\\n\\nlocation of the drug transfers was not important to a finding of probable cause necessary\\n\\nto search the house, because the simple fact is that Moody directed transfers and\\n\\ndispatched runners from there. This is enough to establish probable cause that evidence\\n\\nof the criminal conduct would be found in the house. See United States v. Grossman, 400\\n\\nF.3d 212, 217–18 (4th Cir. 2005) (holding that there is probable cause to search the part-\\n\\ntime residence of a defendant known to deal drugs, despite the lack of direct evidence\\n\\nthat drugs are kept there). Contrary to Moody’s conclusory contention that Shelkey’s\\n\\nstatement had the purpose “to mislead the magistrate into believing 1212 Lindsay Avenue\\n\\nwas used for drug distribution,” Appellant’s Brief at 11, it is immaterial whether the\\n\\ninformant received the heroin inside the house or at a nearby parking lot. We therefore\\n\\nreject Moody’s claim that Shelkey’s statement about conducting a controlled purchase\\n\\nfrom his house required a Franks hearing.\\n\\n Second, Moody argues that Shelkey’s affidavit deceptively described the state of\\n\\nthe investigation by misrepresenting the number of controlled purchases and confidential\\n\\ninformants as well as by falsely stating that an informant had been inside his home and\\n\\nobserved drug paraphernalia. His primary evidence for this is that Shelkey’s trial\\n\\ntestimony only detailed the controlled purchase on March 24, which took place away\\n\\nfrom his house. See id.\\n\\n\\n\\n\\n 11\\n\\f This claim largely fails to show falsity. Shelkey testified about conducting other\\n\\npurchases from Moody, see J.A. 245, 4 and Officers Adams and Monteith testified about\\n\\nanother informant who had been involved in the investigation, including by helping\\n\\ncreate a diagram of the interior of the house, but then stopped cooperating fully. While\\n\\nMoody makes the conclusory claim that there were no confidential informants who\\n\\nobserved drugs, guns, or paraphernalia in the house, Appellant’s Brief at 14, this second\\n\\ninformant was in Moody’s house during the search that uncovered all three. Moody has\\n\\ntherefore failed to provide evidence beyond conclusory allegations to cast doubt on\\n\\nShelkey’s statements. See United States v. McKenzie-Gude, 671 F.3d 452, 462 (4th Cir.\\n\\n2011) (noting that a mere contradiction of a warrant application does not require a Franks\\n\\nhearing); United States v. Pace, 898 F.2d 1218, 1227 (7th Cir. 1990) (“[The defendant’s]\\n\\nself-serving statement in his affidavit that he never accepted bets on the number listed in\\n\\nthe warrant affidavit is not sufficient to require a Franks hearing . . . .”). We thus reject\\n\\nMoody’s claim here as well.\\n\\n Finally, Moody argues that there were three “material omissions” from Shelkey’s\\n\\naffidavit: (1) “the confidential informant had not been to the address and had never\\n\\npurchased narcotics at the address,” (2) “Shelkey knew from the confidential informant\\n\\n\\n 4\\n The record might be read to suggest that the purchase on March 24 was the only\\ncontrolled purchase from Moody. Even so, the probable cause determination does not\\nturn on whether the other purchases of drugs by informants from Moody were controlled.\\nSee generally Appellee’s Brief at 46 (noting that the affidavit showed that the “defendant\\nmade similar sales of cocaine and heroin to other informants at the Lindsay Avenue\\nresidence within the preceding six months”).\\n\\n\\n 12\\n\\fthat Mr. Moody was not present at a drug transaction on the same day as the execution of\\n\\nthe affidavit,” and (3) “the lack of reliability of the confidential informant.” Appellant’s\\n\\nBrief at 6–7. A defendant requesting a Franks hearing based on claims of omissions\\n\\nfaces an even higher evidentiary burden than when he bases his claims on false\\n\\nstatements. Tate, 524 F.3d at 454–55.\\n\\n Moody’s claims of material omissions, largely a repackaging of his claims of false\\n\\nstatements that we have already rejected, do not satisfy this standard. As to the first\\n\\nalleged omission, it was irrelevant whether the testifying informant had been inside\\n\\nMoody’s home or bought narcotics there since both the affidavit and trial testimony point\\n\\nto the participation of other informants (one of whom was in his house during the raid).\\n\\nAs to the second, we have already explained that Moody’s lack of physical presence at\\n\\nthe exchange on March 24 was unnecessary to the probable cause determination. And as\\n\\nfor the last alleged omission, Moody has provided no basis for his claim that Shelkey’s\\n\\naffidavit omitted anything about the testifying informant’s reliability.\\n\\n * * *\\n\\n A defendant must meet a high bar before he may challenge the veracity of a\\n\\nfacially valid search warrant affidavit. Each of Moody’s arguments fails to clear that bar.\\n\\nWe therefore conclude that the district court properly rejected his motion for a Franks\\n\\nhearing. Accordingly, the judgment of the district court is\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 13\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4420957/\", \"author_raw\": \"RICHARDSON, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"MOTZ"},"judge2":{"kind":"string","value":"AGEE"},"judge3":{"kind":"string","value":"RICHARDSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4643704/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Benitez Auguarius MOODY, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-07-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-4213\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nBENITEZ AUGUARIUS MOODY,\n\n Defendant - Appellant.\n\n\n\nAppeal from the United States District Court for the Eastern District of Virginia at\nNorfolk. Henry Coke Morgan, Jr., Senior District Judge. (2:16-cr-00124-HCM-DEM-1)\n\n\nArgued: December 13, 2018 Decided: July 29, 2019\n\n\nBefore MOTZ, AGEE, and RICHARDSON, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Richardson wrote the opinion, in which Judge\nMotz and Judge Agee concurred.\n\n\nARGUED: James R. Theuer, JAMES R. THEUER, PLLC, Norfolk, Virginia, for\nAppellant. Daniel Taylor Young, OFFICE OF THE UNITED STATES ATTORNEY,\nAlexandria, Virginia, for Appellee. ON BRIEF: G. Zachary Terwilliger, United States\nAttorney, Alexandria, Virginia, Sherrie S. Capotosto, Assistant United States Attorney,\nOFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.\n\fRICHARDSON, Circuit Judge:\n\n After a jury convicted Benitez Auguarius Moody of federal drug and firearm\n\noffenses, he sought an evidentiary hearing to challenge a facially sufficient search\n\nwarrant affidavit. Such hearings are called “Franks hearings,” named for the Supreme\n\nCourt’s decision permitting them in Franks v. Delaware, 438 U.S. 154 (1978). In his\n\nrequest, Moody argued that a police officer’s trial testimony contradicted her search\n\nwarrant affidavit that had led to evidence used at his trial. The district court, however,\n\nrefused to hold a Franks hearing, finding that Moody had failed to make the necessary\n\nthreshold showing. We affirm.\n\n I.\n\n On March 24, 2016, as part of a larger investigation into narcotics trafficking,\n\npolice used a confidential informant to buy heroin from Moody, a suspected drug dealer.\n\nLater that evening, Portsmouth Police Detective Beth Shelkey applied for warrants to\n\nsearch Moody’s home (1212 Lindsay Avenue) and vehicle (a black BMW). Shelkey’s\n\nsupporting affidavit described the investigation, including the controlled heroin purchase\n\non March 24 as well as other drug transactions:\n\n During the past 6 months, this affiant and other members of the Portsmouth\n Police Department [Special Investigations Unit] have utilized Confidential\n Informants who have been up to and inside of 1212 Lindsay Ave\n Portsmouth, VA and purchased quantities of heroin and cocaine from\n MOODY. During the investigation controlled purchases have been\n conducted directly from 1212 Lindsay Ave Portsmouth VA and from a\n 2004 black in color BMW convertible displaying Virginia tags VLD-9617\n reregistered to MOODY.\n\n ....\n\n\n 2\n\f Within the past 24hrs this affiant and other members of the Portsmouth\n Police Department utilized a Confidential Informant who placed a\n telephone call to MOODY asking to purchase heroin from MOODY.\n MOODY arranged to meet the Confidential Informant in a pre arranged\n location. During this controlled purchase, MOODY and other co-\n conspirators (two unidentified black females) were observed leaving from\n 1212 Lindsay Ave Portsmouth, VA and surveilled traveling to the pre\n arranged location and selling the Informant heroin. The heroin was\n recovered by members of the Portsmouth Police Department Special\n investigations Unit, field tested and resulted positive for heroin.\n\nJ.A. 446. A state magistrate issued the warrants that same day. The resulting searches\n\nuncovered four firearms, drugs, drug paraphernalia, and thousands of dollars in cash.\n\nMoody was ultimately indicted by a federal grand jury on multiple counts of drug\n\npossession with intent to distribute, drug distribution, and firearm offenses.\n\n Moody chose to go to trial. The Government called one of the informants\n\nidentified in the affidavit, who testified about her practice of buying drugs from Moody\n\nand recounted her controlled heroin purchase on March 24. The informant explained that\n\nshe had arranged the drug purchase with Moody on the telephone and that two of his\n\nassociates handled the physical transfer of drugs and money at the meeting location. In\n\ndoing so, she acknowledged that Moody was not physically present for the drug delivery.\n\n This informant’s testimony was echoed by Detective Shelkey, who also testified\n\nthat Moody was not physically present for the exchange. Shelkey explained that the\n\ninformant told her that two unidentified women delivered the drugs. And she testified\n\nthat the surveillance team told her that these women came from Moody’s house. Shelkey\n\nalso confirmed the informant’s testimony that Moody “directed” the transaction remotely,\n\n\n\n\n 3\n\fa fact that Shelkey herself knew from listening to the informant’s phone call with Moody.\n\nJ.A. 246–47.\n\n After three days of testimony, the jury convicted Moody on three drug counts and\n\ntwo firearm counts but acquitted him on ten other drug charges. Only then did Moody\n\nseek a Franks hearing. In support of this request, he claimed that Shelkey’s affidavit\n\nfalsely stated that he was physically present for the drug exchange on March 24. The\n\ndistrict court, without deciding whether the post-verdict motion was timely, denied\n\nMoody’s request on the merits, concluding that he had failed to satisfy the preliminary\n\nshowing needed to justify a Franks hearing.\n\n After sentencing, Moody timely appealed the Franks ruling. We have jurisdiction\n\nunder 28 U.S.C. § 1291. And as always, we review the district court’s legal\n\ndeterminations de novo and its factual findings for clear error. United States v. White,\n\n850 F.3d 667, 672 (4th Cir. 2017).\n\n II.\n\n On appeal, Moody argues that a Franks hearing was required because Shelkey\n\nintentionally or recklessly made the false statement that Moody was physically present\n\nduring the March 24 controlled purchase. He also raises several other arguments about\n\nthe affidavit for the first time on appeal. After describing the legal framework, we\n\naddress each in turn.\n\n A.\n\n “An accused is generally not entitled to challenge the veracity of a facially valid\n\nsearch warrant affidavit.” United States v. Allen, 631 F.3d 164, 171 (4th Cir. 2011). A\n\n 4\n\fFranks hearing provides a criminal defendant with a narrow way to attack the validity of\n\nan affidavit. But to obtain the hearing, a defendant must make a “substantial preliminary\n\nshowing” that (1) law enforcement made “a false statement”; (2) the false statement was\n\nmade “knowingly and intentionally, or with reckless disregard for the truth”; and (3) the\n\nfalse statement was “necessary to the finding of probable cause.” White, 850 F.3d at 673\n\n(quoting Franks, 438 U.S. at 155–56). Given the “presumption of validity with respect to\n\nthe affidavit supporting the search warrant,” Franks, 438 U.S. at 171, a defendant must\n\nsatisfy this “heavy” burden before a hearing takes place. United States v. Tate, 524 F.3d\n\n449, 454 (4th Cir. 2008).\n\n The first required showing, of falsity, cannot be conclusory and must rest on\n\naffidavits or other evidence. See Franks, 438 U.S. at 171; United States v. Clenney, 631\n\nF.3d 658, 663 (4th Cir. 2011). As a result, the defendant cannot rely on a purely\n\nsubjective disagreement with how the affidavit characterizes the facts. Rather, there must\n\nbe evidence showing that the statements at issue are objectively false.\n\n The second showing, requiring intentional falsity or reckless disregard for the\n\ntruth, is just as demanding. An innocent or even negligent mistake by the officer will not\n\nsuffice. Franks, 438 U.S. at 170; United States v. Lull, 824 F.3d 109, 115–16 (4th Cir.\n\n2016). And here too, the defendant must provide facts—not mere conclusory\n\nallegations—indicating that the officer subjectively acted with intent to mislead, or with\n\nreckless disregard for whether the statements would mislead, the magistrate. See United\n\nStates v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990).\n\n\n\n 5\n\f Finally, the defendant must show materiality—that is, that the false statements\n\nwere “necessary to the finding of probable cause.” Franks, 438 U.S. at 156; United\n\nStates v. Wharton, 840 F.3d 163, 168 (4th Cir. 2016). A district court may not hold a\n\nFranks hearing where, after stripping away the allegedly false statements, the truthful\n\nportions of the warrant application would still support probable cause. This limitation\n\nreflects the ultimate purpose of Franks: “to prevent the admission of evidence obtained\n\npursuant to warrants that were issued only because the issuing magistrate was misled into\n\nbelieving that there existed probable cause.” United States v. Friedemann, 210 F.3d 227,\n\n229 (4th Cir. 2000).\n\n We note that the Federal Rules require certain motions, including a motion for a\n\nFranks hearing, to be made before trial “if the basis for the motion is then reasonably\n\navailable and the motion can be determined without a trial on the merits.” Fed. R. Crim.\n\nP. 12(b)(3)(C); see White, 850 F.3d at 673. On appeal, the Government argues that the\n\nbasis for making this preliminary showing was reasonably available to Moody before\n\ntrial. Like the district court, however, we decline to decide whether the motion was\n\ntimely and instead affirm on the merits.\n\n B.\n\n As in his motion below, Moody argues on appeal that Shelkey’s affidavit falsely\n\nsuggested that he was physically present for the controlled purchase on March 24.\n\nBecause the informant and Shelkey both testified at trial that Moody arranged the\n\ntransaction but was not physically present at the point of sale, Moody argues that the\n\naffidavit was false, and intentionally (or at least recklessly) so.\n\n 6\n\f According to Moody, the following sentence from Shelkey’s affidavit should be\n\nread to say that he was present for “selling” the heroin: “During this controlled purchase,\n\nMOODY and other co-conspirators (two unidentified black females) were observed\n\nleaving from 1212 Lindsay Ave Portsmouth, VA and surveilled traveling to the pre\n\narranged location and selling the Informant heroin.” J.A. 446. As the district court\n\nrecognized, there is ambiguity here. The language says that three people (Moody and his\n\ntwo conspirators) did three things: left the house, traveled to the buy location, and sold\n\nheroin.\n\n The affidavit lacks precision regarding whether all three people did all three\n\nthings, or whether the activities were somehow divided up—a lack of precision that is\n\nperhaps understandable, as conspirators commonly split tasks among themselves. As a\n\nresult, Shelkey could have intended at least three different meanings: (1) all three\n\nsubjects were seen “leaving” the house, “traveling” to the transaction site, and “selling”\n\nthe informant heroin, (2) all three subjects were seen “leaving” and “traveling,” but only\n\na subset (the two women) were seen “selling” the informant heroin; or (3) only the two\n\nwomen were seen “traveling” and “selling” the informant heroin, while Moody was only\n\nseen “leaving” with them. Only the first interpretation of the affidavit would clearly be\n\nfalse. 1 And, to be fair, the most natural reading of the affidavit does seem to say that\n\nMoody was at the scene of the transaction with the informant.\n\n\n 1\n Moody cites the testimony of Officer Roesch, a member of the SWAT team that\nexecuted the search, to suggest that Moody never even left the house. But Roesch’s\ntestimony says no such thing. He merely summarized the contents of an affidavit\n(Continued)\n 7\n\f Yet warrant affidavits are “normally drafted by nonlawyers in the midst and haste\n\nof a criminal investigation.” United States v. Ventresca, 380 U.S. 102, 108 (1965)\n\n(noting also that “[t]echnical requirements of elaborate specificity once exacted under\n\ncommon law pleadings have no proper place in this area”). They must be interpreted in a\n\ncommonsense manner, neither held to the standard of what judges or lawyers feel they\n\nwould have written if given the opportunity nor “judged as an entry in an essay contest.”\n\nUnited States v. Harris, 403 U.S. 573, 579 (1971) (quoting Spinelli v. United States, 393\n\nU.S. 410, 438 (1969) (Fortas, J., dissenting)). Mere imprecision does not, by itself, show\n\nfalsity.\n\n Even assuming that the affidavit was false, Moody has failed to show intentional\n\nfalsity or a reckless disregard for the truth by Shelkey. Given the lack of precision in the\n\nstatement at issue, we cannot reasonably infer that Shelkey acted with intent to mislead or\n\nwith reckless disregard of whether the statements would mislead. See United States v.\n\nChavez, 902 F.2d 259, 265 (4th Cir. 1990); cf. United States v. Lyon, 567 F.2d 777, 782\n\n(8th Cir. 1977) (explaining that “ambiguity does not in every case constitute recklessness\n\nor intent to deceive”). Rather, it appears Shelkey honestly believed that Moody had left\n\nthe house with the two women, who then delivered the drugs at his direction, and her\n\n\n\n\nsupporting the criminal complaint against Moody. See J.A. 423–28. There was no\nfoundation showing that Roesch was involved in the surveillance of Moody’s house at\nall. Thus, this evidence could not show, one way or the other, whether Moody was seen\nleaving with the two women. And for her part, Shelkey testified that the surveillance\nteam told her Moody had left the house. J.A. 292.\n\n\n 8\n\ffailure to specify that Moody was not present at the transaction reflected, at most, a lack\n\nof care.\n\n Moreover, Moody’s presence at the exchange was unnecessary to establishing\n\nprobable cause. See Wharton, 840 F.3d at 168. The affidavit explained that Moody had\n\norganized the sale of heroin over the phone and that the runners delivering the heroin had\n\nleft from his house. This established probable cause that instrumentalities or evidence of\n\ncrime would be found in Moody’s house, making Moody’s presence for the delivery\n\nsimply irrelevant. That shows any falsity was immaterial, while also suggesting that\n\nShelkey had no motive to lie.\n\n C.\n\n While Moody’s Franks motion below only raised his lack of physical presence, he\n\nmakes five additional arguments for the first time on appeal. These unpreserved claims\n\nof error are subject to the rigorous plain-error standard. United States v. Olano, 507 U.S.\n\n725, 732 (1993) (noting that reversal under this standard requires an error that is plain\n\nand that both affects “substantial rights” and “seriously” affects “the fairness, integrity or\n\npublic reputation of judicial proceedings” (citation omitted)). Moody’s additional claims\n\nfail this rigorous test, and in fact would fail even without subjecting them to more\n\nstringent review.\n\n\n\n\n 9\n\f First, Moody contends that Shelkey’s affidavit falsely alleged that he dealt\n\nnarcotics “directly” from his home at 1212 Lindsay Ave. 2 Shelkey stated in her affidavit:\n\n“During the investigation controlled purchases have been conducted directly from 1212\n\nLindsay Ave Portsmouth VA . . . .” J.A. 446. Moody maintains that this statement\n\nconflicts with Shelkey’s trial testimony that Moody “would not meet people at the house\n\nbut [] would go to different locations.” J.A. 250.\n\n Moody’s claim of falsity turns on the whether a purchase “conducted directly”\n\nfrom the house necessarily means that the transfer of the drugs to the informant happened\n\ninside the house. 3 Moody did conduct the March 24 controlled purchase from the house\n\nin part: he arranged the transaction from his house by phone and sent his runners from\n\nthere to deliver the drugs. But Moody might say that the adverb “directly” implies that\n\nthe transfer to the informant (as opposed to the transfer from Moody to his co-\n\nconspirators) occurred inside the house.\n\n Even if we strictly interpreted Shelkey’s statement and found this statement to be\n\nfalse, there is still no evidence of her mental state or of materiality. This nuanced, after-\n\nthe-fact reading does nothing to show Shelkey acted with intent to mislead or with\n\n 2\n The briefs suggest that Moody raised this contention before the district court, but\nwithout providing any citation. Our independent review of the record uncovered no\ninstance of this claim being raised below. But again, Moody’s prior failure to raise this\nissue makes no difference to the outcome of this case.\n 3\n It is unclear from the record whether other informants obtained drugs from\nMoody inside his house. It is clear that Moody did not keep all of his customers away\nfrom his home: another police informant was found inside Moody’s house during the\nexecution of the search warrant.\n\n\n 10\n\freckless disregard of whether the statement would mislead. And again, the precise\n\nlocation of the drug transfers was not important to a finding of probable cause necessary\n\nto search the house, because the simple fact is that Moody directed transfers and\n\ndispatched runners from there. This is enough to establish probable cause that evidence\n\nof the criminal conduct would be found in the house. See United States v. Grossman, 400\n\nF.3d 212, 217–18 (4th Cir. 2005) (holding that there is probable cause to search the part-\n\ntime residence of a defendant known to deal drugs, despite the lack of direct evidence\n\nthat drugs are kept there). Contrary to Moody’s conclusory contention that Shelkey’s\n\nstatement had the purpose “to mislead the magistrate into believing 1212 Lindsay Avenue\n\nwas used for drug distribution,” Appellant’s Brief at 11, it is immaterial whether the\n\ninformant received the heroin inside the house or at a nearby parking lot. We therefore\n\nreject Moody’s claim that Shelkey’s statement about conducting a controlled purchase\n\nfrom his house required a Franks hearing.\n\n Second, Moody argues that Shelkey’s affidavit deceptively described the state of\n\nthe investigation by misrepresenting the number of controlled purchases and confidential\n\ninformants as well as by falsely stating that an informant had been inside his home and\n\nobserved drug paraphernalia. His primary evidence for this is that Shelkey’s trial\n\ntestimony only detailed the controlled purchase on March 24, which took place away\n\nfrom his house. See id.\n\n\n\n\n 11\n\f This claim largely fails to show falsity. Shelkey testified about conducting other\n\npurchases from Moody, see J.A. 245, 4 and Officers Adams and Monteith testified about\n\nanother informant who had been involved in the investigation, including by helping\n\ncreate a diagram of the interior of the house, but then stopped cooperating fully. While\n\nMoody makes the conclusory claim that there were no confidential informants who\n\nobserved drugs, guns, or paraphernalia in the house, Appellant’s Brief at 14, this second\n\ninformant was in Moody’s house during the search that uncovered all three. Moody has\n\ntherefore failed to provide evidence beyond conclusory allegations to cast doubt on\n\nShelkey’s statements. See United States v. McKenzie-Gude, 671 F.3d 452, 462 (4th Cir.\n\n2011) (noting that a mere contradiction of a warrant application does not require a Franks\n\nhearing); United States v. Pace, 898 F.2d 1218, 1227 (7th Cir. 1990) (“[The defendant’s]\n\nself-serving statement in his affidavit that he never accepted bets on the number listed in\n\nthe warrant affidavit is not sufficient to require a Franks hearing . . . .”). We thus reject\n\nMoody’s claim here as well.\n\n Finally, Moody argues that there were three “material omissions” from Shelkey’s\n\naffidavit: (1) “the confidential informant had not been to the address and had never\n\npurchased narcotics at the address,” (2) “Shelkey knew from the confidential informant\n\n\n 4\n The record might be read to suggest that the purchase on March 24 was the only\ncontrolled purchase from Moody. Even so, the probable cause determination does not\nturn on whether the other purchases of drugs by informants from Moody were controlled.\nSee generally Appellee’s Brief at 46 (noting that the affidavit showed that the “defendant\nmade similar sales of cocaine and heroin to other informants at the Lindsay Avenue\nresidence within the preceding six months”).\n\n\n 12\n\fthat Mr. Moody was not present at a drug transaction on the same day as the execution of\n\nthe affidavit,” and (3) “the lack of reliability of the confidential informant.” Appellant’s\n\nBrief at 6–7. A defendant requesting a Franks hearing based on claims of omissions\n\nfaces an even higher evidentiary burden than when he bases his claims on false\n\nstatements. Tate, 524 F.3d at 454–55.\n\n Moody’s claims of material omissions, largely a repackaging of his claims of false\n\nstatements that we have already rejected, do not satisfy this standard. As to the first\n\nalleged omission, it was irrelevant whether the testifying informant had been inside\n\nMoody’s home or bought narcotics there since both the affidavit and trial testimony point\n\nto the participation of other informants (one of whom was in his house during the raid).\n\nAs to the second, we have already explained that Moody’s lack of physical presence at\n\nthe exchange on March 24 was unnecessary to the probable cause determination. And as\n\nfor the last alleged omission, Moody has provided no basis for his claim that Shelkey’s\n\naffidavit omitted anything about the testifying informant’s reliability.\n\n * * *\n\n A defendant must meet a high bar before he may challenge the veracity of a\n\nfacially valid search warrant affidavit. Each of Moody’s arguments fails to clear that bar.\n\nWe therefore conclude that the district court properly rejected his motion for a Franks\n\nhearing. Accordingly, the judgment of the district court is\n\n AFFIRMED.\n\n\n\n\n 13\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Benitez Auguarius MOODY, Defendant - Appellant.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-07-29\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-4213\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nBENITEZ AUGUARIUS MOODY,\\n\\n Defendant - Appellant.\\n\\n\\n\\nAppeal from the United States District Court for the Eastern District of Virginia at\\nNorfolk. Henry Coke Morgan, Jr., Senior District Judge. (2:16-cr-00124-HCM-DEM-1)\\n\\n\\nArgued: December 13, 2018 Decided: July 29, 2019\\n\\n\\nBefore MOTZ, AGEE, and RICHARDSON, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Richardson wrote the opinion, in which Judge\\nMotz and Judge Agee concurred.\\n\\n\\nARGUED: James R. Theuer, JAMES R. THEUER, PLLC, Norfolk, Virginia, for\\nAppellant. Daniel Taylor Young, OFFICE OF THE UNITED STATES ATTORNEY,\\nAlexandria, Virginia, for Appellee. ON BRIEF: G. Zachary Terwilliger, United States\\nAttorney, Alexandria, Virginia, Sherrie S. Capotosto, Assistant United States Attorney,\\nOFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.\\n\\fRICHARDSON, Circuit Judge:\\n\\n After a jury convicted Benitez Auguarius Moody of federal drug and firearm\\n\\noffenses, he sought an evidentiary hearing to challenge a facially sufficient search\\n\\nwarrant affidavit. Such hearings are called “Franks hearings,” named for the Supreme\\n\\nCourt’s decision permitting them in Franks v. Delaware, 438 U.S. 154 (1978). In his\\n\\nrequest, Moody argued that a police officer’s trial testimony contradicted her search\\n\\nwarrant affidavit that had led to evidence used at his trial. The district court, however,\\n\\nrefused to hold a Franks hearing, finding that Moody had failed to make the necessary\\n\\nthreshold showing. We affirm.\\n\\n I.\\n\\n On March 24, 2016, as part of a larger investigation into narcotics trafficking,\\n\\npolice used a confidential informant to buy heroin from Moody, a suspected drug dealer.\\n\\nLater that evening, Portsmouth Police Detective Beth Shelkey applied for warrants to\\n\\nsearch Moody’s home (1212 Lindsay Avenue) and vehicle (a black BMW). Shelkey’s\\n\\nsupporting affidavit described the investigation, including the controlled heroin purchase\\n\\non March 24 as well as other drug transactions:\\n\\n During the past 6 months, this affiant and other members of the Portsmouth\\n Police Department [Special Investigations Unit] have utilized Confidential\\n Informants who have been up to and inside of 1212 Lindsay Ave\\n Portsmouth, VA and purchased quantities of heroin and cocaine from\\n MOODY. During the investigation controlled purchases have been\\n conducted directly from 1212 Lindsay Ave Portsmouth VA and from a\\n 2004 black in color BMW convertible displaying Virginia tags VLD-9617\\n reregistered to MOODY.\\n\\n ....\\n\\n\\n 2\\n\\f Within the past 24hrs this affiant and other members of the Portsmouth\\n Police Department utilized a Confidential Informant who placed a\\n telephone call to MOODY asking to purchase heroin from MOODY.\\n MOODY arranged to meet the Confidential Informant in a pre arranged\\n location. During this controlled purchase, MOODY and other co-\\n conspirators (two unidentified black females) were observed leaving from\\n 1212 Lindsay Ave Portsmouth, VA and surveilled traveling to the pre\\n arranged location and selling the Informant heroin. The heroin was\\n recovered by members of the Portsmouth Police Department Special\\n investigations Unit, field tested and resulted positive for heroin.\\n\\nJ.A. 446. A state magistrate issued the warrants that same day. The resulting searches\\n\\nuncovered four firearms, drugs, drug paraphernalia, and thousands of dollars in cash.\\n\\nMoody was ultimately indicted by a federal grand jury on multiple counts of drug\\n\\npossession with intent to distribute, drug distribution, and firearm offenses.\\n\\n Moody chose to go to trial. The Government called one of the informants\\n\\nidentified in the affidavit, who testified about her practice of buying drugs from Moody\\n\\nand recounted her controlled heroin purchase on March 24. The informant explained that\\n\\nshe had arranged the drug purchase with Moody on the telephone and that two of his\\n\\nassociates handled the physical transfer of drugs and money at the meeting location. In\\n\\ndoing so, she acknowledged that Moody was not physically present for the drug delivery.\\n\\n This informant’s testimony was echoed by Detective Shelkey, who also testified\\n\\nthat Moody was not physically present for the exchange. Shelkey explained that the\\n\\ninformant told her that two unidentified women delivered the drugs. And she testified\\n\\nthat the surveillance team told her that these women came from Moody’s house. Shelkey\\n\\nalso confirmed the informant’s testimony that Moody “directed” the transaction remotely,\\n\\n\\n\\n\\n 3\\n\\fa fact that Shelkey herself knew from listening to the informant’s phone call with Moody.\\n\\nJ.A. 246–47.\\n\\n After three days of testimony, the jury convicted Moody on three drug counts and\\n\\ntwo firearm counts but acquitted him on ten other drug charges. Only then did Moody\\n\\nseek a Franks hearing. In support of this request, he claimed that Shelkey’s affidavit\\n\\nfalsely stated that he was physically present for the drug exchange on March 24. The\\n\\ndistrict court, without deciding whether the post-verdict motion was timely, denied\\n\\nMoody’s request on the merits, concluding that he had failed to satisfy the preliminary\\n\\nshowing needed to justify a Franks hearing.\\n\\n After sentencing, Moody timely appealed the Franks ruling. We have jurisdiction\\n\\nunder 28 U.S.C. § 1291. And as always, we review the district court’s legal\\n\\ndeterminations de novo and its factual findings for clear error. United States v. White,\\n\\n850 F.3d 667, 672 (4th Cir. 2017).\\n\\n II.\\n\\n On appeal, Moody argues that a Franks hearing was required because Shelkey\\n\\nintentionally or recklessly made the false statement that Moody was physically present\\n\\nduring the March 24 controlled purchase. He also raises several other arguments about\\n\\nthe affidavit for the first time on appeal. After describing the legal framework, we\\n\\naddress each in turn.\\n\\n A.\\n\\n “An accused is generally not entitled to challenge the veracity of a facially valid\\n\\nsearch warrant affidavit.” United States v. Allen, 631 F.3d 164, 171 (4th Cir. 2011). A\\n\\n 4\\n\\fFranks hearing provides a criminal defendant with a narrow way to attack the validity of\\n\\nan affidavit. But to obtain the hearing, a defendant must make a “substantial preliminary\\n\\nshowing” that (1) law enforcement made “a false statement”; (2) the false statement was\\n\\nmade “knowingly and intentionally, or with reckless disregard for the truth”; and (3) the\\n\\nfalse statement was “necessary to the finding of probable cause.” White, 850 F.3d at 673\\n\\n(quoting Franks, 438 U.S. at 155–56). Given the “presumption of validity with respect to\\n\\nthe affidavit supporting the search warrant,” Franks, 438 U.S. at 171, a defendant must\\n\\nsatisfy this “heavy” burden before a hearing takes place. United States v. Tate, 524 F.3d\\n\\n449, 454 (4th Cir. 2008).\\n\\n The first required showing, of falsity, cannot be conclusory and must rest on\\n\\naffidavits or other evidence. See Franks, 438 U.S. at 171; United States v. Clenney, 631\\n\\nF.3d 658, 663 (4th Cir. 2011). As a result, the defendant cannot rely on a purely\\n\\nsubjective disagreement with how the affidavit characterizes the facts. Rather, there must\\n\\nbe evidence showing that the statements at issue are objectively false.\\n\\n The second showing, requiring intentional falsity or reckless disregard for the\\n\\ntruth, is just as demanding. An innocent or even negligent mistake by the officer will not\\n\\nsuffice. Franks, 438 U.S. at 170; United States v. Lull, 824 F.3d 109, 115–16 (4th Cir.\\n\\n2016). And here too, the defendant must provide facts—not mere conclusory\\n\\nallegations—indicating that the officer subjectively acted with intent to mislead, or with\\n\\nreckless disregard for whether the statements would mislead, the magistrate. See United\\n\\nStates v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990).\\n\\n\\n\\n 5\\n\\f Finally, the defendant must show materiality—that is, that the false statements\\n\\nwere “necessary to the finding of probable cause.” Franks, 438 U.S. at 156; United\\n\\nStates v. Wharton, 840 F.3d 163, 168 (4th Cir. 2016). A district court may not hold a\\n\\nFranks hearing where, after stripping away the allegedly false statements, the truthful\\n\\nportions of the warrant application would still support probable cause. This limitation\\n\\nreflects the ultimate purpose of Franks: “to prevent the admission of evidence obtained\\n\\npursuant to warrants that were issued only because the issuing magistrate was misled into\\n\\nbelieving that there existed probable cause.” United States v. Friedemann, 210 F.3d 227,\\n\\n229 (4th Cir. 2000).\\n\\n We note that the Federal Rules require certain motions, including a motion for a\\n\\nFranks hearing, to be made before trial “if the basis for the motion is then reasonably\\n\\navailable and the motion can be determined without a trial on the merits.” Fed. R. Crim.\\n\\nP. 12(b)(3)(C); see White, 850 F.3d at 673. On appeal, the Government argues that the\\n\\nbasis for making this preliminary showing was reasonably available to Moody before\\n\\ntrial. Like the district court, however, we decline to decide whether the motion was\\n\\ntimely and instead affirm on the merits.\\n\\n B.\\n\\n As in his motion below, Moody argues on appeal that Shelkey’s affidavit falsely\\n\\nsuggested that he was physically present for the controlled purchase on March 24.\\n\\nBecause the informant and Shelkey both testified at trial that Moody arranged the\\n\\ntransaction but was not physically present at the point of sale, Moody argues that the\\n\\naffidavit was false, and intentionally (or at least recklessly) so.\\n\\n 6\\n\\f According to Moody, the following sentence from Shelkey’s affidavit should be\\n\\nread to say that he was present for “selling” the heroin: “During this controlled purchase,\\n\\nMOODY and other co-conspirators (two unidentified black females) were observed\\n\\nleaving from 1212 Lindsay Ave Portsmouth, VA and surveilled traveling to the pre\\n\\narranged location and selling the Informant heroin.” J.A. 446. As the district court\\n\\nrecognized, there is ambiguity here. The language says that three people (Moody and his\\n\\ntwo conspirators) did three things: left the house, traveled to the buy location, and sold\\n\\nheroin.\\n\\n The affidavit lacks precision regarding whether all three people did all three\\n\\nthings, or whether the activities were somehow divided up—a lack of precision that is\\n\\nperhaps understandable, as conspirators commonly split tasks among themselves. As a\\n\\nresult, Shelkey could have intended at least three different meanings: (1) all three\\n\\nsubjects were seen “leaving” the house, “traveling” to the transaction site, and “selling”\\n\\nthe informant heroin, (2) all three subjects were seen “leaving” and “traveling,” but only\\n\\na subset (the two women) were seen “selling” the informant heroin; or (3) only the two\\n\\nwomen were seen “traveling” and “selling” the informant heroin, while Moody was only\\n\\nseen “leaving” with them. Only the first interpretation of the affidavit would clearly be\\n\\nfalse. 1 And, to be fair, the most natural reading of the affidavit does seem to say that\\n\\nMoody was at the scene of the transaction with the informant.\\n\\n\\n 1\\n Moody cites the testimony of Officer Roesch, a member of the SWAT team that\\nexecuted the search, to suggest that Moody never even left the house. But Roesch’s\\ntestimony says no such thing. He merely summarized the contents of an affidavit\\n(Continued)\\n 7\\n\\f Yet warrant affidavits are “normally drafted by nonlawyers in the midst and haste\\n\\nof a criminal investigation.” United States v. Ventresca, 380 U.S. 102, 108 (1965)\\n\\n(noting also that “[t]echnical requirements of elaborate specificity once exacted under\\n\\ncommon law pleadings have no proper place in this area”). They must be interpreted in a\\n\\ncommonsense manner, neither held to the standard of what judges or lawyers feel they\\n\\nwould have written if given the opportunity nor “judged as an entry in an essay contest.”\\n\\nUnited States v. Harris, 403 U.S. 573, 579 (1971) (quoting Spinelli v. United States, 393\\n\\nU.S. 410, 438 (1969) (Fortas, J., dissenting)). Mere imprecision does not, by itself, show\\n\\nfalsity.\\n\\n Even assuming that the affidavit was false, Moody has failed to show intentional\\n\\nfalsity or a reckless disregard for the truth by Shelkey. Given the lack of precision in the\\n\\nstatement at issue, we cannot reasonably infer that Shelkey acted with intent to mislead or\\n\\nwith reckless disregard of whether the statements would mislead. See United States v.\\n\\nChavez, 902 F.2d 259, 265 (4th Cir. 1990); cf. United States v. Lyon, 567 F.2d 777, 782\\n\\n(8th Cir. 1977) (explaining that “ambiguity does not in every case constitute recklessness\\n\\nor intent to deceive”). Rather, it appears Shelkey honestly believed that Moody had left\\n\\nthe house with the two women, who then delivered the drugs at his direction, and her\\n\\n\\n\\n\\nsupporting the criminal complaint against Moody. See J.A. 423–28. There was no\\nfoundation showing that Roesch was involved in the surveillance of Moody’s house at\\nall. Thus, this evidence could not show, one way or the other, whether Moody was seen\\nleaving with the two women. And for her part, Shelkey testified that the surveillance\\nteam told her Moody had left the house. J.A. 292.\\n\\n\\n 8\\n\\ffailure to specify that Moody was not present at the transaction reflected, at most, a lack\\n\\nof care.\\n\\n Moreover, Moody’s presence at the exchange was unnecessary to establishing\\n\\nprobable cause. See Wharton, 840 F.3d at 168. The affidavit explained that Moody had\\n\\norganized the sale of heroin over the phone and that the runners delivering the heroin had\\n\\nleft from his house. This established probable cause that instrumentalities or evidence of\\n\\ncrime would be found in Moody’s house, making Moody’s presence for the delivery\\n\\nsimply irrelevant. That shows any falsity was immaterial, while also suggesting that\\n\\nShelkey had no motive to lie.\\n\\n C.\\n\\n While Moody’s Franks motion below only raised his lack of physical presence, he\\n\\nmakes five additional arguments for the first time on appeal. These unpreserved claims\\n\\nof error are subject to the rigorous plain-error standard. United States v. Olano, 507 U.S.\\n\\n725, 732 (1993) (noting that reversal under this standard requires an error that is plain\\n\\nand that both affects “substantial rights” and “seriously” affects “the fairness, integrity or\\n\\npublic reputation of judicial proceedings” (citation omitted)). Moody’s additional claims\\n\\nfail this rigorous test, and in fact would fail even without subjecting them to more\\n\\nstringent review.\\n\\n\\n\\n\\n 9\\n\\f First, Moody contends that Shelkey’s affidavit falsely alleged that he dealt\\n\\nnarcotics “directly” from his home at 1212 Lindsay Ave. 2 Shelkey stated in her affidavit:\\n\\n“During the investigation controlled purchases have been conducted directly from 1212\\n\\nLindsay Ave Portsmouth VA . . . .” J.A. 446. Moody maintains that this statement\\n\\nconflicts with Shelkey’s trial testimony that Moody “would not meet people at the house\\n\\nbut [] would go to different locations.” J.A. 250.\\n\\n Moody’s claim of falsity turns on the whether a purchase “conducted directly”\\n\\nfrom the house necessarily means that the transfer of the drugs to the informant happened\\n\\ninside the house. 3 Moody did conduct the March 24 controlled purchase from the house\\n\\nin part: he arranged the transaction from his house by phone and sent his runners from\\n\\nthere to deliver the drugs. But Moody might say that the adverb “directly” implies that\\n\\nthe transfer to the informant (as opposed to the transfer from Moody to his co-\\n\\nconspirators) occurred inside the house.\\n\\n Even if we strictly interpreted Shelkey’s statement and found this statement to be\\n\\nfalse, there is still no evidence of her mental state or of materiality. This nuanced, after-\\n\\nthe-fact reading does nothing to show Shelkey acted with intent to mislead or with\\n\\n 2\\n The briefs suggest that Moody raised this contention before the district court, but\\nwithout providing any citation. Our independent review of the record uncovered no\\ninstance of this claim being raised below. But again, Moody’s prior failure to raise this\\nissue makes no difference to the outcome of this case.\\n 3\\n It is unclear from the record whether other informants obtained drugs from\\nMoody inside his house. It is clear that Moody did not keep all of his customers away\\nfrom his home: another police informant was found inside Moody’s house during the\\nexecution of the search warrant.\\n\\n\\n 10\\n\\freckless disregard of whether the statement would mislead. And again, the precise\\n\\nlocation of the drug transfers was not important to a finding of probable cause necessary\\n\\nto search the house, because the simple fact is that Moody directed transfers and\\n\\ndispatched runners from there. This is enough to establish probable cause that evidence\\n\\nof the criminal conduct would be found in the house. See United States v. Grossman, 400\\n\\nF.3d 212, 217–18 (4th Cir. 2005) (holding that there is probable cause to search the part-\\n\\ntime residence of a defendant known to deal drugs, despite the lack of direct evidence\\n\\nthat drugs are kept there). Contrary to Moody’s conclusory contention that Shelkey’s\\n\\nstatement had the purpose “to mislead the magistrate into believing 1212 Lindsay Avenue\\n\\nwas used for drug distribution,” Appellant’s Brief at 11, it is immaterial whether the\\n\\ninformant received the heroin inside the house or at a nearby parking lot. We therefore\\n\\nreject Moody’s claim that Shelkey’s statement about conducting a controlled purchase\\n\\nfrom his house required a Franks hearing.\\n\\n Second, Moody argues that Shelkey’s affidavit deceptively described the state of\\n\\nthe investigation by misrepresenting the number of controlled purchases and confidential\\n\\ninformants as well as by falsely stating that an informant had been inside his home and\\n\\nobserved drug paraphernalia. His primary evidence for this is that Shelkey’s trial\\n\\ntestimony only detailed the controlled purchase on March 24, which took place away\\n\\nfrom his house. See id.\\n\\n\\n\\n\\n 11\\n\\f This claim largely fails to show falsity. Shelkey testified about conducting other\\n\\npurchases from Moody, see J.A. 245, 4 and Officers Adams and Monteith testified about\\n\\nanother informant who had been involved in the investigation, including by helping\\n\\ncreate a diagram of the interior of the house, but then stopped cooperating fully. While\\n\\nMoody makes the conclusory claim that there were no confidential informants who\\n\\nobserved drugs, guns, or paraphernalia in the house, Appellant’s Brief at 14, this second\\n\\ninformant was in Moody’s house during the search that uncovered all three. Moody has\\n\\ntherefore failed to provide evidence beyond conclusory allegations to cast doubt on\\n\\nShelkey’s statements. See United States v. McKenzie-Gude, 671 F.3d 452, 462 (4th Cir.\\n\\n2011) (noting that a mere contradiction of a warrant application does not require a Franks\\n\\nhearing); United States v. Pace, 898 F.2d 1218, 1227 (7th Cir. 1990) (“[The defendant’s]\\n\\nself-serving statement in his affidavit that he never accepted bets on the number listed in\\n\\nthe warrant affidavit is not sufficient to require a Franks hearing . . . .”). We thus reject\\n\\nMoody’s claim here as well.\\n\\n Finally, Moody argues that there were three “material omissions” from Shelkey’s\\n\\naffidavit: (1) “the confidential informant had not been to the address and had never\\n\\npurchased narcotics at the address,” (2) “Shelkey knew from the confidential informant\\n\\n\\n 4\\n The record might be read to suggest that the purchase on March 24 was the only\\ncontrolled purchase from Moody. Even so, the probable cause determination does not\\nturn on whether the other purchases of drugs by informants from Moody were controlled.\\nSee generally Appellee’s Brief at 46 (noting that the affidavit showed that the “defendant\\nmade similar sales of cocaine and heroin to other informants at the Lindsay Avenue\\nresidence within the preceding six months”).\\n\\n\\n 12\\n\\fthat Mr. Moody was not present at a drug transaction on the same day as the execution of\\n\\nthe affidavit,” and (3) “the lack of reliability of the confidential informant.” Appellant’s\\n\\nBrief at 6–7. A defendant requesting a Franks hearing based on claims of omissions\\n\\nfaces an even higher evidentiary burden than when he bases his claims on false\\n\\nstatements. Tate, 524 F.3d at 454–55.\\n\\n Moody’s claims of material omissions, largely a repackaging of his claims of false\\n\\nstatements that we have already rejected, do not satisfy this standard. As to the first\\n\\nalleged omission, it was irrelevant whether the testifying informant had been inside\\n\\nMoody’s home or bought narcotics there since both the affidavit and trial testimony point\\n\\nto the participation of other informants (one of whom was in his house during the raid).\\n\\nAs to the second, we have already explained that Moody’s lack of physical presence at\\n\\nthe exchange on March 24 was unnecessary to the probable cause determination. And as\\n\\nfor the last alleged omission, Moody has provided no basis for his claim that Shelkey’s\\n\\naffidavit omitted anything about the testifying informant’s reliability.\\n\\n * * *\\n\\n A defendant must meet a high bar before he may challenge the veracity of a\\n\\nfacially valid search warrant affidavit. Each of Moody’s arguments fails to clear that bar.\\n\\nWe therefore conclude that the district court properly rejected his motion for a Franks\\n\\nhearing. Accordingly, the judgment of the district court is\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 13\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2965,"cells":{"id":{"kind":"number","value":4644005,"string":"4,644,005"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee, v. Randall CORNETTE, Defendant - Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Randall Cornette"},"decision_date":{"kind":"string","value":"2019-07-30"},"docket_number":{"kind":"string","value":"18-6041"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Agee, Floyd, Duncan\", \"parties\": \"\", \"opinions\": [{\"author\": \"FLOYD, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-6041\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nRANDALL CORNETTE,\\n\\n Defendant - Appellant.\\n\\n\\n\\nAppeal from the United States District Court for the Western District of North Carolina,\\nat Asheville. Martin K. Reidinger, District Judge. (1:08-cr-00056-MR-1; 1:16-cv-\\n00153-MR)\\n\\n\\nArgued: March 19, 2019 Decided: July 30, 2019\\n\\n\\nBefore AGEE and FLOYD, Circuit Judges, and DUNCAN, Senior Circuit Judge.\\n\\n\\nReversed and remanded by published opinion. Judge Floyd wrote the opinion in which\\nJudge Agee and Senior Judge Duncan joined.\\n\\n\\nARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH\\nCAROLINA, INC., Asheville, North Carolina, for Appellant. Anthony Joseph Enright,\\nOFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for\\nAppellee. ON BRIEF: Caryn Devins, Research & Writing Specialist, FEDERAL\\nDEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina,\\nfor Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED\\nSTATES ATTORNEY, Charlotte, North Carolina, for Appellee.\\n\\fFLOYD, Circuit Judge:\\n\\n Appellant Randall Cornette was sentenced as an armed career criminal because of\\n\\ncertain predicate state convictions that the district court considered to be “violent\\n\\nfelonies” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Cornette\\n\\nnow contends that in light of the Supreme Court’s decision in Johnson v. United States,\\n\\n135 S. Ct. 2551 (2015), he no longer has the requisite number of predicate offenses for\\n\\nthe ACCA’s sentencing enhancement. In the unique context of the facts presented, we\\n\\nagree.\\n\\n\\n\\n I.\\n\\n Cornette pleaded guilty to being a felon in possession of a firearm in violation of\\n\\n18 U.S.C. § 922(g)(1) pursuant to a written plea agreement with an appeal waiver. Under\\n\\n18 U.S.C. § 924(a)(2), this conviction carries a maximum prison sentence of ten years.\\n\\nHowever, the presentence report (PSR) designated the following predicate “violent\\n\\nfelony” convictions under the ACCA: (1) a 1976 Georgia felony burglary; (2) a 1979\\n\\nNorth Carolina breaking-and-entering; (3) a 1986 North Carolina felony possession with\\n\\nintent to manufacture/sell/deliver schedule II controlled substance and felony sell/deliver\\n\\nschedule II controlled substance; and (4) a 1989 North Carolina felony breaking and\\n\\nentering. Based on these convictions, the district court determined that Cornette was an\\n\\narmed career criminal under the ACCA and sentenced him to 220 months of\\n\\nimprisonment.\\n\\n\\n\\n\\n 2\\n\\f Cornette did not challenge the ACCA enhancement at his initial sentencing,\\n\\nalthough he appealed the district court’s judgment. We vacated the sentence because the\\n\\ndistrict court procedurally erred in failing to adequately explain Cornette’s sentence.\\n\\nUnited States v. Cornette, 396 F. App’x 8, 8 (4th Cir. 2010). On remand, Cornette\\n\\nchallenged his ACCA enhancement but withdrew the challenge prior to resentencing. On\\n\\nresentencing, the district court once again sentenced Cornette to 220 months\\n\\nimprisonment. A review of that resentencing reveals that the district court did not specify\\n\\nwhether it relied on the ACCA’s enumerated clause, which includes “burglary” as a\\n\\nqualifying violent felony, or the residual clause in finding that Cornette qualified for the\\n\\nACCA enhancement.\\n\\n In 2012, Cornette filed his first motion under 28 U.S.C. § 2255 alleging ineffective\\n\\nassistance of counsel. The district court denied Cornette’s motion and denied a certificate\\n\\nof appealability. After the Supreme Court’s decision in Johnson ruling the residual\\n\\nclause of the ACCA void for vagueness, Cornette filed a second § 2255 motion arguing\\n\\nthat he was no longer an armed career criminal. The district court dismissed this as an\\n\\nunauthorized second and successive § 2255. We granted a motion authorizing Cornette\\n\\nto file a second and successive § 2255. Cornette then filed a § 2255 motion, once again\\n\\narguing that he no longer qualified as an armed career criminal under Johnson because\\n\\n(1) his 1976 Georgia burglary conviction no longer qualified as a predicate offense for\\n\\nACCA purposes under the remaining force or enumerated clauses of ACCA and (2) his\\n\\nNorth Carolina controlled substance convictions did not qualify as ACCA predicates in\\n\\n\\n\\n\\n 3\\n\\flight of our decisions in United States v. Newbold, 791 F.3d 455 (4th Cir. 2015), and\\n\\nUnited States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc).\\n\\n The district court denied Cornette’s motion, this time on the merits, finding that\\n\\nCornette’s sentence was proper because his Georgia burglary convictions met the\\n\\nelements of generic burglary under § 924(e)(2)(B)(ii). This appeal followed.\\n\\n\\n\\n II.\\n\\n Whether an offense constitutes a “violent felony” under the ACCA is a question of\\n\\nlaw that we review de novo. See United States v. White, 571 F.3d 365, 367 (4th Cir.\\n\\n2009).\\n\\n\\n\\n III.\\n\\n We begin with an overview of the post-Johnson ACCA landscape. Second, we\\n\\naddress why the appeal waiver in Cornette’s plea agreement does not bar us from\\n\\nreaching the merits of his ACCA claims. Third, we determine that Cornette’s 1976\\n\\nGeorgia burglary conviction does not qualify as a violent crime under the ACCA.\\n\\nFinally, we hold that Cornette’s North Carolina controlled substance convictions do not\\n\\nqualify as serious drug offenses under the ACCA. Accordingly, we grant Cornette’s\\n\\n§ 2255 motion and remand for resentencing.\\n\\n A.\\n\\n Under the ACCA, a person who is convicted of being a felon in possession of a\\n\\nfirearm and who “has three previous convictions . . . for a violent felony or a serious drug\\n\\n\\n 4\\n\\foffense . . . committed on occasions different from one another . . . shall be . . .\\n\\nimprisoned not less than fifteen years[.]” 18 U.S.C. § 924(e)(1). The statute defines\\n\\n“violent felony” as:\\n\\n any crime punishable by imprisonment for a term exceeding one year . . .\\n that . . . (i) has as an element the use, attempted use, or threatened use of\\n physical force against the person of another; or (ii) is burglary, arson, or\\n extortion, involves use of explosives, or otherwise involves conduct that\\n presents a serious potential risk of physical injury to another[.]\\n\\n18 U.S.C. § 924(e)(2)(B). The first part of subsection (ii) is referred to as the\\n\\n“enumerated offenses” clause, while the phrase “otherwise involves conduct that presents\\n\\na serious potential risk of physical injury to another” is known as the “residual clause.”\\n\\nJohnson, 135 S. Ct. at 2555–57. In Johnson, the Supreme Court held that the residual\\n\\nclause was unconstitutionally void for vagueness but that its “decision [did] not call into\\n\\nquestion application of the [ACCA] to the four enumerated offenses, or the remainder of\\n\\nthe Act’s definition of a violent felony.” Id. at 2563.\\n\\n In Welch v. United States, the Supreme Court held that Johnson was a substantive\\n\\nrule that applied retroactively on collateral review, as it “narrow[ed] the scope of [the\\n\\nACCA] by interpreting its terms,” and was also a “constitutional determination[] that\\n\\nplace[d] particular conduct or persons covered by the statute beyond the State’s power to\\n\\npunish.” 136 S.Ct. 1257, 1265 (2016) (internal citation and quotation marks omitted).\\n\\nWelch made clear that the residual clause of the ACCA “can no longer mandate or\\n\\nauthorize any sentence,” and that the substantive rule announced in Johnson “change[d]\\n\\nthe scope of the underlying criminal proscription” because there was a “significant risk\\n\\n\\n\\n\\n 5\\n\\fthat a defendant stands convicted of an act that the law does not make criminal.” Id. at\\n\\n1265–66 (internal citation and quotation marks omitted).\\n\\n The statutory landscape as it stands today is that a defendant’s prior conviction can\\n\\nstill qualify as a “violent felony” only under the force clause or the enumerated clause of\\n\\nthe ACCA. The record of Cornette’s sentencing is unclear as to which clause of the\\n\\nACCA—or even what predicate convictions—the district court relied upon in sentencing\\n\\nhim. That is, in announcing its original sentence, the sentencing court stated only that it\\n\\noverruled all of Cornette’s objections to the PSR and determined that the final offense\\n\\nlevel of 32 was “correct as stated in the Presentence Investigation Report and adopted by\\n\\nthe Court.” J.A. 28. Upon remand and resentencing, the sentencing court stated only that\\n\\nthe total offense level of 32 and the criminal history category of VI made the applicable\\n\\nguideline range 210 to 262 months. J.A. 54. There was no discussion of any of the\\n\\nACCA’s clauses in either sentencing.\\n\\n The government contends that the record does not establish that Cornette was\\n\\nsentenced under the residual clause such that Cornette cannot present any Johnson II-\\n\\nbased challenge to his sentence. But under United States v. Winston, 850 F.3d 677 (4th\\n\\nCir. 2017), we are to read this equivocation in the record in Cornette’s favor. We\\n\\nrecently reaffirmed this reasoning, stating that “a Johnson II-based § 2255 motion relies\\n\\non a new rule of constitutional law . . . when the petitioner’s ACCA-enhanced sentence\\n\\n‘may have been predicated on application of the now-void residual clause.’” United\\n\\nStates v. Hodge, 902 F.3d 420, 426 (4th Cir. 2018) (citing Winston, 850 F.3d at 682). In\\n\\nother words, we “will not penalize a movant for a court’s discretionary choice not to\\n\\n\\n 6\\n\\fspecify under which clause of Section 924(e)(2)(B) an offense qualified as a violent\\n\\nfelony.” Winston, 850 F.3d at 682. Since it is not clear one way or the other, we assume\\n\\nfor purposes of this appeal that Cornette was sentenced under the ACCA’s residual\\n\\nclause.\\n\\n\\n\\n B.\\n\\n We now turn to whether Cornette’s appeal waiver bars us from considering the\\n\\nmerits of his ACCA petition for relief. We hold that it does not under the circumstances\\n\\nof this case.\\n\\n Cornette’s plea agreement waived his right to appeal from errors in the sentence\\n\\nimposed against him, except for claims of ineffective assistance of counsel and\\n\\nprosecutorial misconduct. Cornette concedes that the claim he presses here is neither an\\n\\nineffective assistance of counsel nor a prosecutorial misconduct claim. But Cornette\\n\\ncontends that his otherwise valid appeal waiver does not bar him from now arguing that\\n\\nby imposing a sentence under the now unconstitutional residual clause of the ACCA, the\\n\\ndistrict court exceeded its statutory authority to sentence him. Cornette’s argument finds\\n\\nsupport in the precedent of this Court.\\n\\n In United States v. Marin, we held that “a defendant who waives his right to an\\n\\nappeal does not subject himself to being sentenced entirely at the whim of the district\\n\\ncourt.” 961 F.2d 493, 496 (4th Cir. 1993). An appeal waiver does not preclude a\\n\\ndefendant from challenging a sentence “based on a constitutionally impermissible factor”\\n\\nor “a sentence imposed in excess of the maximum penalty provided by statute.” Id.; see\\n\\n\\n 7\\n\\falso Garza v. Idaho, 139 S.Ct. 738, 745 n.6 (2019) (recognizing that lower courts have\\n\\napplied exceptions to appeal waivers for claims “that a sentence . . . exceeds the statutory\\n\\nmaximum authorized”); United States v. Cohen, 888 F.3d 667, 683 (4th Cir. 2018)\\n\\n(reiterating that “an appeal waiver does not preclude . . . challenges that a sentence\\n\\nexceeds a statutory maximum or is based upon a constitutionally infirm factor”); United\\n\\nStates v. General, 278 F.3d 389, 399 (4th Cir. 2002) (acknowledging that “arguments\\n\\ncontending that sentence was imposed upon constitutionally impermissible factors or that\\n\\nsentence exceeds the statutory maximum are not barred by contractual waivers.”).\\n\\n We subsequently applied Marin to the question of whether an appeal waiver\\n\\nbarred a defendant from challenging a district court’s restitution order that exceeded the\\n\\nstatutorily authorized punishment for a defendant’s underlying conviction. United States\\n\\nv. Broughton-Jones, 71 F.3d 1143, 1147 (4th Cir. 1995). It does not. Id. (“Because a\\n\\nrestitution order imposed when it is not authorized by [statute] is no less ‘illegal’ than a\\n\\nsentence of imprisonment that exceeds the statutory maximum, appeals challenging the\\n\\nlegality of restitution orders are similarly outside the scope of a defendant’s otherwise\\n\\nvalid appeal waiver.”). Cornette’s challenge to his sentence is likewise predicated on the\\n\\nassertion that the district court did not have the statutory authority to impose the sentence\\n\\nit did (here, under the residual clause, rather than the restitution statute), and so Marin\\n\\nand Broughton-Jones support his contention.\\n\\n Cornette’s argument can be simplified to the following: (1) Johnson struck the\\n\\nresidual clause of the ACCA as unconstitutional; (2) Welch made Johnson retroactive; (3)\\n\\nhe was sentenced pursuant to ACCA’s residual clause; and (4) because Welch made\\n\\n\\n 8\\n\\fJohnson retroactive and he was sentenced pursuant to the ACCA’s residual clause, the\\n\\ndistrict court had the statutory authority at the first sentencing to impose a sentence\\n\\ncontaining a sentence enhancement under the residual clause of the ACCA but is now\\n\\ndeemed not to have had that authority. There is no dispute about the first two\\n\\npropositions. And as we discussed previously, we do not agree with the government’s\\n\\nargument about the third proposition that the original sentencing judge did not rely upon\\n\\nthe residual clause in sentencing Cornette, and that Cornette could not claim relief based\\n\\non Johnson. The only remaining issue, therefore, is whether the district court is now\\n\\ndeemed to have had the statutory authority to impose the sentence. It did not. The\\n\\ndistrict court sentenced Cornette pursuant to the residual clause. Welch made Johnson\\n\\nretroactive, and so all sentences rendered under the residual clause became\\n\\nunconstitutional. Therefore, Cornette’s sentence was imposed “in excess of the\\n\\nmaximum penalty provided by [ACCA],” Marin, 961 F.2d at 496, and the appeal waiver\\n\\ndoes not bar Cornette’s Johnson claim.\\n\\n To be clear, this does not mean that a subsequent change in sentencing law renders\\n\\nan otherwise valid appeal waiver invalid. Our own precedent establishes that when a\\n\\nsentencing law undergoes a non-retroactive change, a defendant who waived his right to\\n\\nappeal a sentence imposed under the old regime remains bound by that waiver even if\\n\\nresentencing under the new regime might otherwise entitle him to new rights or subject\\n\\nhim to different penalties. In United States v. Blick, 408 F.3d 162, 170 (4th Cir. 2005),\\n\\nwe rejected a defendant’s claim that he should be resentenced in light of the advisory\\n\\nGuidelines regime announced in United States v. Booker, 543 U.S. 220 (2005), reasoning\\n\\n\\n 9\\n\\fthat “[p]lea bargains rest on contractual principles” and so a party “cannot . . . ask to re-\\n\\nbargain the waiver of his right to appeal because of changes in the law.” Furthermore,\\n\\nthe defendant’s sentence was within the statutory maximum. We examined this issue\\n\\nagain in United States v. Archie, 771 F.3d 217 (4th Cir. 2014) (Agee, J.), where the\\n\\nappellant levied a challenge based on the new right created by the Supreme Court in\\n\\nAlleyne v. United States, 570 U.S. 99 (2013) that “any fact that increases the mandatory\\n\\nminimum is an ‘element’ that must be submitted to the jury.” Yet, the Supreme Court did\\n\\nnot make Alleyne retroactive. Thus, in Archie, we held that a “post-sentencing change in\\n\\nthe law does not void” an appeal waiver, reasoning that if we declined to enforce an\\n\\nappeal waiver because of a subsequent change in the law “we would deprive the\\n\\nGovernment of the benefit of its bargain and frustrate the purpose underlying such\\n\\ncontracts.” Id. at 222.\\n\\n Both Alleyne and Booker created a new prospective procedural right within the\\n\\ncontext of sentencing. But they did not do what Johnson does, which is to strike the\\n\\nstatutory provision under which a defendant was sentenced as unconstitutional, thus\\n\\nremoving the district court’s statutory authorization to sentence altogether. Yet Johnson\\n\\nalone would give Cornette no relief. Only with the addition of Welch does Cornette have\\n\\na viable claim.\\n\\n Unlike the substantive rule that the Supreme Court announced in Johnson and\\n\\nmade retroactive in Welch, the Supreme Court never made the procedural rules in Alleyne\\n\\nand Booker retroactive. Accordingly, in Blick and Archie we were considering sentences\\n\\nthat were still permissible at the time they were imposed. Welch makes clear that\\n\\n\\n 10\\n\\fsentences imposed under the residual clause of the ACCA are impermissible because\\n\\nevery person in the “class of persons” sentenced under the residual clause is one\\n\\n“convicted of conduct the law does not make criminal.” 136 S. Ct. at 1265 (internal\\n\\ncitation and quotation marks omitted). A defendant such as Cornette who “does not\\n\\nconstitute an armed career criminal . . . [has] received a punishment that the law cannot\\n\\nimpose upon him.” United States v. Shipp, 589 F.3d 1084, 1091 (10th Cir. 2009)\\n\\n(internal quotation marks omitted) (citing Schriro v. Summerlin, 542 U.S. 348, 352\\n\\n(2004)).\\n\\n In sum, because the residual clause was struck from the ACCA in Johnson and the\\n\\nSupreme Court determined in Welch that Johnson announced a substantive rule that\\n\\napplied retroactively, the district court is now deemed to have had no statutory authority\\n\\nto impose Cornette’s sentence under the residual clause of the ACCA. Accordingly, we\\n\\nmay review Cornette’s sentencing challenge notwithstanding the appeal waiver.\\n\\n\\n\\n C.\\n\\n We turn now to the merits of Cornette’s ACCA arguments. Cornette contends that\\n\\nhis 1976 conviction for Georgia felony burglary is not categorically a violent felony\\n\\nbecause both the unlawful entry and location elements of Georgia burglary are overbroad\\n\\nwhen compared to the corresponding elements of generic burglary under the enumerated\\n\\n\\n\\n\\n 11\\n\\fclause of the ACCA. 1 We first determine that the Georgia burglary statute under which\\n\\nCornette was convicted is indivisible, requiring application of the categorical approach.\\n\\nWe next apply the categorical approach to determine whether Cornette’s conviction\\n\\nqualifies as an ACCA predicate. We conclude that it does not.\\n\\n\\n\\n 1.\\n\\n We must first determine whether Georgia’s burglary statute at the time of\\n\\nCornette’s 1976 conviction is divisible or indivisible. If Georgia’s definition of burglary\\n\\nis divisible, we use the modified categorial approach to determine whether it qualifies as\\n\\nan ACCA predicate. United States v. Hemingway, 734 F.3d 323, 331 (4th Cir. 2013).\\n\\nThe modified categorical approach permits us to consult certain court records—such as\\n\\ncharging documents, plea agreements, transcripts of plea colloquies, judicial findings of\\n\\nfact and conclusions of law, jury instructions, and verdict forms—to determine whether\\n\\nthe conduct underlying the defendant’s conviction fits the mold of an ACCA predicate.\\n\\nShepard v. United States, 544 U.S. 13, 26 (2005). But if Georgia’s definition of burglary\\n\\nis not divisible, we use the categorical approach and restrict our analysis to the fact of the\\n\\nconviction itself, taking no account of the actual conduct on which the conviction is\\n\\nbased. Hemingway, 734 F.3d at 332. We conclude that Georgia’s definition of burglary\\n\\nis not divisible, making the categorical approach appropriate.\\n\\n\\n1\\n There is no real question that Georgia felony burglary does not qualify as a violent\\nfelony under the force clause of the ACCA—a person may commit burglary by entering\\n“without authority.” The Government makes no argument to the contrary.\\n\\n\\n 12\\n\\f We determine whether a statute is divisible based on whether the statute contains\\n\\n“multiple alternative elements (thus creating multiple versions of a crime)” such that it is\\n\\ndivisible or “multiple alternative means (of committing the same crime)” such that it is\\n\\nindivisible. Omargharib v. Holder, 775 F.3d 192, 198 (4th Cir. 2014) (emphasis in\\n\\noriginal). Under Mathis v. United States, the text of the statute and controlling state law\\n\\nare starting points for answering this question. 136 S. Ct. 2243 (2016).\\n\\n The first question before us, then, is whether the text of the statute of Cornette’s\\n\\nconviction suggests that the offense is divisible. The 1968 Georgia burglary statute under\\n\\nwhich Cornette was convicted reaches any person who “without authority and with the\\n\\nintent to commit a felony . . . enters or remains within . . . any building, vehicle, railroad\\n\\ncar, watercraft, or other such structure designed for use as the dwelling of another, or\\n\\nenters or remains within any other building or any room or any part thereof.” Ga. Code §\\n\\n26-1601 (1968). We must therefore determine whether the statute creates (a) separate\\n\\ncrimes of burglary that differ based on the type of location entered—e.g., burglary of a\\n\\nbuilding, burglary of a watercraft, burglary of a structure designed for use as a dwelling,\\n\\nand so on—or (b) a single crime of burglary that requires, as one element, entry into any\\n\\nof several different types of location.\\n\\n As a threshold matter, the statute does set forth a disjunctive list of types of\\n\\nlocations that may be burgled. See United States v. Fuertes, 805 F.3d 485, 498 (4th Cir.\\n\\n2015). While the statute’s disjunctive language sets up a divisibility question, it does not\\n\\nanswer it. Id. (“[M]ere use of the disjunctive ‘or’ in the definition of a crime does not\\n\\nautomatically render it divisible.”); United States v. Royal, 731 F.2d 333, 340 (4th Cir.\\n\\n\\n 13\\n\\f2013) (holding that similarly disjunctive jury instructions were compatible with an\\n\\nindivisible offense). Instead, we consider whether the statute’s language describes\\n\\n“statutory alternatives” indicating different crimes or mere “illustrative examples”\\n\\nreferring only to a crime’s means of commission. Mathis, 136 S. Ct. at 2256.\\n\\n Here, the language of the Georgia burglary statute suggests a single crime of\\n\\nburglary while spelling out various factual ways to fulfill the location element of the\\n\\noffense. That is, the “illustrative examples” in the statute of burgling a watercraft or\\n\\nrailroad car refer only to the means of commission. Id. Additionally, the statute does not\\n\\ncontain different penalties based on the type of location burgled and does not require\\n\\nprosecutors to charge the type of location burgled. Therefore, the statute’s language\\n\\nsuggests that it consists of alternative means as opposed to alternative elements.\\n\\n Controlling state court decisions confirm that the statute contains alternative\\n\\nmeans. How state courts treat jury instructions, in particular, can be instructive on\\n\\nwhether a statute lists means or elements. In Omargharib, we explained that elements of\\n\\na crime, as opposed to means, are factual circumstances of the offense that the jury must\\n\\nfind “unanimously and beyond a reasonable doubt.” 775 F.3d at 198 (internal citation\\n\\nand quotation marks omitted). As relevant here, Georgia courts have repeatedly upheld\\n\\njury instructions where a jury was entitled to find entry into either a “dwelling house or\\n\\nbuilding,” with no unanimity requirement on those alternatives. In Hart v. State, the\\n\\nGeorgia Supreme Court held that such a jury instruction was “sufficient to inform the\\n\\njury of the essential elements of the offense.” 517 S.E.2d 790, 793 (Ga. Ct. App. 1999).\\n\\nSignificantly, the indictment in Hart charged entry into a “dwelling house,” a term used\\n\\n\\n 14\\n\\fin the burglary statute, but the jury was not required to agree that the location burgled\\n\\nwas indeed a “dwelling house.” Id. at 792; see also Long v. State, 705 S.E.2d 889 (Ga.\\n\\nCt. App. 2011) (upholding jury instruction with identical location element as “complete\\n\\nand correct”). The lack of a jury unanimity requirement on the type of location burgled\\n\\nindicates that burglary includes multiple alternative means as opposed to elements, and so\\n\\nis an indivisible offense.\\n\\n While Georgia law does require prosecutors to charge “the specific location”\\n\\nburgled, see Morris v. State, 303 S.E.2d 492, 494 (Ga. Ct. App. 1983) (stating that an\\n\\nindictment “must specify the location of the burglary” in order “to give the defendant\\n\\nample opportunity to prepare a defense”), there is no analogous requirement that\\n\\nprosecutors charge or prove the type of location burgled. In State v. Green, 218 S.E.2d\\n\\n456, 457 (Ga. 1975), the Georgia Supreme Court dismissed an indictment charging a\\n\\ndefendant with entering “a building” because its failure to specify “the location of the\\n\\nbuilding in question” deprived the defendant of required notice. If the “specific location”\\n\\nrequirement pertained to the elements of the offense, the indictment in Green would have\\n\\nbeen adequate. Conversely, the Georgia Court of Appeals in Mobley v. State, 296 S.E.2d\\n\\n154, 154 (Ga. Ct. App. 1982), upheld an indictment that charged a defendant with\\n\\nburgling the “Social Circle Drug Store,” even though it made no reference to a specific\\n\\nlocation type stated in the burglary statute. Therefore, we conclude that this rule pertains\\n\\nto the address of the location burgled as opposed to the type of location burgled.\\n\\n Resisting this conclusion, the government points to DeFrancis v. Manning, 271\\n\\nS.E.2d 209 (Ga. 1980), in which the Georgia Supreme Court held an indictment to be\\n\\n\\n 15\\n\\flegally defective because it charged burglary of a car without alleging that the car was\\n\\ndesigned for use as a dwelling. The government’s reliance on DeFrancis is misplaced.\\n\\nAll DeFrancis tells us is that burglary requires a dwelling. It does not tell us that the\\n\\nparticular type of dwelling must be specified in the indictment. And it certainly does not\\n\\nrequire the jury to agree on the type of dwelling alleged to have been burgled. See\\n\\nRichardson v. United States, 890 F.3d 616, 624 (6th Cir. 2018) (finding that DeFrancis\\n\\ndoes not bear on the divisibility inquiry).\\n\\n To summarize, both the text of the Georgia burglary statute in effect at the time of\\n\\nCornette’s conviction and controlling state law indicate that burglary is a single,\\n\\nindivisible crime: the statutory text contains only alternative means of committing\\n\\nburglary and state court precedent indicates that there is no requirement that a jury must\\n\\nunanimously agree on the type of location that is burgled. Accordingly, the statute is\\n\\nindivisible, and we apply the categorical approach. 2\\n\\n\\n 2\\n We recognize that our conclusion puts us at odds with the Eleventh Circuit’s\\ndecision in United States v. Gundy, 842 F.3d 1156 (11th Cir. 2016), and the Sixth\\nCircuit’s decision in Richardson v. United States, 890 F.3d 616 (6th Cir. 2018).\\nRespectfully, we do not find the reasoning of our sister circuits persuasive.\\n The Eleventh Circuit relied on the text of the Georgia statute, the fact that “under\\nGeorgia law a prosecutor must select, identify, and charge the specific place or location\\nthat was burgled,” and the defendant’s indictment to find the statute divisible. Gundy,\\n842 F.3d at 1167. However, the inclusion of a “disjunctive list” in a criminal statute is\\nnot probative of divisibility and Georgia’s requirement that prosecutors charge a “specific\\nlocation” means just that the prosecutor must include the address of the location burgled\\nto pass statutory muster and does not indicate that the statute itself sets forth alternative\\ncrimes based on the type of location.\\n The Sixth Circuit found the statute divisible because the defendant’s indictments\\nstated the location types enumerated in the Georgia statute. Richardson, 890 F.3d at 629.\\nBut even if Georgia caselaw is ambiguous enough to allow a reviewing court to consider\\n(Continued)\\n\\n\\n 16\\n\\f 2.\\n\\n Utilizing the categorical approach, we move to whether, at the time of Cornette’s\\n\\nconviction in 1976, the definition of burglary in the Georgia burglary statute criminalized\\n\\nmore conduct than ACCA generic burglary. See McNeill v. United States, 563 U.S. 816,\\n\\n820 (2011) (court applying ACCA must conduct “backward-looking” inquiry into prior\\n\\nconvictions, meaning that court must “consult the law that applied at the time of th[ose]\\n\\nconviction[s]”); see also Rivera v. United States, 716 F.3d 685, 688 (2d Cir. 2013)\\n\\n(“Whether a prior conviction qualifies as a predicate felony for the ACCA sentencing\\n\\nenhancement is determined by looking to state law existing at the time of that\\n\\nconviction.”). We hold that it did.\\n\\n Let us start with the generic definition of burglary. In United States v. Stitt, the\\n\\nSupreme Court held that generic burglary under the enumerated clause of the ACCA is\\n\\n“an unlawful or unprivileged entry into, or remaining in, a building or other structure,\\n\\nwith intent to commit a crime.” 139 S. Ct. 399, 405–06 (2018) (citing Taylor v. United\\n\\nStates, 495 U.S. 575, 598 (1990)). This definition includes entry into vehicles “adapted\\n\\nor customarily used for lodging.” Id. at 406.\\n\\n\\n\\n\\nan individual defendant’s indictment as authorized under Mathis, that “peek” is for the\\n“sole and limited purpose of determining whether [alternatives] are elements of the\\noffense.” 136 S. Ct. at 2257. As the Georgia Supreme Court reasoned in Hart, even an\\nindictment that includes a specific type of statutory location cannot establish that the\\nlocation type is an element of the charged offense because a jury could properly have\\nbeen instructed with finding entry into either a “dwelling house or building.” 517 S.E.2d\\nat 793. Accordingly, the Richardson court’s reliance on the specific indictments of the\\ndefendant to conclude that the type of location is an element of burglary was misplaced.\\n\\n\\n 17\\n\\f At the time of Cornette’s conviction, Georgia’s definition of burglary was broader\\n\\nthan the generic definition. The statute defining burglary reads as follows:\\n\\n A person commits burglary when, without authority and with the intent to\\n commit a felony or theft therein, he enters or remains within the dwelling\\n house of another, or any building, vehicle, railroad car, aircraft, watercraft,\\n or other such structure designed for use as the dwelling of another, or enters\\n or remains within any other building or any room or any part thereof. A\\n person convicted of burglary shall be punished by imprisonment for not\\n less than one nor more than 20 years.\\n\\nGa. Code § 26-1601 (1968). Facially, this definition of burglary appears to conform to\\n\\nStitt’s generic definition: it criminalizes entry into vehicles only if they are “designed for\\n\\nuse as the dwelling of another.” Id. But our reading of the statute’s language does not\\n\\ncontrol. Instead, we must defer to the interpretation of the statute employed by Georgia\\n\\ncourts at the time of Cornette’s conviction, in 1976. And at the time of Cornette’s\\n\\nconviction, Georgia’s intermediate appellate court had held that the state’s definition of\\n\\nburglary included entry into “any . . . vehicle,” regardless of whether it was designed for\\n\\nuse as a dwelling. Hayes, 186 S.E.2d at 436. Thus, when Cornette was convicted,\\n\\nGeorgia’s definition of burglary criminalized a broader range of conduct than the generic\\n\\ndefinition of burglary we use for ACCA purposes.\\n\\n The government argues that Hayes has no bearing on our analysis because it was\\n\\nissued by an intermediate appellate court, rather than by Georgia’s highest court.\\n\\nAccording to the government, instead of looking to Hayes, we should turn our attention\\n\\nto Massey v. State, 234 S.E.2d 144 (Ga. 1977). In Massey, the Supreme Court of Georgia\\n\\nrejected Hayes, holding that “the clear intent of [the Georgia burglary] statute is that for a\\n\\nperson to be guilty of burglary of a vehicle such vehicle must be designed for use as a\\n\\n\\n 18\\n\\fdwelling.” But Massey was not decided until 1977, whereas Cornette was convicted in\\n\\n1976. At the time of Cornette’s conviction, Hayes had been decided and Massey had not.\\n\\nThat being so, we consider Hayes to be the binding interpretation of Georgia law at the\\n\\ntime of Cornette’s conviction. Indeed, when confronting matters of state law that have\\n\\nnot yet been decided by the state’s high court, we typically turn to the state’s intermediate\\n\\nappellate courts. See Assicurazioni Generali, S.p.A. v. Neil, 160 F.3d 997, 1002 (4th Cir.\\n\\n1998) (citing West v. AT & T Co., 311 U.S. 223, 237 (1940)). Nothing more is called for\\n\\nhere. In 1976, the crime of burglary in Georgia reached more conduct than the generic\\n\\ncrime of burglary enumerated in the ACCA; therefore, Cornette’s burglary conviction is\\n\\nnot a “violent felony” for purposes of the ACCA sentencing enhancement. 3\\n\\n Additionally, the government calls our attention to DeFrancis, 271 S.E.2d 209, in\\n\\nwhich the Supreme Court of Georgia granted habeas relief to a petitioner who had been\\n\\nconvicted of burglary in 1974 but whose indictment was deficient under the post-Massey\\n\\ninterpretation of the burglary statute. DeFrancis does not affect our analysis. The\\n\\ninquiry into whether state law at the time of conviction “covers more conduct” than the\\n\\ngeneric offense does not anticipate a separate inquiry into whether some convicted\\n\\ndefendants later accrued a claim to habeas relief, as happened with the habeas petitioner\\n\\nin DeFrancis. Mathis, 136 S. Ct. at 2250. This approach comports with other circuits\\n\\nthat have considered the question. See, e.g., United States v. Faust, 853 F.3d 39, 58 (1st\\n\\nCir. 2017) (declining to consider subsequent judicial interpretations of an unchanged\\n\\n3\\n Based on our holding, we need not consider Cornette’s additional argument that the\\nunlawful entry element of Georgia burglary is broader than generic burglary.\\n\\n\\n 19\\n\\fstatute for purposes of applying the categorical approach under the ACCA); United States\\n\\nv. Roblero-Ramirez, 716 F.3d 1122 (8th Cir. 2013) (looking to highest state court caselaw\\n\\nat the time of defendant’s state court conviction to determine that Nebraska sudden\\n\\nquarrel manslaughter was not a “crime of violence” under the Sentencing Guidelines,\\n\\neven where Nebraska Supreme Court later held that manslaughter required intent, as\\n\\n“[t]hat interpretation was not Nebraska law when Roblero-Ramirez was convicted.”).\\n\\n Therefore, Massey and DeFrancis do not disturb our conclusion that at the time of\\n\\nCornette’s conviction, the highest Georgia state court to interpret the location element of\\n\\nthe Georgia burglary statute held that it covered entry into “any . . . vehicle.” Hayes, 186\\n\\nS.E.2d at 436. Thus, the Georgia burglary statute, as construed by the applicable Georgia\\n\\ncourt at the time of Cornette’s conviction, is overbroad compared to the generic burglary\\n\\ncrime in the enumerated clause of the ACCA, and Cornette’s 1976 burglary conviction is\\n\\ntherefore not a “violent felony” for purposes of the ACCA sentencing enhancement.\\n\\n\\n\\n D.\\n\\n Having determined that Cornette’s burglary conviction no longer qualifies as a\\n\\nviolent felony, we move to whether Cornette’s 1984 North Carolina controlled substance\\n\\nconvictions qualify as ACCA predicates. Cornette contends that in light of our decisions\\n\\nin United States v. Newbold, 791 F.3d 455 (4th Cir. 2015), and United States v. Simmons,\\n\\n\\n\\n\\n 20\\n\\f649 F.3d 237 (4th Cir. 2011) (en banc), these convictions no longer qualify as ACCA\\n\\npredicates. We agree. 4\\n\\n In Newbold, we applied Simmons to determine whether a 1984 North Carolina\\n\\nconviction imposed under the Fair Sentencing Act qualified as a serious drug offense for\\n\\npurposes of § 924(e)(2)(A). 791 F.3d at 463. We looked to the presumptive sentence\\n\\nthat the offense carried and whether the defendant’s state court judgment had\\n\\n“aggravating factors supporting a sentence within the aggravated range,” that is, a\\n\\nsentence above the presumptive sentence. Id. There, the judgment did not state any\\n\\naggravating factors found by the sentencing judge, and there was no evidence found in\\n\\nthe plea transcript to support an admission of aggravating factors, and so we held that\\n\\nNewbold’s conviction did not qualify as a serious drug offense because he could not have\\n\\nreceived ten years of imprisonment for the offense without a finding of aggravating\\n\\nfactors. Id. at 461–63.\\n\\n At the time of Cornette’s 1984 conviction, North Carolina also sentenced criminal\\n\\ndefendants under the Fair Sentencing Act. And like the record we examined in Newbold,\\n\\nthe record before us has no finding and recording of aggravating or mitigating factors.\\n\\nCornette’s state court judgment only shows that the presumptive range for his controlled\\n\\nsubstance conviction was three years’ imprisonment and that the maximum term was 10\\n\\n\\n4\\n The district court found that Cornette had not timely challenged his ACCA designation\\nunder Simmons. In doing so, it misapprehended the nature of Cornette’s challenge—at\\nthe time of Simmons, Cornette had three remaining ACCA predicate offenses, and so\\ncould not claim relief under Simmons to argue that his sentence “was in excess of the\\nmaximum authorized by law” under § 2255(a).\\n\\n\\n 21\\n\\fyears. J.A. 95. Under the Fair Sentencing Act, Cornette could not have received 10\\n\\nyears of imprisonment for his North Carolina controlled substance conviction without a\\n\\nfinding of aggravating factors on the record. There is no such finding, and so Cornette’s\\n\\n1984 controlled substance conviction is not a “serious drug offense” as is necessary to\\n\\nqualify as an ACCA predicate.\\n\\n\\n\\n IV.\\n\\n To recap, we hold that: (1) Cornette may appeal his sentence notwithstanding the\\n\\nappeal waiver in his plea agreement; (2) his 1976 Georgia burglary conviction is not a\\n\\n“violent felony” under the ACCA; and (3) his 1984 North Carolina controlled substances\\n\\nconviction is not a “serious drug crime” under the ACCA. Therefore, Cornette does not\\n\\nhave the requisite number of predicate offenses to be designated an armed career criminal\\n\\nunder the ACCA. We therefore grant Cornette’s § 2255 petition and reverse and remand\\n\\nfor resentencing, with instructions for the district court to resentence Cornette without the\\n\\nACCA enhancement.\\n\\n REVERSED AND REMANDED WITH INSTRUCTIONS\\n\\n\\n\\n\\n 22\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4421258/\", \"author_raw\": \"FLOYD, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"AGEE"},"judge2":{"kind":"string","value":"FLOYD"},"judge3":{"kind":"string","value":"DUNCAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4644005/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Randall CORNETTE, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-07-30\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-6041\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nRANDALL CORNETTE,\n\n Defendant - Appellant.\n\n\n\nAppeal from the United States District Court for the Western District of North Carolina,\nat Asheville. Martin K. Reidinger, District Judge. (1:08-cr-00056-MR-1; 1:16-cv-\n00153-MR)\n\n\nArgued: March 19, 2019 Decided: July 30, 2019\n\n\nBefore AGEE and FLOYD, Circuit Judges, and DUNCAN, Senior Circuit Judge.\n\n\nReversed and remanded by published opinion. Judge Floyd wrote the opinion in which\nJudge Agee and Senior Judge Duncan joined.\n\n\nARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH\nCAROLINA, INC., Asheville, North Carolina, for Appellant. Anthony Joseph Enright,\nOFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for\nAppellee. ON BRIEF: Caryn Devins, Research & Writing Specialist, FEDERAL\nDEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina,\nfor Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED\nSTATES ATTORNEY, Charlotte, North Carolina, for Appellee.\n\fFLOYD, Circuit Judge:\n\n Appellant Randall Cornette was sentenced as an armed career criminal because of\n\ncertain predicate state convictions that the district court considered to be “violent\n\nfelonies” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Cornette\n\nnow contends that in light of the Supreme Court’s decision in Johnson v. United States,\n\n135 S. Ct. 2551 (2015), he no longer has the requisite number of predicate offenses for\n\nthe ACCA’s sentencing enhancement. In the unique context of the facts presented, we\n\nagree.\n\n\n\n I.\n\n Cornette pleaded guilty to being a felon in possession of a firearm in violation of\n\n18 U.S.C. § 922(g)(1) pursuant to a written plea agreement with an appeal waiver. Under\n\n18 U.S.C. § 924(a)(2), this conviction carries a maximum prison sentence of ten years.\n\nHowever, the presentence report (PSR) designated the following predicate “violent\n\nfelony” convictions under the ACCA: (1) a 1976 Georgia felony burglary; (2) a 1979\n\nNorth Carolina breaking-and-entering; (3) a 1986 North Carolina felony possession with\n\nintent to manufacture/sell/deliver schedule II controlled substance and felony sell/deliver\n\nschedule II controlled substance; and (4) a 1989 North Carolina felony breaking and\n\nentering. Based on these convictions, the district court determined that Cornette was an\n\narmed career criminal under the ACCA and sentenced him to 220 months of\n\nimprisonment.\n\n\n\n\n 2\n\f Cornette did not challenge the ACCA enhancement at his initial sentencing,\n\nalthough he appealed the district court’s judgment. We vacated the sentence because the\n\ndistrict court procedurally erred in failing to adequately explain Cornette’s sentence.\n\nUnited States v. Cornette, 396 F. App’x 8, 8 (4th Cir. 2010). On remand, Cornette\n\nchallenged his ACCA enhancement but withdrew the challenge prior to resentencing. On\n\nresentencing, the district court once again sentenced Cornette to 220 months\n\nimprisonment. A review of that resentencing reveals that the district court did not specify\n\nwhether it relied on the ACCA’s enumerated clause, which includes “burglary” as a\n\nqualifying violent felony, or the residual clause in finding that Cornette qualified for the\n\nACCA enhancement.\n\n In 2012, Cornette filed his first motion under 28 U.S.C. § 2255 alleging ineffective\n\nassistance of counsel. The district court denied Cornette’s motion and denied a certificate\n\nof appealability. After the Supreme Court’s decision in Johnson ruling the residual\n\nclause of the ACCA void for vagueness, Cornette filed a second § 2255 motion arguing\n\nthat he was no longer an armed career criminal. The district court dismissed this as an\n\nunauthorized second and successive § 2255. We granted a motion authorizing Cornette\n\nto file a second and successive § 2255. Cornette then filed a § 2255 motion, once again\n\narguing that he no longer qualified as an armed career criminal under Johnson because\n\n(1) his 1976 Georgia burglary conviction no longer qualified as a predicate offense for\n\nACCA purposes under the remaining force or enumerated clauses of ACCA and (2) his\n\nNorth Carolina controlled substance convictions did not qualify as ACCA predicates in\n\n\n\n\n 3\n\flight of our decisions in United States v. Newbold, 791 F.3d 455 (4th Cir. 2015), and\n\nUnited States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc).\n\n The district court denied Cornette’s motion, this time on the merits, finding that\n\nCornette’s sentence was proper because his Georgia burglary convictions met the\n\nelements of generic burglary under § 924(e)(2)(B)(ii). This appeal followed.\n\n\n\n II.\n\n Whether an offense constitutes a “violent felony” under the ACCA is a question of\n\nlaw that we review de novo. See United States v. White, 571 F.3d 365, 367 (4th Cir.\n\n2009).\n\n\n\n III.\n\n We begin with an overview of the post-Johnson ACCA landscape. Second, we\n\naddress why the appeal waiver in Cornette’s plea agreement does not bar us from\n\nreaching the merits of his ACCA claims. Third, we determine that Cornette’s 1976\n\nGeorgia burglary conviction does not qualify as a violent crime under the ACCA.\n\nFinally, we hold that Cornette’s North Carolina controlled substance convictions do not\n\nqualify as serious drug offenses under the ACCA. Accordingly, we grant Cornette’s\n\n§ 2255 motion and remand for resentencing.\n\n A.\n\n Under the ACCA, a person who is convicted of being a felon in possession of a\n\nfirearm and who “has three previous convictions . . . for a violent felony or a serious drug\n\n\n 4\n\foffense . . . committed on occasions different from one another . . . shall be . . .\n\nimprisoned not less than fifteen years[.]” 18 U.S.C. § 924(e)(1). The statute defines\n\n“violent felony” as:\n\n any crime punishable by imprisonment for a term exceeding one year . . .\n that . . . (i) has as an element the use, attempted use, or threatened use of\n physical force against the person of another; or (ii) is burglary, arson, or\n extortion, involves use of explosives, or otherwise involves conduct that\n presents a serious potential risk of physical injury to another[.]\n\n18 U.S.C. § 924(e)(2)(B). The first part of subsection (ii) is referred to as the\n\n“enumerated offenses” clause, while the phrase “otherwise involves conduct that presents\n\na serious potential risk of physical injury to another” is known as the “residual clause.”\n\nJohnson, 135 S. Ct. at 2555–57. In Johnson, the Supreme Court held that the residual\n\nclause was unconstitutionally void for vagueness but that its “decision [did] not call into\n\nquestion application of the [ACCA] to the four enumerated offenses, or the remainder of\n\nthe Act’s definition of a violent felony.” Id. at 2563.\n\n In Welch v. United States, the Supreme Court held that Johnson was a substantive\n\nrule that applied retroactively on collateral review, as it “narrow[ed] the scope of [the\n\nACCA] by interpreting its terms,” and was also a “constitutional determination[] that\n\nplace[d] particular conduct or persons covered by the statute beyond the State’s power to\n\npunish.” 136 S.Ct. 1257, 1265 (2016) (internal citation and quotation marks omitted).\n\nWelch made clear that the residual clause of the ACCA “can no longer mandate or\n\nauthorize any sentence,” and that the substantive rule announced in Johnson “change[d]\n\nthe scope of the underlying criminal proscription” because there was a “significant risk\n\n\n\n\n 5\n\fthat a defendant stands convicted of an act that the law does not make criminal.” Id. at\n\n1265–66 (internal citation and quotation marks omitted).\n\n The statutory landscape as it stands today is that a defendant’s prior conviction can\n\nstill qualify as a “violent felony” only under the force clause or the enumerated clause of\n\nthe ACCA. The record of Cornette’s sentencing is unclear as to which clause of the\n\nACCA—or even what predicate convictions—the district court relied upon in sentencing\n\nhim. That is, in announcing its original sentence, the sentencing court stated only that it\n\noverruled all of Cornette’s objections to the PSR and determined that the final offense\n\nlevel of 32 was “correct as stated in the Presentence Investigation Report and adopted by\n\nthe Court.” J.A. 28. Upon remand and resentencing, the sentencing court stated only that\n\nthe total offense level of 32 and the criminal history category of VI made the applicable\n\nguideline range 210 to 262 months. J.A. 54. There was no discussion of any of the\n\nACCA’s clauses in either sentencing.\n\n The government contends that the record does not establish that Cornette was\n\nsentenced under the residual clause such that Cornette cannot present any Johnson II-\n\nbased challenge to his sentence. But under United States v. Winston, 850 F.3d 677 (4th\n\nCir. 2017), we are to read this equivocation in the record in Cornette’s favor. We\n\nrecently reaffirmed this reasoning, stating that “a Johnson II-based § 2255 motion relies\n\non a new rule of constitutional law . . . when the petitioner’s ACCA-enhanced sentence\n\n‘may have been predicated on application of the now-void residual clause.’” United\n\nStates v. Hodge, 902 F.3d 420, 426 (4th Cir. 2018) (citing Winston, 850 F.3d at 682). In\n\nother words, we “will not penalize a movant for a court’s discretionary choice not to\n\n\n 6\n\fspecify under which clause of Section 924(e)(2)(B) an offense qualified as a violent\n\nfelony.” Winston, 850 F.3d at 682. Since it is not clear one way or the other, we assume\n\nfor purposes of this appeal that Cornette was sentenced under the ACCA’s residual\n\nclause.\n\n\n\n B.\n\n We now turn to whether Cornette’s appeal waiver bars us from considering the\n\nmerits of his ACCA petition for relief. We hold that it does not under the circumstances\n\nof this case.\n\n Cornette’s plea agreement waived his right to appeal from errors in the sentence\n\nimposed against him, except for claims of ineffective assistance of counsel and\n\nprosecutorial misconduct. Cornette concedes that the claim he presses here is neither an\n\nineffective assistance of counsel nor a prosecutorial misconduct claim. But Cornette\n\ncontends that his otherwise valid appeal waiver does not bar him from now arguing that\n\nby imposing a sentence under the now unconstitutional residual clause of the ACCA, the\n\ndistrict court exceeded its statutory authority to sentence him. Cornette’s argument finds\n\nsupport in the precedent of this Court.\n\n In United States v. Marin, we held that “a defendant who waives his right to an\n\nappeal does not subject himself to being sentenced entirely at the whim of the district\n\ncourt.” 961 F.2d 493, 496 (4th Cir. 1993). An appeal waiver does not preclude a\n\ndefendant from challenging a sentence “based on a constitutionally impermissible factor”\n\nor “a sentence imposed in excess of the maximum penalty provided by statute.” Id.; see\n\n\n 7\n\falso Garza v. Idaho, 139 S.Ct. 738, 745 n.6 (2019) (recognizing that lower courts have\n\napplied exceptions to appeal waivers for claims “that a sentence . . . exceeds the statutory\n\nmaximum authorized”); United States v. Cohen, 888 F.3d 667, 683 (4th Cir. 2018)\n\n(reiterating that “an appeal waiver does not preclude . . . challenges that a sentence\n\nexceeds a statutory maximum or is based upon a constitutionally infirm factor”); United\n\nStates v. General, 278 F.3d 389, 399 (4th Cir. 2002) (acknowledging that “arguments\n\ncontending that sentence was imposed upon constitutionally impermissible factors or that\n\nsentence exceeds the statutory maximum are not barred by contractual waivers.”).\n\n We subsequently applied Marin to the question of whether an appeal waiver\n\nbarred a defendant from challenging a district court’s restitution order that exceeded the\n\nstatutorily authorized punishment for a defendant’s underlying conviction. United States\n\nv. Broughton-Jones, 71 F.3d 1143, 1147 (4th Cir. 1995). It does not. Id. (“Because a\n\nrestitution order imposed when it is not authorized by [statute] is no less ‘illegal’ than a\n\nsentence of imprisonment that exceeds the statutory maximum, appeals challenging the\n\nlegality of restitution orders are similarly outside the scope of a defendant’s otherwise\n\nvalid appeal waiver.”). Cornette’s challenge to his sentence is likewise predicated on the\n\nassertion that the district court did not have the statutory authority to impose the sentence\n\nit did (here, under the residual clause, rather than the restitution statute), and so Marin\n\nand Broughton-Jones support his contention.\n\n Cornette’s argument can be simplified to the following: (1) Johnson struck the\n\nresidual clause of the ACCA as unconstitutional; (2) Welch made Johnson retroactive; (3)\n\nhe was sentenced pursuant to ACCA’s residual clause; and (4) because Welch made\n\n\n 8\n\fJohnson retroactive and he was sentenced pursuant to the ACCA’s residual clause, the\n\ndistrict court had the statutory authority at the first sentencing to impose a sentence\n\ncontaining a sentence enhancement under the residual clause of the ACCA but is now\n\ndeemed not to have had that authority. There is no dispute about the first two\n\npropositions. And as we discussed previously, we do not agree with the government’s\n\nargument about the third proposition that the original sentencing judge did not rely upon\n\nthe residual clause in sentencing Cornette, and that Cornette could not claim relief based\n\non Johnson. The only remaining issue, therefore, is whether the district court is now\n\ndeemed to have had the statutory authority to impose the sentence. It did not. The\n\ndistrict court sentenced Cornette pursuant to the residual clause. Welch made Johnson\n\nretroactive, and so all sentences rendered under the residual clause became\n\nunconstitutional. Therefore, Cornette’s sentence was imposed “in excess of the\n\nmaximum penalty provided by [ACCA],” Marin, 961 F.2d at 496, and the appeal waiver\n\ndoes not bar Cornette’s Johnson claim.\n\n To be clear, this does not mean that a subsequent change in sentencing law renders\n\nan otherwise valid appeal waiver invalid. Our own precedent establishes that when a\n\nsentencing law undergoes a non-retroactive change, a defendant who waived his right to\n\nappeal a sentence imposed under the old regime remains bound by that waiver even if\n\nresentencing under the new regime might otherwise entitle him to new rights or subject\n\nhim to different penalties. In United States v. Blick, 408 F.3d 162, 170 (4th Cir. 2005),\n\nwe rejected a defendant’s claim that he should be resentenced in light of the advisory\n\nGuidelines regime announced in United States v. Booker, 543 U.S. 220 (2005), reasoning\n\n\n 9\n\fthat “[p]lea bargains rest on contractual principles” and so a party “cannot . . . ask to re-\n\nbargain the waiver of his right to appeal because of changes in the law.” Furthermore,\n\nthe defendant’s sentence was within the statutory maximum. We examined this issue\n\nagain in United States v. Archie, 771 F.3d 217 (4th Cir. 2014) (Agee, J.), where the\n\nappellant levied a challenge based on the new right created by the Supreme Court in\n\nAlleyne v. United States, 570 U.S. 99 (2013) that “any fact that increases the mandatory\n\nminimum is an ‘element’ that must be submitted to the jury.” Yet, the Supreme Court did\n\nnot make Alleyne retroactive. Thus, in Archie, we held that a “post-sentencing change in\n\nthe law does not void” an appeal waiver, reasoning that if we declined to enforce an\n\nappeal waiver because of a subsequent change in the law “we would deprive the\n\nGovernment of the benefit of its bargain and frustrate the purpose underlying such\n\ncontracts.” Id. at 222.\n\n Both Alleyne and Booker created a new prospective procedural right within the\n\ncontext of sentencing. But they did not do what Johnson does, which is to strike the\n\nstatutory provision under which a defendant was sentenced as unconstitutional, thus\n\nremoving the district court’s statutory authorization to sentence altogether. Yet Johnson\n\nalone would give Cornette no relief. Only with the addition of Welch does Cornette have\n\na viable claim.\n\n Unlike the substantive rule that the Supreme Court announced in Johnson and\n\nmade retroactive in Welch, the Supreme Court never made the procedural rules in Alleyne\n\nand Booker retroactive. Accordingly, in Blick and Archie we were considering sentences\n\nthat were still permissible at the time they were imposed. Welch makes clear that\n\n\n 10\n\fsentences imposed under the residual clause of the ACCA are impermissible because\n\nevery person in the “class of persons” sentenced under the residual clause is one\n\n“convicted of conduct the law does not make criminal.” 136 S. Ct. at 1265 (internal\n\ncitation and quotation marks omitted). A defendant such as Cornette who “does not\n\nconstitute an armed career criminal . . . [has] received a punishment that the law cannot\n\nimpose upon him.” United States v. Shipp, 589 F.3d 1084, 1091 (10th Cir. 2009)\n\n(internal quotation marks omitted) (citing Schriro v. Summerlin, 542 U.S. 348, 352\n\n(2004)).\n\n In sum, because the residual clause was struck from the ACCA in Johnson and the\n\nSupreme Court determined in Welch that Johnson announced a substantive rule that\n\napplied retroactively, the district court is now deemed to have had no statutory authority\n\nto impose Cornette’s sentence under the residual clause of the ACCA. Accordingly, we\n\nmay review Cornette’s sentencing challenge notwithstanding the appeal waiver.\n\n\n\n C.\n\n We turn now to the merits of Cornette’s ACCA arguments. Cornette contends that\n\nhis 1976 conviction for Georgia felony burglary is not categorically a violent felony\n\nbecause both the unlawful entry and location elements of Georgia burglary are overbroad\n\nwhen compared to the corresponding elements of generic burglary under the enumerated\n\n\n\n\n 11\n\fclause of the ACCA. 1 We first determine that the Georgia burglary statute under which\n\nCornette was convicted is indivisible, requiring application of the categorical approach.\n\nWe next apply the categorical approach to determine whether Cornette’s conviction\n\nqualifies as an ACCA predicate. We conclude that it does not.\n\n\n\n 1.\n\n We must first determine whether Georgia’s burglary statute at the time of\n\nCornette’s 1976 conviction is divisible or indivisible. If Georgia’s definition of burglary\n\nis divisible, we use the modified categorial approach to determine whether it qualifies as\n\nan ACCA predicate. United States v. Hemingway, 734 F.3d 323, 331 (4th Cir. 2013).\n\nThe modified categorical approach permits us to consult certain court records—such as\n\ncharging documents, plea agreements, transcripts of plea colloquies, judicial findings of\n\nfact and conclusions of law, jury instructions, and verdict forms—to determine whether\n\nthe conduct underlying the defendant’s conviction fits the mold of an ACCA predicate.\n\nShepard v. United States, 544 U.S. 13, 26 (2005). But if Georgia’s definition of burglary\n\nis not divisible, we use the categorical approach and restrict our analysis to the fact of the\n\nconviction itself, taking no account of the actual conduct on which the conviction is\n\nbased. Hemingway, 734 F.3d at 332. We conclude that Georgia’s definition of burglary\n\nis not divisible, making the categorical approach appropriate.\n\n\n1\n There is no real question that Georgia felony burglary does not qualify as a violent\nfelony under the force clause of the ACCA—a person may commit burglary by entering\n“without authority.” The Government makes no argument to the contrary.\n\n\n 12\n\f We determine whether a statute is divisible based on whether the statute contains\n\n“multiple alternative elements (thus creating multiple versions of a crime)” such that it is\n\ndivisible or “multiple alternative means (of committing the same crime)” such that it is\n\nindivisible. Omargharib v. Holder, 775 F.3d 192, 198 (4th Cir. 2014) (emphasis in\n\noriginal). Under Mathis v. United States, the text of the statute and controlling state law\n\nare starting points for answering this question. 136 S. Ct. 2243 (2016).\n\n The first question before us, then, is whether the text of the statute of Cornette’s\n\nconviction suggests that the offense is divisible. The 1968 Georgia burglary statute under\n\nwhich Cornette was convicted reaches any person who “without authority and with the\n\nintent to commit a felony . . . enters or remains within . . . any building, vehicle, railroad\n\ncar, watercraft, or other such structure designed for use as the dwelling of another, or\n\nenters or remains within any other building or any room or any part thereof.” Ga. Code §\n\n26-1601 (1968). We must therefore determine whether the statute creates (a) separate\n\ncrimes of burglary that differ based on the type of location entered—e.g., burglary of a\n\nbuilding, burglary of a watercraft, burglary of a structure designed for use as a dwelling,\n\nand so on—or (b) a single crime of burglary that requires, as one element, entry into any\n\nof several different types of location.\n\n As a threshold matter, the statute does set forth a disjunctive list of types of\n\nlocations that may be burgled. See United States v. Fuertes, 805 F.3d 485, 498 (4th Cir.\n\n2015). While the statute’s disjunctive language sets up a divisibility question, it does not\n\nanswer it. Id. (“[M]ere use of the disjunctive ‘or’ in the definition of a crime does not\n\nautomatically render it divisible.”); United States v. Royal, 731 F.2d 333, 340 (4th Cir.\n\n\n 13\n\f2013) (holding that similarly disjunctive jury instructions were compatible with an\n\nindivisible offense). Instead, we consider whether the statute’s language describes\n\n“statutory alternatives” indicating different crimes or mere “illustrative examples”\n\nreferring only to a crime’s means of commission. Mathis, 136 S. Ct. at 2256.\n\n Here, the language of the Georgia burglary statute suggests a single crime of\n\nburglary while spelling out various factual ways to fulfill the location element of the\n\noffense. That is, the “illustrative examples” in the statute of burgling a watercraft or\n\nrailroad car refer only to the means of commission. Id. Additionally, the statute does not\n\ncontain different penalties based on the type of location burgled and does not require\n\nprosecutors to charge the type of location burgled. Therefore, the statute’s language\n\nsuggests that it consists of alternative means as opposed to alternative elements.\n\n Controlling state court decisions confirm that the statute contains alternative\n\nmeans. How state courts treat jury instructions, in particular, can be instructive on\n\nwhether a statute lists means or elements. In Omargharib, we explained that elements of\n\na crime, as opposed to means, are factual circumstances of the offense that the jury must\n\nfind “unanimously and beyond a reasonable doubt.” 775 F.3d at 198 (internal citation\n\nand quotation marks omitted). As relevant here, Georgia courts have repeatedly upheld\n\njury instructions where a jury was entitled to find entry into either a “dwelling house or\n\nbuilding,” with no unanimity requirement on those alternatives. In Hart v. State, the\n\nGeorgia Supreme Court held that such a jury instruction was “sufficient to inform the\n\njury of the essential elements of the offense.” 517 S.E.2d 790, 793 (Ga. Ct. App. 1999).\n\nSignificantly, the indictment in Hart charged entry into a “dwelling house,” a term used\n\n\n 14\n\fin the burglary statute, but the jury was not required to agree that the location burgled\n\nwas indeed a “dwelling house.” Id. at 792; see also Long v. State, 705 S.E.2d 889 (Ga.\n\nCt. App. 2011) (upholding jury instruction with identical location element as “complete\n\nand correct”). The lack of a jury unanimity requirement on the type of location burgled\n\nindicates that burglary includes multiple alternative means as opposed to elements, and so\n\nis an indivisible offense.\n\n While Georgia law does require prosecutors to charge “the specific location”\n\nburgled, see Morris v. State, 303 S.E.2d 492, 494 (Ga. Ct. App. 1983) (stating that an\n\nindictment “must specify the location of the burglary” in order “to give the defendant\n\nample opportunity to prepare a defense”), there is no analogous requirement that\n\nprosecutors charge or prove the type of location burgled. In State v. Green, 218 S.E.2d\n\n456, 457 (Ga. 1975), the Georgia Supreme Court dismissed an indictment charging a\n\ndefendant with entering “a building” because its failure to specify “the location of the\n\nbuilding in question” deprived the defendant of required notice. If the “specific location”\n\nrequirement pertained to the elements of the offense, the indictment in Green would have\n\nbeen adequate. Conversely, the Georgia Court of Appeals in Mobley v. State, 296 S.E.2d\n\n154, 154 (Ga. Ct. App. 1982), upheld an indictment that charged a defendant with\n\nburgling the “Social Circle Drug Store,” even though it made no reference to a specific\n\nlocation type stated in the burglary statute. Therefore, we conclude that this rule pertains\n\nto the address of the location burgled as opposed to the type of location burgled.\n\n Resisting this conclusion, the government points to DeFrancis v. Manning, 271\n\nS.E.2d 209 (Ga. 1980), in which the Georgia Supreme Court held an indictment to be\n\n\n 15\n\flegally defective because it charged burglary of a car without alleging that the car was\n\ndesigned for use as a dwelling. The government’s reliance on DeFrancis is misplaced.\n\nAll DeFrancis tells us is that burglary requires a dwelling. It does not tell us that the\n\nparticular type of dwelling must be specified in the indictment. And it certainly does not\n\nrequire the jury to agree on the type of dwelling alleged to have been burgled. See\n\nRichardson v. United States, 890 F.3d 616, 624 (6th Cir. 2018) (finding that DeFrancis\n\ndoes not bear on the divisibility inquiry).\n\n To summarize, both the text of the Georgia burglary statute in effect at the time of\n\nCornette’s conviction and controlling state law indicate that burglary is a single,\n\nindivisible crime: the statutory text contains only alternative means of committing\n\nburglary and state court precedent indicates that there is no requirement that a jury must\n\nunanimously agree on the type of location that is burgled. Accordingly, the statute is\n\nindivisible, and we apply the categorical approach. 2\n\n\n 2\n We recognize that our conclusion puts us at odds with the Eleventh Circuit’s\ndecision in United States v. Gundy, 842 F.3d 1156 (11th Cir. 2016), and the Sixth\nCircuit’s decision in Richardson v. United States, 890 F.3d 616 (6th Cir. 2018).\nRespectfully, we do not find the reasoning of our sister circuits persuasive.\n The Eleventh Circuit relied on the text of the Georgia statute, the fact that “under\nGeorgia law a prosecutor must select, identify, and charge the specific place or location\nthat was burgled,” and the defendant’s indictment to find the statute divisible. Gundy,\n842 F.3d at 1167. However, the inclusion of a “disjunctive list” in a criminal statute is\nnot probative of divisibility and Georgia’s requirement that prosecutors charge a “specific\nlocation” means just that the prosecutor must include the address of the location burgled\nto pass statutory muster and does not indicate that the statute itself sets forth alternative\ncrimes based on the type of location.\n The Sixth Circuit found the statute divisible because the defendant’s indictments\nstated the location types enumerated in the Georgia statute. Richardson, 890 F.3d at 629.\nBut even if Georgia caselaw is ambiguous enough to allow a reviewing court to consider\n(Continued)\n\n\n 16\n\f 2.\n\n Utilizing the categorical approach, we move to whether, at the time of Cornette’s\n\nconviction in 1976, the definition of burglary in the Georgia burglary statute criminalized\n\nmore conduct than ACCA generic burglary. See McNeill v. United States, 563 U.S. 816,\n\n820 (2011) (court applying ACCA must conduct “backward-looking” inquiry into prior\n\nconvictions, meaning that court must “consult the law that applied at the time of th[ose]\n\nconviction[s]”); see also Rivera v. United States, 716 F.3d 685, 688 (2d Cir. 2013)\n\n(“Whether a prior conviction qualifies as a predicate felony for the ACCA sentencing\n\nenhancement is determined by looking to state law existing at the time of that\n\nconviction.”). We hold that it did.\n\n Let us start with the generic definition of burglary. In United States v. Stitt, the\n\nSupreme Court held that generic burglary under the enumerated clause of the ACCA is\n\n“an unlawful or unprivileged entry into, or remaining in, a building or other structure,\n\nwith intent to commit a crime.” 139 S. Ct. 399, 405–06 (2018) (citing Taylor v. United\n\nStates, 495 U.S. 575, 598 (1990)). This definition includes entry into vehicles “adapted\n\nor customarily used for lodging.” Id. at 406.\n\n\n\n\nan individual defendant’s indictment as authorized under Mathis, that “peek” is for the\n“sole and limited purpose of determining whether [alternatives] are elements of the\noffense.” 136 S. Ct. at 2257. As the Georgia Supreme Court reasoned in Hart, even an\nindictment that includes a specific type of statutory location cannot establish that the\nlocation type is an element of the charged offense because a jury could properly have\nbeen instructed with finding entry into either a “dwelling house or building.” 517 S.E.2d\nat 793. Accordingly, the Richardson court’s reliance on the specific indictments of the\ndefendant to conclude that the type of location is an element of burglary was misplaced.\n\n\n 17\n\f At the time of Cornette’s conviction, Georgia’s definition of burglary was broader\n\nthan the generic definition. The statute defining burglary reads as follows:\n\n A person commits burglary when, without authority and with the intent to\n commit a felony or theft therein, he enters or remains within the dwelling\n house of another, or any building, vehicle, railroad car, aircraft, watercraft,\n or other such structure designed for use as the dwelling of another, or enters\n or remains within any other building or any room or any part thereof. A\n person convicted of burglary shall be punished by imprisonment for not\n less than one nor more than 20 years.\n\nGa. Code § 26-1601 (1968). Facially, this definition of burglary appears to conform to\n\nStitt’s generic definition: it criminalizes entry into vehicles only if they are “designed for\n\nuse as the dwelling of another.” Id. But our reading of the statute’s language does not\n\ncontrol. Instead, we must defer to the interpretation of the statute employed by Georgia\n\ncourts at the time of Cornette’s conviction, in 1976. And at the time of Cornette’s\n\nconviction, Georgia’s intermediate appellate court had held that the state’s definition of\n\nburglary included entry into “any . . . vehicle,” regardless of whether it was designed for\n\nuse as a dwelling. Hayes, 186 S.E.2d at 436. Thus, when Cornette was convicted,\n\nGeorgia’s definition of burglary criminalized a broader range of conduct than the generic\n\ndefinition of burglary we use for ACCA purposes.\n\n The government argues that Hayes has no bearing on our analysis because it was\n\nissued by an intermediate appellate court, rather than by Georgia’s highest court.\n\nAccording to the government, instead of looking to Hayes, we should turn our attention\n\nto Massey v. State, 234 S.E.2d 144 (Ga. 1977). In Massey, the Supreme Court of Georgia\n\nrejected Hayes, holding that “the clear intent of [the Georgia burglary] statute is that for a\n\nperson to be guilty of burglary of a vehicle such vehicle must be designed for use as a\n\n\n 18\n\fdwelling.” But Massey was not decided until 1977, whereas Cornette was convicted in\n\n1976. At the time of Cornette’s conviction, Hayes had been decided and Massey had not.\n\nThat being so, we consider Hayes to be the binding interpretation of Georgia law at the\n\ntime of Cornette’s conviction. Indeed, when confronting matters of state law that have\n\nnot yet been decided by the state’s high court, we typically turn to the state’s intermediate\n\nappellate courts. See Assicurazioni Generali, S.p.A. v. Neil, 160 F.3d 997, 1002 (4th Cir.\n\n1998) (citing West v. AT & T Co., 311 U.S. 223, 237 (1940)). Nothing more is called for\n\nhere. In 1976, the crime of burglary in Georgia reached more conduct than the generic\n\ncrime of burglary enumerated in the ACCA; therefore, Cornette’s burglary conviction is\n\nnot a “violent felony” for purposes of the ACCA sentencing enhancement. 3\n\n Additionally, the government calls our attention to DeFrancis, 271 S.E.2d 209, in\n\nwhich the Supreme Court of Georgia granted habeas relief to a petitioner who had been\n\nconvicted of burglary in 1974 but whose indictment was deficient under the post-Massey\n\ninterpretation of the burglary statute. DeFrancis does not affect our analysis. The\n\ninquiry into whether state law at the time of conviction “covers more conduct” than the\n\ngeneric offense does not anticipate a separate inquiry into whether some convicted\n\ndefendants later accrued a claim to habeas relief, as happened with the habeas petitioner\n\nin DeFrancis. Mathis, 136 S. Ct. at 2250. This approach comports with other circuits\n\nthat have considered the question. See, e.g., United States v. Faust, 853 F.3d 39, 58 (1st\n\nCir. 2017) (declining to consider subsequent judicial interpretations of an unchanged\n\n3\n Based on our holding, we need not consider Cornette’s additional argument that the\nunlawful entry element of Georgia burglary is broader than generic burglary.\n\n\n 19\n\fstatute for purposes of applying the categorical approach under the ACCA); United States\n\nv. Roblero-Ramirez, 716 F.3d 1122 (8th Cir. 2013) (looking to highest state court caselaw\n\nat the time of defendant’s state court conviction to determine that Nebraska sudden\n\nquarrel manslaughter was not a “crime of violence” under the Sentencing Guidelines,\n\neven where Nebraska Supreme Court later held that manslaughter required intent, as\n\n“[t]hat interpretation was not Nebraska law when Roblero-Ramirez was convicted.”).\n\n Therefore, Massey and DeFrancis do not disturb our conclusion that at the time of\n\nCornette’s conviction, the highest Georgia state court to interpret the location element of\n\nthe Georgia burglary statute held that it covered entry into “any . . . vehicle.” Hayes, 186\n\nS.E.2d at 436. Thus, the Georgia burglary statute, as construed by the applicable Georgia\n\ncourt at the time of Cornette’s conviction, is overbroad compared to the generic burglary\n\ncrime in the enumerated clause of the ACCA, and Cornette’s 1976 burglary conviction is\n\ntherefore not a “violent felony” for purposes of the ACCA sentencing enhancement.\n\n\n\n D.\n\n Having determined that Cornette’s burglary conviction no longer qualifies as a\n\nviolent felony, we move to whether Cornette’s 1984 North Carolina controlled substance\n\nconvictions qualify as ACCA predicates. Cornette contends that in light of our decisions\n\nin United States v. Newbold, 791 F.3d 455 (4th Cir. 2015), and United States v. Simmons,\n\n\n\n\n 20\n\f649 F.3d 237 (4th Cir. 2011) (en banc), these convictions no longer qualify as ACCA\n\npredicates. We agree. 4\n\n In Newbold, we applied Simmons to determine whether a 1984 North Carolina\n\nconviction imposed under the Fair Sentencing Act qualified as a serious drug offense for\n\npurposes of § 924(e)(2)(A). 791 F.3d at 463. We looked to the presumptive sentence\n\nthat the offense carried and whether the defendant’s state court judgment had\n\n“aggravating factors supporting a sentence within the aggravated range,” that is, a\n\nsentence above the presumptive sentence. Id. There, the judgment did not state any\n\naggravating factors found by the sentencing judge, and there was no evidence found in\n\nthe plea transcript to support an admission of aggravating factors, and so we held that\n\nNewbold’s conviction did not qualify as a serious drug offense because he could not have\n\nreceived ten years of imprisonment for the offense without a finding of aggravating\n\nfactors. Id. at 461–63.\n\n At the time of Cornette’s 1984 conviction, North Carolina also sentenced criminal\n\ndefendants under the Fair Sentencing Act. And like the record we examined in Newbold,\n\nthe record before us has no finding and recording of aggravating or mitigating factors.\n\nCornette’s state court judgment only shows that the presumptive range for his controlled\n\nsubstance conviction was three years’ imprisonment and that the maximum term was 10\n\n\n4\n The district court found that Cornette had not timely challenged his ACCA designation\nunder Simmons. In doing so, it misapprehended the nature of Cornette’s challenge—at\nthe time of Simmons, Cornette had three remaining ACCA predicate offenses, and so\ncould not claim relief under Simmons to argue that his sentence “was in excess of the\nmaximum authorized by law” under § 2255(a).\n\n\n 21\n\fyears. J.A. 95. Under the Fair Sentencing Act, Cornette could not have received 10\n\nyears of imprisonment for his North Carolina controlled substance conviction without a\n\nfinding of aggravating factors on the record. There is no such finding, and so Cornette’s\n\n1984 controlled substance conviction is not a “serious drug offense” as is necessary to\n\nqualify as an ACCA predicate.\n\n\n\n IV.\n\n To recap, we hold that: (1) Cornette may appeal his sentence notwithstanding the\n\nappeal waiver in his plea agreement; (2) his 1976 Georgia burglary conviction is not a\n\n“violent felony” under the ACCA; and (3) his 1984 North Carolina controlled substances\n\nconviction is not a “serious drug crime” under the ACCA. Therefore, Cornette does not\n\nhave the requisite number of predicate offenses to be designated an armed career criminal\n\nunder the ACCA. We therefore grant Cornette’s § 2255 petition and reverse and remand\n\nfor resentencing, with instructions for the district court to resentence Cornette without the\n\nACCA enhancement.\n\n REVERSED AND REMANDED WITH INSTRUCTIONS\n\n\n\n\n 22\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Randall CORNETTE, Defendant - Appellant.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-07-30\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-6041\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nRANDALL CORNETTE,\\n\\n Defendant - Appellant.\\n\\n\\n\\nAppeal from the United States District Court for the Western District of North Carolina,\\nat Asheville. Martin K. Reidinger, District Judge. (1:08-cr-00056-MR-1; 1:16-cv-\\n00153-MR)\\n\\n\\nArgued: March 19, 2019 Decided: July 30, 2019\\n\\n\\nBefore AGEE and FLOYD, Circuit Judges, and DUNCAN, Senior Circuit Judge.\\n\\n\\nReversed and remanded by published opinion. Judge Floyd wrote the opinion in which\\nJudge Agee and Senior Judge Duncan joined.\\n\\n\\nARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH\\nCAROLINA, INC., Asheville, North Carolina, for Appellant. Anthony Joseph Enright,\\nOFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for\\nAppellee. ON BRIEF: Caryn Devins, Research & Writing Specialist, FEDERAL\\nDEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina,\\nfor Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED\\nSTATES ATTORNEY, Charlotte, North Carolina, for Appellee.\\n\\fFLOYD, Circuit Judge:\\n\\n Appellant Randall Cornette was sentenced as an armed career criminal because of\\n\\ncertain predicate state convictions that the district court considered to be “violent\\n\\nfelonies” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Cornette\\n\\nnow contends that in light of the Supreme Court’s decision in Johnson v. United States,\\n\\n135 S. Ct. 2551 (2015), he no longer has the requisite number of predicate offenses for\\n\\nthe ACCA’s sentencing enhancement. In the unique context of the facts presented, we\\n\\nagree.\\n\\n\\n\\n I.\\n\\n Cornette pleaded guilty to being a felon in possession of a firearm in violation of\\n\\n18 U.S.C. § 922(g)(1) pursuant to a written plea agreement with an appeal waiver. Under\\n\\n18 U.S.C. § 924(a)(2), this conviction carries a maximum prison sentence of ten years.\\n\\nHowever, the presentence report (PSR) designated the following predicate “violent\\n\\nfelony” convictions under the ACCA: (1) a 1976 Georgia felony burglary; (2) a 1979\\n\\nNorth Carolina breaking-and-entering; (3) a 1986 North Carolina felony possession with\\n\\nintent to manufacture/sell/deliver schedule II controlled substance and felony sell/deliver\\n\\nschedule II controlled substance; and (4) a 1989 North Carolina felony breaking and\\n\\nentering. Based on these convictions, the district court determined that Cornette was an\\n\\narmed career criminal under the ACCA and sentenced him to 220 months of\\n\\nimprisonment.\\n\\n\\n\\n\\n 2\\n\\f Cornette did not challenge the ACCA enhancement at his initial sentencing,\\n\\nalthough he appealed the district court’s judgment. We vacated the sentence because the\\n\\ndistrict court procedurally erred in failing to adequately explain Cornette’s sentence.\\n\\nUnited States v. Cornette, 396 F. App’x 8, 8 (4th Cir. 2010). On remand, Cornette\\n\\nchallenged his ACCA enhancement but withdrew the challenge prior to resentencing. On\\n\\nresentencing, the district court once again sentenced Cornette to 220 months\\n\\nimprisonment. A review of that resentencing reveals that the district court did not specify\\n\\nwhether it relied on the ACCA’s enumerated clause, which includes “burglary” as a\\n\\nqualifying violent felony, or the residual clause in finding that Cornette qualified for the\\n\\nACCA enhancement.\\n\\n In 2012, Cornette filed his first motion under 28 U.S.C. § 2255 alleging ineffective\\n\\nassistance of counsel. The district court denied Cornette’s motion and denied a certificate\\n\\nof appealability. After the Supreme Court’s decision in Johnson ruling the residual\\n\\nclause of the ACCA void for vagueness, Cornette filed a second § 2255 motion arguing\\n\\nthat he was no longer an armed career criminal. The district court dismissed this as an\\n\\nunauthorized second and successive § 2255. We granted a motion authorizing Cornette\\n\\nto file a second and successive § 2255. Cornette then filed a § 2255 motion, once again\\n\\narguing that he no longer qualified as an armed career criminal under Johnson because\\n\\n(1) his 1976 Georgia burglary conviction no longer qualified as a predicate offense for\\n\\nACCA purposes under the remaining force or enumerated clauses of ACCA and (2) his\\n\\nNorth Carolina controlled substance convictions did not qualify as ACCA predicates in\\n\\n\\n\\n\\n 3\\n\\flight of our decisions in United States v. Newbold, 791 F.3d 455 (4th Cir. 2015), and\\n\\nUnited States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc).\\n\\n The district court denied Cornette’s motion, this time on the merits, finding that\\n\\nCornette’s sentence was proper because his Georgia burglary convictions met the\\n\\nelements of generic burglary under § 924(e)(2)(B)(ii). This appeal followed.\\n\\n\\n\\n II.\\n\\n Whether an offense constitutes a “violent felony” under the ACCA is a question of\\n\\nlaw that we review de novo. See United States v. White, 571 F.3d 365, 367 (4th Cir.\\n\\n2009).\\n\\n\\n\\n III.\\n\\n We begin with an overview of the post-Johnson ACCA landscape. Second, we\\n\\naddress why the appeal waiver in Cornette’s plea agreement does not bar us from\\n\\nreaching the merits of his ACCA claims. Third, we determine that Cornette’s 1976\\n\\nGeorgia burglary conviction does not qualify as a violent crime under the ACCA.\\n\\nFinally, we hold that Cornette’s North Carolina controlled substance convictions do not\\n\\nqualify as serious drug offenses under the ACCA. Accordingly, we grant Cornette’s\\n\\n§ 2255 motion and remand for resentencing.\\n\\n A.\\n\\n Under the ACCA, a person who is convicted of being a felon in possession of a\\n\\nfirearm and who “has three previous convictions . . . for a violent felony or a serious drug\\n\\n\\n 4\\n\\foffense . . . committed on occasions different from one another . . . shall be . . .\\n\\nimprisoned not less than fifteen years[.]” 18 U.S.C. § 924(e)(1). The statute defines\\n\\n“violent felony” as:\\n\\n any crime punishable by imprisonment for a term exceeding one year . . .\\n that . . . (i) has as an element the use, attempted use, or threatened use of\\n physical force against the person of another; or (ii) is burglary, arson, or\\n extortion, involves use of explosives, or otherwise involves conduct that\\n presents a serious potential risk of physical injury to another[.]\\n\\n18 U.S.C. § 924(e)(2)(B). The first part of subsection (ii) is referred to as the\\n\\n“enumerated offenses” clause, while the phrase “otherwise involves conduct that presents\\n\\na serious potential risk of physical injury to another” is known as the “residual clause.”\\n\\nJohnson, 135 S. Ct. at 2555–57. In Johnson, the Supreme Court held that the residual\\n\\nclause was unconstitutionally void for vagueness but that its “decision [did] not call into\\n\\nquestion application of the [ACCA] to the four enumerated offenses, or the remainder of\\n\\nthe Act’s definition of a violent felony.” Id. at 2563.\\n\\n In Welch v. United States, the Supreme Court held that Johnson was a substantive\\n\\nrule that applied retroactively on collateral review, as it “narrow[ed] the scope of [the\\n\\nACCA] by interpreting its terms,” and was also a “constitutional determination[] that\\n\\nplace[d] particular conduct or persons covered by the statute beyond the State’s power to\\n\\npunish.” 136 S.Ct. 1257, 1265 (2016) (internal citation and quotation marks omitted).\\n\\nWelch made clear that the residual clause of the ACCA “can no longer mandate or\\n\\nauthorize any sentence,” and that the substantive rule announced in Johnson “change[d]\\n\\nthe scope of the underlying criminal proscription” because there was a “significant risk\\n\\n\\n\\n\\n 5\\n\\fthat a defendant stands convicted of an act that the law does not make criminal.” Id. at\\n\\n1265–66 (internal citation and quotation marks omitted).\\n\\n The statutory landscape as it stands today is that a defendant’s prior conviction can\\n\\nstill qualify as a “violent felony” only under the force clause or the enumerated clause of\\n\\nthe ACCA. The record of Cornette’s sentencing is unclear as to which clause of the\\n\\nACCA—or even what predicate convictions—the district court relied upon in sentencing\\n\\nhim. That is, in announcing its original sentence, the sentencing court stated only that it\\n\\noverruled all of Cornette’s objections to the PSR and determined that the final offense\\n\\nlevel of 32 was “correct as stated in the Presentence Investigation Report and adopted by\\n\\nthe Court.” J.A. 28. Upon remand and resentencing, the sentencing court stated only that\\n\\nthe total offense level of 32 and the criminal history category of VI made the applicable\\n\\nguideline range 210 to 262 months. J.A. 54. There was no discussion of any of the\\n\\nACCA’s clauses in either sentencing.\\n\\n The government contends that the record does not establish that Cornette was\\n\\nsentenced under the residual clause such that Cornette cannot present any Johnson II-\\n\\nbased challenge to his sentence. But under United States v. Winston, 850 F.3d 677 (4th\\n\\nCir. 2017), we are to read this equivocation in the record in Cornette’s favor. We\\n\\nrecently reaffirmed this reasoning, stating that “a Johnson II-based § 2255 motion relies\\n\\non a new rule of constitutional law . . . when the petitioner’s ACCA-enhanced sentence\\n\\n‘may have been predicated on application of the now-void residual clause.’” United\\n\\nStates v. Hodge, 902 F.3d 420, 426 (4th Cir. 2018) (citing Winston, 850 F.3d at 682). In\\n\\nother words, we “will not penalize a movant for a court’s discretionary choice not to\\n\\n\\n 6\\n\\fspecify under which clause of Section 924(e)(2)(B) an offense qualified as a violent\\n\\nfelony.” Winston, 850 F.3d at 682. Since it is not clear one way or the other, we assume\\n\\nfor purposes of this appeal that Cornette was sentenced under the ACCA’s residual\\n\\nclause.\\n\\n\\n\\n B.\\n\\n We now turn to whether Cornette’s appeal waiver bars us from considering the\\n\\nmerits of his ACCA petition for relief. We hold that it does not under the circumstances\\n\\nof this case.\\n\\n Cornette’s plea agreement waived his right to appeal from errors in the sentence\\n\\nimposed against him, except for claims of ineffective assistance of counsel and\\n\\nprosecutorial misconduct. Cornette concedes that the claim he presses here is neither an\\n\\nineffective assistance of counsel nor a prosecutorial misconduct claim. But Cornette\\n\\ncontends that his otherwise valid appeal waiver does not bar him from now arguing that\\n\\nby imposing a sentence under the now unconstitutional residual clause of the ACCA, the\\n\\ndistrict court exceeded its statutory authority to sentence him. Cornette’s argument finds\\n\\nsupport in the precedent of this Court.\\n\\n In United States v. Marin, we held that “a defendant who waives his right to an\\n\\nappeal does not subject himself to being sentenced entirely at the whim of the district\\n\\ncourt.” 961 F.2d 493, 496 (4th Cir. 1993). An appeal waiver does not preclude a\\n\\ndefendant from challenging a sentence “based on a constitutionally impermissible factor”\\n\\nor “a sentence imposed in excess of the maximum penalty provided by statute.” Id.; see\\n\\n\\n 7\\n\\falso Garza v. Idaho, 139 S.Ct. 738, 745 n.6 (2019) (recognizing that lower courts have\\n\\napplied exceptions to appeal waivers for claims “that a sentence . . . exceeds the statutory\\n\\nmaximum authorized”); United States v. Cohen, 888 F.3d 667, 683 (4th Cir. 2018)\\n\\n(reiterating that “an appeal waiver does not preclude . . . challenges that a sentence\\n\\nexceeds a statutory maximum or is based upon a constitutionally infirm factor”); United\\n\\nStates v. General, 278 F.3d 389, 399 (4th Cir. 2002) (acknowledging that “arguments\\n\\ncontending that sentence was imposed upon constitutionally impermissible factors or that\\n\\nsentence exceeds the statutory maximum are not barred by contractual waivers.”).\\n\\n We subsequently applied Marin to the question of whether an appeal waiver\\n\\nbarred a defendant from challenging a district court’s restitution order that exceeded the\\n\\nstatutorily authorized punishment for a defendant’s underlying conviction. United States\\n\\nv. Broughton-Jones, 71 F.3d 1143, 1147 (4th Cir. 1995). It does not. Id. (“Because a\\n\\nrestitution order imposed when it is not authorized by [statute] is no less ‘illegal’ than a\\n\\nsentence of imprisonment that exceeds the statutory maximum, appeals challenging the\\n\\nlegality of restitution orders are similarly outside the scope of a defendant’s otherwise\\n\\nvalid appeal waiver.”). Cornette’s challenge to his sentence is likewise predicated on the\\n\\nassertion that the district court did not have the statutory authority to impose the sentence\\n\\nit did (here, under the residual clause, rather than the restitution statute), and so Marin\\n\\nand Broughton-Jones support his contention.\\n\\n Cornette’s argument can be simplified to the following: (1) Johnson struck the\\n\\nresidual clause of the ACCA as unconstitutional; (2) Welch made Johnson retroactive; (3)\\n\\nhe was sentenced pursuant to ACCA’s residual clause; and (4) because Welch made\\n\\n\\n 8\\n\\fJohnson retroactive and he was sentenced pursuant to the ACCA’s residual clause, the\\n\\ndistrict court had the statutory authority at the first sentencing to impose a sentence\\n\\ncontaining a sentence enhancement under the residual clause of the ACCA but is now\\n\\ndeemed not to have had that authority. There is no dispute about the first two\\n\\npropositions. And as we discussed previously, we do not agree with the government’s\\n\\nargument about the third proposition that the original sentencing judge did not rely upon\\n\\nthe residual clause in sentencing Cornette, and that Cornette could not claim relief based\\n\\non Johnson. The only remaining issue, therefore, is whether the district court is now\\n\\ndeemed to have had the statutory authority to impose the sentence. It did not. The\\n\\ndistrict court sentenced Cornette pursuant to the residual clause. Welch made Johnson\\n\\nretroactive, and so all sentences rendered under the residual clause became\\n\\nunconstitutional. Therefore, Cornette’s sentence was imposed “in excess of the\\n\\nmaximum penalty provided by [ACCA],” Marin, 961 F.2d at 496, and the appeal waiver\\n\\ndoes not bar Cornette’s Johnson claim.\\n\\n To be clear, this does not mean that a subsequent change in sentencing law renders\\n\\nan otherwise valid appeal waiver invalid. Our own precedent establishes that when a\\n\\nsentencing law undergoes a non-retroactive change, a defendant who waived his right to\\n\\nappeal a sentence imposed under the old regime remains bound by that waiver even if\\n\\nresentencing under the new regime might otherwise entitle him to new rights or subject\\n\\nhim to different penalties. In United States v. Blick, 408 F.3d 162, 170 (4th Cir. 2005),\\n\\nwe rejected a defendant’s claim that he should be resentenced in light of the advisory\\n\\nGuidelines regime announced in United States v. Booker, 543 U.S. 220 (2005), reasoning\\n\\n\\n 9\\n\\fthat “[p]lea bargains rest on contractual principles” and so a party “cannot . . . ask to re-\\n\\nbargain the waiver of his right to appeal because of changes in the law.” Furthermore,\\n\\nthe defendant’s sentence was within the statutory maximum. We examined this issue\\n\\nagain in United States v. Archie, 771 F.3d 217 (4th Cir. 2014) (Agee, J.), where the\\n\\nappellant levied a challenge based on the new right created by the Supreme Court in\\n\\nAlleyne v. United States, 570 U.S. 99 (2013) that “any fact that increases the mandatory\\n\\nminimum is an ‘element’ that must be submitted to the jury.” Yet, the Supreme Court did\\n\\nnot make Alleyne retroactive. Thus, in Archie, we held that a “post-sentencing change in\\n\\nthe law does not void” an appeal waiver, reasoning that if we declined to enforce an\\n\\nappeal waiver because of a subsequent change in the law “we would deprive the\\n\\nGovernment of the benefit of its bargain and frustrate the purpose underlying such\\n\\ncontracts.” Id. at 222.\\n\\n Both Alleyne and Booker created a new prospective procedural right within the\\n\\ncontext of sentencing. But they did not do what Johnson does, which is to strike the\\n\\nstatutory provision under which a defendant was sentenced as unconstitutional, thus\\n\\nremoving the district court’s statutory authorization to sentence altogether. Yet Johnson\\n\\nalone would give Cornette no relief. Only with the addition of Welch does Cornette have\\n\\na viable claim.\\n\\n Unlike the substantive rule that the Supreme Court announced in Johnson and\\n\\nmade retroactive in Welch, the Supreme Court never made the procedural rules in Alleyne\\n\\nand Booker retroactive. Accordingly, in Blick and Archie we were considering sentences\\n\\nthat were still permissible at the time they were imposed. Welch makes clear that\\n\\n\\n 10\\n\\fsentences imposed under the residual clause of the ACCA are impermissible because\\n\\nevery person in the “class of persons” sentenced under the residual clause is one\\n\\n“convicted of conduct the law does not make criminal.” 136 S. Ct. at 1265 (internal\\n\\ncitation and quotation marks omitted). A defendant such as Cornette who “does not\\n\\nconstitute an armed career criminal . . . [has] received a punishment that the law cannot\\n\\nimpose upon him.” United States v. Shipp, 589 F.3d 1084, 1091 (10th Cir. 2009)\\n\\n(internal quotation marks omitted) (citing Schriro v. Summerlin, 542 U.S. 348, 352\\n\\n(2004)).\\n\\n In sum, because the residual clause was struck from the ACCA in Johnson and the\\n\\nSupreme Court determined in Welch that Johnson announced a substantive rule that\\n\\napplied retroactively, the district court is now deemed to have had no statutory authority\\n\\nto impose Cornette’s sentence under the residual clause of the ACCA. Accordingly, we\\n\\nmay review Cornette’s sentencing challenge notwithstanding the appeal waiver.\\n\\n\\n\\n C.\\n\\n We turn now to the merits of Cornette’s ACCA arguments. Cornette contends that\\n\\nhis 1976 conviction for Georgia felony burglary is not categorically a violent felony\\n\\nbecause both the unlawful entry and location elements of Georgia burglary are overbroad\\n\\nwhen compared to the corresponding elements of generic burglary under the enumerated\\n\\n\\n\\n\\n 11\\n\\fclause of the ACCA. 1 We first determine that the Georgia burglary statute under which\\n\\nCornette was convicted is indivisible, requiring application of the categorical approach.\\n\\nWe next apply the categorical approach to determine whether Cornette’s conviction\\n\\nqualifies as an ACCA predicate. We conclude that it does not.\\n\\n\\n\\n 1.\\n\\n We must first determine whether Georgia’s burglary statute at the time of\\n\\nCornette’s 1976 conviction is divisible or indivisible. If Georgia’s definition of burglary\\n\\nis divisible, we use the modified categorial approach to determine whether it qualifies as\\n\\nan ACCA predicate. United States v. Hemingway, 734 F.3d 323, 331 (4th Cir. 2013).\\n\\nThe modified categorical approach permits us to consult certain court records—such as\\n\\ncharging documents, plea agreements, transcripts of plea colloquies, judicial findings of\\n\\nfact and conclusions of law, jury instructions, and verdict forms—to determine whether\\n\\nthe conduct underlying the defendant’s conviction fits the mold of an ACCA predicate.\\n\\nShepard v. United States, 544 U.S. 13, 26 (2005). But if Georgia’s definition of burglary\\n\\nis not divisible, we use the categorical approach and restrict our analysis to the fact of the\\n\\nconviction itself, taking no account of the actual conduct on which the conviction is\\n\\nbased. Hemingway, 734 F.3d at 332. We conclude that Georgia’s definition of burglary\\n\\nis not divisible, making the categorical approach appropriate.\\n\\n\\n1\\n There is no real question that Georgia felony burglary does not qualify as a violent\\nfelony under the force clause of the ACCA—a person may commit burglary by entering\\n“without authority.” The Government makes no argument to the contrary.\\n\\n\\n 12\\n\\f We determine whether a statute is divisible based on whether the statute contains\\n\\n“multiple alternative elements (thus creating multiple versions of a crime)” such that it is\\n\\ndivisible or “multiple alternative means (of committing the same crime)” such that it is\\n\\nindivisible. Omargharib v. Holder, 775 F.3d 192, 198 (4th Cir. 2014) (emphasis in\\n\\noriginal). Under Mathis v. United States, the text of the statute and controlling state law\\n\\nare starting points for answering this question. 136 S. Ct. 2243 (2016).\\n\\n The first question before us, then, is whether the text of the statute of Cornette’s\\n\\nconviction suggests that the offense is divisible. The 1968 Georgia burglary statute under\\n\\nwhich Cornette was convicted reaches any person who “without authority and with the\\n\\nintent to commit a felony . . . enters or remains within . . . any building, vehicle, railroad\\n\\ncar, watercraft, or other such structure designed for use as the dwelling of another, or\\n\\nenters or remains within any other building or any room or any part thereof.” Ga. Code §\\n\\n26-1601 (1968). We must therefore determine whether the statute creates (a) separate\\n\\ncrimes of burglary that differ based on the type of location entered—e.g., burglary of a\\n\\nbuilding, burglary of a watercraft, burglary of a structure designed for use as a dwelling,\\n\\nand so on—or (b) a single crime of burglary that requires, as one element, entry into any\\n\\nof several different types of location.\\n\\n As a threshold matter, the statute does set forth a disjunctive list of types of\\n\\nlocations that may be burgled. See United States v. Fuertes, 805 F.3d 485, 498 (4th Cir.\\n\\n2015). While the statute’s disjunctive language sets up a divisibility question, it does not\\n\\nanswer it. Id. (“[M]ere use of the disjunctive ‘or’ in the definition of a crime does not\\n\\nautomatically render it divisible.”); United States v. Royal, 731 F.2d 333, 340 (4th Cir.\\n\\n\\n 13\\n\\f2013) (holding that similarly disjunctive jury instructions were compatible with an\\n\\nindivisible offense). Instead, we consider whether the statute’s language describes\\n\\n“statutory alternatives” indicating different crimes or mere “illustrative examples”\\n\\nreferring only to a crime’s means of commission. Mathis, 136 S. Ct. at 2256.\\n\\n Here, the language of the Georgia burglary statute suggests a single crime of\\n\\nburglary while spelling out various factual ways to fulfill the location element of the\\n\\noffense. That is, the “illustrative examples” in the statute of burgling a watercraft or\\n\\nrailroad car refer only to the means of commission. Id. Additionally, the statute does not\\n\\ncontain different penalties based on the type of location burgled and does not require\\n\\nprosecutors to charge the type of location burgled. Therefore, the statute’s language\\n\\nsuggests that it consists of alternative means as opposed to alternative elements.\\n\\n Controlling state court decisions confirm that the statute contains alternative\\n\\nmeans. How state courts treat jury instructions, in particular, can be instructive on\\n\\nwhether a statute lists means or elements. In Omargharib, we explained that elements of\\n\\na crime, as opposed to means, are factual circumstances of the offense that the jury must\\n\\nfind “unanimously and beyond a reasonable doubt.” 775 F.3d at 198 (internal citation\\n\\nand quotation marks omitted). As relevant here, Georgia courts have repeatedly upheld\\n\\njury instructions where a jury was entitled to find entry into either a “dwelling house or\\n\\nbuilding,” with no unanimity requirement on those alternatives. In Hart v. State, the\\n\\nGeorgia Supreme Court held that such a jury instruction was “sufficient to inform the\\n\\njury of the essential elements of the offense.” 517 S.E.2d 790, 793 (Ga. Ct. App. 1999).\\n\\nSignificantly, the indictment in Hart charged entry into a “dwelling house,” a term used\\n\\n\\n 14\\n\\fin the burglary statute, but the jury was not required to agree that the location burgled\\n\\nwas indeed a “dwelling house.” Id. at 792; see also Long v. State, 705 S.E.2d 889 (Ga.\\n\\nCt. App. 2011) (upholding jury instruction with identical location element as “complete\\n\\nand correct”). The lack of a jury unanimity requirement on the type of location burgled\\n\\nindicates that burglary includes multiple alternative means as opposed to elements, and so\\n\\nis an indivisible offense.\\n\\n While Georgia law does require prosecutors to charge “the specific location”\\n\\nburgled, see Morris v. State, 303 S.E.2d 492, 494 (Ga. Ct. App. 1983) (stating that an\\n\\nindictment “must specify the location of the burglary” in order “to give the defendant\\n\\nample opportunity to prepare a defense”), there is no analogous requirement that\\n\\nprosecutors charge or prove the type of location burgled. In State v. Green, 218 S.E.2d\\n\\n456, 457 (Ga. 1975), the Georgia Supreme Court dismissed an indictment charging a\\n\\ndefendant with entering “a building” because its failure to specify “the location of the\\n\\nbuilding in question” deprived the defendant of required notice. If the “specific location”\\n\\nrequirement pertained to the elements of the offense, the indictment in Green would have\\n\\nbeen adequate. Conversely, the Georgia Court of Appeals in Mobley v. State, 296 S.E.2d\\n\\n154, 154 (Ga. Ct. App. 1982), upheld an indictment that charged a defendant with\\n\\nburgling the “Social Circle Drug Store,” even though it made no reference to a specific\\n\\nlocation type stated in the burglary statute. Therefore, we conclude that this rule pertains\\n\\nto the address of the location burgled as opposed to the type of location burgled.\\n\\n Resisting this conclusion, the government points to DeFrancis v. Manning, 271\\n\\nS.E.2d 209 (Ga. 1980), in which the Georgia Supreme Court held an indictment to be\\n\\n\\n 15\\n\\flegally defective because it charged burglary of a car without alleging that the car was\\n\\ndesigned for use as a dwelling. The government’s reliance on DeFrancis is misplaced.\\n\\nAll DeFrancis tells us is that burglary requires a dwelling. It does not tell us that the\\n\\nparticular type of dwelling must be specified in the indictment. And it certainly does not\\n\\nrequire the jury to agree on the type of dwelling alleged to have been burgled. See\\n\\nRichardson v. United States, 890 F.3d 616, 624 (6th Cir. 2018) (finding that DeFrancis\\n\\ndoes not bear on the divisibility inquiry).\\n\\n To summarize, both the text of the Georgia burglary statute in effect at the time of\\n\\nCornette’s conviction and controlling state law indicate that burglary is a single,\\n\\nindivisible crime: the statutory text contains only alternative means of committing\\n\\nburglary and state court precedent indicates that there is no requirement that a jury must\\n\\nunanimously agree on the type of location that is burgled. Accordingly, the statute is\\n\\nindivisible, and we apply the categorical approach. 2\\n\\n\\n 2\\n We recognize that our conclusion puts us at odds with the Eleventh Circuit’s\\ndecision in United States v. Gundy, 842 F.3d 1156 (11th Cir. 2016), and the Sixth\\nCircuit’s decision in Richardson v. United States, 890 F.3d 616 (6th Cir. 2018).\\nRespectfully, we do not find the reasoning of our sister circuits persuasive.\\n The Eleventh Circuit relied on the text of the Georgia statute, the fact that “under\\nGeorgia law a prosecutor must select, identify, and charge the specific place or location\\nthat was burgled,” and the defendant’s indictment to find the statute divisible. Gundy,\\n842 F.3d at 1167. However, the inclusion of a “disjunctive list” in a criminal statute is\\nnot probative of divisibility and Georgia’s requirement that prosecutors charge a “specific\\nlocation” means just that the prosecutor must include the address of the location burgled\\nto pass statutory muster and does not indicate that the statute itself sets forth alternative\\ncrimes based on the type of location.\\n The Sixth Circuit found the statute divisible because the defendant’s indictments\\nstated the location types enumerated in the Georgia statute. Richardson, 890 F.3d at 629.\\nBut even if Georgia caselaw is ambiguous enough to allow a reviewing court to consider\\n(Continued)\\n\\n\\n 16\\n\\f 2.\\n\\n Utilizing the categorical approach, we move to whether, at the time of Cornette’s\\n\\nconviction in 1976, the definition of burglary in the Georgia burglary statute criminalized\\n\\nmore conduct than ACCA generic burglary. See McNeill v. United States, 563 U.S. 816,\\n\\n820 (2011) (court applying ACCA must conduct “backward-looking” inquiry into prior\\n\\nconvictions, meaning that court must “consult the law that applied at the time of th[ose]\\n\\nconviction[s]”); see also Rivera v. United States, 716 F.3d 685, 688 (2d Cir. 2013)\\n\\n(“Whether a prior conviction qualifies as a predicate felony for the ACCA sentencing\\n\\nenhancement is determined by looking to state law existing at the time of that\\n\\nconviction.”). We hold that it did.\\n\\n Let us start with the generic definition of burglary. In United States v. Stitt, the\\n\\nSupreme Court held that generic burglary under the enumerated clause of the ACCA is\\n\\n“an unlawful or unprivileged entry into, or remaining in, a building or other structure,\\n\\nwith intent to commit a crime.” 139 S. Ct. 399, 405–06 (2018) (citing Taylor v. United\\n\\nStates, 495 U.S. 575, 598 (1990)). This definition includes entry into vehicles “adapted\\n\\nor customarily used for lodging.” Id. at 406.\\n\\n\\n\\n\\nan individual defendant’s indictment as authorized under Mathis, that “peek” is for the\\n“sole and limited purpose of determining whether [alternatives] are elements of the\\noffense.” 136 S. Ct. at 2257. As the Georgia Supreme Court reasoned in Hart, even an\\nindictment that includes a specific type of statutory location cannot establish that the\\nlocation type is an element of the charged offense because a jury could properly have\\nbeen instructed with finding entry into either a “dwelling house or building.” 517 S.E.2d\\nat 793. Accordingly, the Richardson court’s reliance on the specific indictments of the\\ndefendant to conclude that the type of location is an element of burglary was misplaced.\\n\\n\\n 17\\n\\f At the time of Cornette’s conviction, Georgia’s definition of burglary was broader\\n\\nthan the generic definition. The statute defining burglary reads as follows:\\n\\n A person commits burglary when, without authority and with the intent to\\n commit a felony or theft therein, he enters or remains within the dwelling\\n house of another, or any building, vehicle, railroad car, aircraft, watercraft,\\n or other such structure designed for use as the dwelling of another, or enters\\n or remains within any other building or any room or any part thereof. A\\n person convicted of burglary shall be punished by imprisonment for not\\n less than one nor more than 20 years.\\n\\nGa. Code § 26-1601 (1968). Facially, this definition of burglary appears to conform to\\n\\nStitt’s generic definition: it criminalizes entry into vehicles only if they are “designed for\\n\\nuse as the dwelling of another.” Id. But our reading of the statute’s language does not\\n\\ncontrol. Instead, we must defer to the interpretation of the statute employed by Georgia\\n\\ncourts at the time of Cornette’s conviction, in 1976. And at the time of Cornette’s\\n\\nconviction, Georgia’s intermediate appellate court had held that the state’s definition of\\n\\nburglary included entry into “any . . . vehicle,” regardless of whether it was designed for\\n\\nuse as a dwelling. Hayes, 186 S.E.2d at 436. Thus, when Cornette was convicted,\\n\\nGeorgia’s definition of burglary criminalized a broader range of conduct than the generic\\n\\ndefinition of burglary we use for ACCA purposes.\\n\\n The government argues that Hayes has no bearing on our analysis because it was\\n\\nissued by an intermediate appellate court, rather than by Georgia’s highest court.\\n\\nAccording to the government, instead of looking to Hayes, we should turn our attention\\n\\nto Massey v. State, 234 S.E.2d 144 (Ga. 1977). In Massey, the Supreme Court of Georgia\\n\\nrejected Hayes, holding that “the clear intent of [the Georgia burglary] statute is that for a\\n\\nperson to be guilty of burglary of a vehicle such vehicle must be designed for use as a\\n\\n\\n 18\\n\\fdwelling.” But Massey was not decided until 1977, whereas Cornette was convicted in\\n\\n1976. At the time of Cornette’s conviction, Hayes had been decided and Massey had not.\\n\\nThat being so, we consider Hayes to be the binding interpretation of Georgia law at the\\n\\ntime of Cornette’s conviction. Indeed, when confronting matters of state law that have\\n\\nnot yet been decided by the state’s high court, we typically turn to the state’s intermediate\\n\\nappellate courts. See Assicurazioni Generali, S.p.A. v. Neil, 160 F.3d 997, 1002 (4th Cir.\\n\\n1998) (citing West v. AT & T Co., 311 U.S. 223, 237 (1940)). Nothing more is called for\\n\\nhere. In 1976, the crime of burglary in Georgia reached more conduct than the generic\\n\\ncrime of burglary enumerated in the ACCA; therefore, Cornette’s burglary conviction is\\n\\nnot a “violent felony” for purposes of the ACCA sentencing enhancement. 3\\n\\n Additionally, the government calls our attention to DeFrancis, 271 S.E.2d 209, in\\n\\nwhich the Supreme Court of Georgia granted habeas relief to a petitioner who had been\\n\\nconvicted of burglary in 1974 but whose indictment was deficient under the post-Massey\\n\\ninterpretation of the burglary statute. DeFrancis does not affect our analysis. The\\n\\ninquiry into whether state law at the time of conviction “covers more conduct” than the\\n\\ngeneric offense does not anticipate a separate inquiry into whether some convicted\\n\\ndefendants later accrued a claim to habeas relief, as happened with the habeas petitioner\\n\\nin DeFrancis. Mathis, 136 S. Ct. at 2250. This approach comports with other circuits\\n\\nthat have considered the question. See, e.g., United States v. Faust, 853 F.3d 39, 58 (1st\\n\\nCir. 2017) (declining to consider subsequent judicial interpretations of an unchanged\\n\\n3\\n Based on our holding, we need not consider Cornette’s additional argument that the\\nunlawful entry element of Georgia burglary is broader than generic burglary.\\n\\n\\n 19\\n\\fstatute for purposes of applying the categorical approach under the ACCA); United States\\n\\nv. Roblero-Ramirez, 716 F.3d 1122 (8th Cir. 2013) (looking to highest state court caselaw\\n\\nat the time of defendant’s state court conviction to determine that Nebraska sudden\\n\\nquarrel manslaughter was not a “crime of violence” under the Sentencing Guidelines,\\n\\neven where Nebraska Supreme Court later held that manslaughter required intent, as\\n\\n“[t]hat interpretation was not Nebraska law when Roblero-Ramirez was convicted.”).\\n\\n Therefore, Massey and DeFrancis do not disturb our conclusion that at the time of\\n\\nCornette’s conviction, the highest Georgia state court to interpret the location element of\\n\\nthe Georgia burglary statute held that it covered entry into “any . . . vehicle.” Hayes, 186\\n\\nS.E.2d at 436. Thus, the Georgia burglary statute, as construed by the applicable Georgia\\n\\ncourt at the time of Cornette’s conviction, is overbroad compared to the generic burglary\\n\\ncrime in the enumerated clause of the ACCA, and Cornette’s 1976 burglary conviction is\\n\\ntherefore not a “violent felony” for purposes of the ACCA sentencing enhancement.\\n\\n\\n\\n D.\\n\\n Having determined that Cornette’s burglary conviction no longer qualifies as a\\n\\nviolent felony, we move to whether Cornette’s 1984 North Carolina controlled substance\\n\\nconvictions qualify as ACCA predicates. Cornette contends that in light of our decisions\\n\\nin United States v. Newbold, 791 F.3d 455 (4th Cir. 2015), and United States v. Simmons,\\n\\n\\n\\n\\n 20\\n\\f649 F.3d 237 (4th Cir. 2011) (en banc), these convictions no longer qualify as ACCA\\n\\npredicates. We agree. 4\\n\\n In Newbold, we applied Simmons to determine whether a 1984 North Carolina\\n\\nconviction imposed under the Fair Sentencing Act qualified as a serious drug offense for\\n\\npurposes of § 924(e)(2)(A). 791 F.3d at 463. We looked to the presumptive sentence\\n\\nthat the offense carried and whether the defendant’s state court judgment had\\n\\n“aggravating factors supporting a sentence within the aggravated range,” that is, a\\n\\nsentence above the presumptive sentence. Id. There, the judgment did not state any\\n\\naggravating factors found by the sentencing judge, and there was no evidence found in\\n\\nthe plea transcript to support an admission of aggravating factors, and so we held that\\n\\nNewbold’s conviction did not qualify as a serious drug offense because he could not have\\n\\nreceived ten years of imprisonment for the offense without a finding of aggravating\\n\\nfactors. Id. at 461–63.\\n\\n At the time of Cornette’s 1984 conviction, North Carolina also sentenced criminal\\n\\ndefendants under the Fair Sentencing Act. And like the record we examined in Newbold,\\n\\nthe record before us has no finding and recording of aggravating or mitigating factors.\\n\\nCornette’s state court judgment only shows that the presumptive range for his controlled\\n\\nsubstance conviction was three years’ imprisonment and that the maximum term was 10\\n\\n\\n4\\n The district court found that Cornette had not timely challenged his ACCA designation\\nunder Simmons. In doing so, it misapprehended the nature of Cornette’s challenge—at\\nthe time of Simmons, Cornette had three remaining ACCA predicate offenses, and so\\ncould not claim relief under Simmons to argue that his sentence “was in excess of the\\nmaximum authorized by law” under § 2255(a).\\n\\n\\n 21\\n\\fyears. J.A. 95. Under the Fair Sentencing Act, Cornette could not have received 10\\n\\nyears of imprisonment for his North Carolina controlled substance conviction without a\\n\\nfinding of aggravating factors on the record. There is no such finding, and so Cornette’s\\n\\n1984 controlled substance conviction is not a “serious drug offense” as is necessary to\\n\\nqualify as an ACCA predicate.\\n\\n\\n\\n IV.\\n\\n To recap, we hold that: (1) Cornette may appeal his sentence notwithstanding the\\n\\nappeal waiver in his plea agreement; (2) his 1976 Georgia burglary conviction is not a\\n\\n“violent felony” under the ACCA; and (3) his 1984 North Carolina controlled substances\\n\\nconviction is not a “serious drug crime” under the ACCA. Therefore, Cornette does not\\n\\nhave the requisite number of predicate offenses to be designated an armed career criminal\\n\\nunder the ACCA. We therefore grant Cornette’s § 2255 petition and reverse and remand\\n\\nfor resentencing, with instructions for the district court to resentence Cornette without the\\n\\nACCA enhancement.\\n\\n REVERSED AND REMANDED WITH INSTRUCTIONS\\n\\n\\n\\n\\n 22\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2966,"cells":{"id":{"kind":"number","value":4644010,"string":"4,644,010"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee, v. Brandon LOCKE, Defendant - Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Brandon Locke"},"decision_date":{"kind":"string","value":"2019-07-30"},"docket_number":{"kind":"string","value":"18-4367"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Wilkinson, King, Berger, Southern, Virginia\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9889024/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"040dissent\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9889025/\", \"author_raw\": \"\"}, {\"author\": \"WILKINSON, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-4367\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff – Appellee,\\n\\n v.\\n\\nBRANDON LOCKE,\\n\\n Defendant – Appellant.\\n\\n\\n\\nAppeal from the United States District Court for the Eastern District of Virginia, at\\nAlexandria. T.S. Ellis, III, Senior District Judge. (1:17-cr-00210-TSE-1)\\n\\n\\nArgued: May 9, 2019 Decided: July 30, 2019\\n\\n\\nBefore WILKINSON and KING, Circuit Judges, and Irene C. BERGER, United States\\nDistrict Judge for the Southern District of West Virginia, sitting by designation.\\n\\n\\nAffirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge King\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4421263/\", \"author_raw\": \"WILKINSON, Circuit Judge:\"}, {\"author\": \"joined. Judge Berger wrote a dissenting\", \"type\": \"dissent\", \"text\": \"joined. Judge Berger wrote a dissenting opinion.\\n\\n\\nARGUED: Mark Bodner, Fairfax, Virginia, for Appellant. Jessica Lynne Urban, OFFICE\\nOF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON\\nBRIEF: G. Zach Terwilliger, United States Attorney, Maya D. Song, Assistant United\\nStates Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia,\\nfor Appellee.\\n\\nWILKINSON, Circuit Judge:\\n\\n Brandon Locke, appellant here, seeks to attack the use of a Virginia conviction for\\n\\na misdemeanor crime of domestic violence (MCDV) as a predicate for his gun charge under\\n\\n18 U.S.C. § 922(g)(9). 1 Locke argues that, in pleading guilty to the MCDV, he did not\\n\\n“knowingly and intelligently” waive his right to a jury trial as required by the statute. 18\\n\\nU.S.C. § 921(a)(33)(B)(i)[a](II)(bb). The District Court rejected his contention and, for the\\n\\nreasons that follow, we affirm.\\n\\n I.\\n\\n Locke was charged with violating 18 U.S.C. § 922(g)(9), which prohibits anyone\\n\\n“who has been convicted in any court of a misdemeanor crime of domestic violence\\n\\n[MCDV],” from possessing a firearm. In enacting § 922(g)(9), Congress recognized that\\n\\n“[f]irearms and domestic strife are a potentially deadly combination,” United States v.\\n\\nCastleman, 572 U.S. 157, 159 (2014) (citation omitted). Congress also recognized that the\\n\\nexisting law at the time—which prohibited firearm possession by those convicted of a\\n\\nfelony—did little to protect victims of domestic abuse, since “many perpetrators of\\n\\ndomestic violence are charged with misdemeanors rather than felonies, notwithstanding\\n\\nthe harmfulness of their conduct.” Voisine v. United States, 136 S.Ct 2272, 2276 (2016).\\n\\nCongress therefore sought to close this “dangerous loophole” and keep guns out of the\\n\\n\\n\\n\\n 1\\n Locke also attacks the use of a similar Georgia conviction as a predicate. Since 18\\nU.S.C. § 922(g)(9) only requires one predicate offense, and since we find that his Virginia\\nconviction is a valid predicate, we do not reach issues relating to the Georgia offense.\\n\\n 2\\n\\nhands of those who might use them to victimize their families or households. Id. (citation\\n\\nomitted).\\n\\n Locke does not dispute here that, when he was arrested by federal agents in August\\n\\n2017, he possessed a firearm. Nor does he dispute that, some months before his arrest, he\\n\\nhad pleaded guilty to assault and battery against a family or household member in violation\\n\\nof Virginia Code § 18.2-57.2, in the Juvenile and Domestic Relations (JDR) District Court\\n\\nof Stafford County. He does not dispute either that this conviction would ordinarily serve\\n\\nas a predicate offense under § 922(g)(9). Rather, Locke’s argument is based on 18 U.S.C.\\n\\n§ 921(a)(33)(B)(i)(II)(bb), which states that a\\n\\n person shall not be considered to have been convicted of [an MCDV], unless, in\\n the case of a prosecution for an offense described in this paragraph for which a\\n person was entitled to a jury trial in the jurisdiction in which the case was tried,\\n […] the person knowingly and intelligently waived the right to have the case tried\\n by a jury, by guilty plea or otherwise.\\n\\nUnder this provision, if a person like Locke was “entitled to a jury trial” to resolve the prior\\n\\nMCDV charge but did not “knowingly and intelligently waive[]” that right, the past offense\\n\\n“shall not be considered” as a predicate under § 922(g)(9).\\n\\n At trial, Locke argued that the Virginia conviction could not be considered a\\n\\npredicate offense under this provision. J.A. 427. He argued that Virginia law entitled him\\n\\nto a jury trial in that proceeding, and that his waiver of that entitlement did not meet the\\n\\n“knowingly and intelligently” standard. Id. In support of that argument, Locke asked the\\n\\ncourt to subpoena Nicholas Kalagian, his lawyer in the Virginia proceeding. According to\\n\\nLocke, Kalagian would testify that the JDR judge did not state that Locke was waiving any\\n\\nright to a trial by jury at the time of his guilty plea. The district court decided not to issue\\n\\n 3\\n\\nthe subpoena, ruling instead that Kalagian’s evidence was irrelevant because Virginia law\\n\\ndid not provide Locke with a right to a jury trial and, therefore, the defense offered by 18\\n\\nU.S.C. § 921(a)(33)(B)(i)[a](II)(bb) was inapplicable. J.A. 140-45; J.A. 429. The district\\n\\ncourt did allow Locke to submit documentary evidence pertaining to his Virginia\\n\\nconviction. Opening Br. at 10.\\n\\n At trial, Locke was found guilty of possessing a firearm after being convicted of an\\n\\nMCDV. Locke appeals, arguing in relevant part that the district judge erred in ruling that\\n\\nthe Virginia MCDV was a proper predicate in light of 18 U.S.C.\\n\\n§ 921(a)(33)(B)(i)[a](II)(bb). Locke’s argument on appeal is first, that he was entitled to a\\n\\njury trial in the Virginia proceeding and second, that he did not properly waive that right.\\n\\nBut we now affirm the District Court because Locke cannot prevail on either step. 2\\n\\n II.\\n\\n The statute found at 18 U.S.C. § 921(a)(33)(B)(i)[a](II)(bb) is only applicable to\\n\\nthose MCDVs that the defendant was entitled to have resolved by a jury trial. Because\\n\\nLocke was not entitled to a jury trial to resolve his Virginia MCDV in the Juvenile and\\n\\nDomestic Relations Court, the statute is inapplicable to him.\\n\\n Locke was charged with assault and battery against a family or household member\\n\\nin violation of Va. Code § 18.2-57.2 in the Stafford County Juvenile and Domestic\\n\\n\\n 2\\n Locke also appeals the district court’s decision to allow various statements made\\nby Locke to the federal agents searching his house. We agree with the district court that\\nthe pre-Miranda questions asked by the agents were necessary to secure their safety, see\\nJ.A. 424E-24F, and that the post-Miranda statements cannot therefore be “fruits” of the\\npoisonous tree, J.A. 424F.\\n\\n 4\\n\\nRelations (JDR) District Court. As Judge Ellis noted, “[u]nder Virginia law, a defendant\\n\\ntried in JDR court has no right to a jury trial; a defendant is entitled to a jury trial for his\\n\\nVirginia MCDV case only if he . . . appeals his conviction to the circuit court.” J.A. 428\\n\\n(citing Va. Sup. Ct. R. 3A:13(a)). Virginia therefore has a “two tiered system for the\\n\\nconduct and disposition of misdemeanor offenses.” Opening Br. at 28. At the first tier,\\n\\nthere is no right to a jury trial. That right only attaches once the defendant takes the\\n\\naffirmative step of appealing to the second tier: “The accused is entitled to a trial by jury\\n\\nonly in a circuit court on a plea of not guilty.” Va. Sup. Ct. R. 3A:13(a) (emphasis added).\\n\\nIn other words, where no appeal to the circuit court is taken, no jury trial is available in\\n\\nVirginia’s JDR court.\\n\\n Locke submitted documents in the District Court that show he was made aware of\\n\\nhis “right to appeal a final order[.]” J.A. 222. Had he made use of this appeal, he would\\n\\nhave had the right to a trial by jury, and 18 U.S.C. § 921(a)(33)(B)(i)(II)(bb) would operate.\\n\\nBut he did not. Instead, he opted to deal with his MCDV on the “first tier,” where there is\\n\\nno right to a jury trial to be had.\\n\\n Virginia’s entirely reasonable decision to provide for the expeditious resolution of\\n\\nmisdemeanors like this assault and battery against a family or household member puts\\n\\nLocke’s conviction squarely outside the category of offenses addressed by 18 U.S.C. §\\n\\n921(a)(33)(B)(i)(II)(bb). He is therefore ineligible for the defense provided by that statute.\\n\\n\\n\\n\\n 5\\n\\nSee also, United States v. Gordon, 264 Fed. App’x 274, 277 (4th Cir. 2008); United States\\n\\nv. Artis, 132 Fed. App’x 483, 484-85 (4th Cir. 2005). 3\\n\\n III.\\n\\n Even assuming the right to a jury trial, Locke’s attack on the use of this prior guilty\\n\\nplea faces yet another obstacle. Guilty pleas are protected by a strong presumption, one\\n\\n“deeply rooted in our jurisprudence”—the presumption of regularity. Parke v. Raley, 506\\n\\nU.S. 20, 29 (1992). This venerable principle holds that guilty pleas are presumed to be\\n\\nvalid. Id. In turn, defendants making valid guilty pleas are understood to be “intelligently\\n\\nand understandingly” giving up their right to a jury trial. Boykin v. Alabama, 395 U.S. 238,\\n\\n242 (1969). Thus, unless Locke can rebut the presumption of regularity that attaches to his\\n\\nguilty plea, he is presumed to have waived his right to trial in a way that satisfies the\\n\\nrequirements of 18 U.S.C. § 921(a)(33)(B)(i)[a](II)(bb).\\n\\n This presumption is “not easily overcome[.]” Wyatt v. United States, 591 F.2d 260,\\n\\n265 (4th Cir. 1979). Its origin lies in one of our legal systems oldest axioms: “that every\\n\\nact of a court of competent jurisdiction shall be presumed to have been rightly done till the\\n\\ncontrary appears.” Voorhees v. Jackson, 35 U.S. 449, 472 (1836). As early as the 19th\\n\\ncentury, there was “no principle of law better settled” than the presumption of regularity.\\n\\nId. The rule has stood the test of time because it vindicates “the interest in promoting the\\n\\nfinality of judgments,” which remains an important consideration. Daniels v. U.S., 532 U.S.\\n\\n\\n 3\\n Because we agree with the district court on this point, there was no error in refusing\\nto subpoena Locke’s lawyer in the Virginia proceeding nor in the failure to explicitly\\n“admit” documentary evidence that shed light on that state court disposition.\\n\\n 6\\n\\n374, 378 (2001). If we allowed the presumption to erode we would be making “[i]nroads\\n\\non the concept of finality,” which would “tend to undermine the confidence in the integrity\\n\\nof our procedures.” U.S. v. Addonizio, 442 U.S. 178, 184, n.11 (1979). “[I]nevitably,” such\\n\\na rule would “delay and impair the orderly administration of justice.” Custis v. U.S., 511\\n\\nU.S. 485, 497 (1994).\\n\\n The presumption has long been understood to shield “every judgment or decree”\\n\\nfrom searching inquiry by later courts. Voorhees v. Jackson, 35 U.S. 449, 472 (1836)\\n\\n(emphasis added). It applies “even when the question is waiver of constitutional rights,”\\n\\nParke, 506 U.S. at 29 (citing Johnson v. Zerbst, 304 U.S. 458, 464, 468 (1938)). But when\\n\\nit comes to guilty pleas, the principle of finality “bear[s] extra weight,” Custis, 511 U.S. at\\n\\n497, and carries “special force[.]” United States v. Timmreck, 441 U.S. 780, 784 (1979).\\n\\nFor this reason, the presumption of regularity protects the finality of guilty pleas in a wide\\n\\nvariety of situations. It applies in habeas corpus actions. See e.g., Parke, 506 U.S. at 29;\\n\\nSpates v. Clarke, 547 Fed. Appx. 289, n. 6 (4th Cir. 2013). It applies to proceedings under\\n\\nthe Armed Career Criminal Act. See e.g., Daniels v. U.S., 532 U.S. 374, 381 (2001); U.S.\\n\\nv. Weston, 681 Fed. Appx. 235, 237 (4th Cir. 2017). It applies under the Sentencing\\n\\nGuidelines. See e.g., U.S. v. Collins, 415 F.3d 304, 315 (4th Cir. 2005); U.S. v. Gray, 177\\n\\nF.3d 86, 90 (1st Cir. 1999). And it applies under statutes like the Comprehensive Drug\\n\\nAbuse Prevention and Control Act of 1970. Parke, 506 U.S. at 33-34.\\n\\n Locke argues that the presumption should not apply to his guilty plea, citing the case\\n\\nof Boykin v. Alabama, 395 U.S. 238 (1969). Opening Br. at 25-26. But Boykin is not the\\n\\napplicable law. The Supreme Court drove this point home in Parke v. Raley. 506 U.S. 20\\n\\n 7\\n\\n(1992). Unlike Boykin, Parke did not involve the direct review of a guilty plea. Rather, the\\n\\ndefendant in Parke argued against the use of a prior conviction based on a guilty plea as a\\n\\npredicate to a recidivist sentencing enhancement. Id. The Court held that “[t]o import\\n\\nBoykin’s presumption of invalidity into this very different context would, in our view,\\n\\nimproperly ignore another presumption deeply rooted in our jurisprudence: the\\n\\n‘presumption of regularity’ that attaches to final judgments, even when the question is\\n\\nwaiver of constitutional rights.” Id. at 29 (citing Johnson v. Zerbst, 304 U.S. 458, 464\\n\\n(1938)). The case before us is in the posture of Parke, not Boykin: Locke is seeking to\\n\\n“deprive [his prior plea] of [its] normal force and effect” as a predicate offense in the instant\\n\\ncase, but this effort runs headlong into the Court’s decision in Parke. Id. at 30. The\\n\\npresumption of regularity therefore applies.\\n\\n This general presumption of regularity applies with yet stronger force to the\\n\\nspecifics of this case because Locke’s counsel conceded at oral argument that his Virginia\\n\\nconviction was valid. Oral Argument at 4:03 (“I’m not challenging the validity of the\\n\\nconviction as it stands, just its use to criminalize my client’s possession of a firearm.”). If,\\n\\nas Locke concedes, the conviction was valid, then the plea that formed the very basis of\\n\\nthat Virginia conviction must also be valid. And, as every first-year law student knows, a\\n\\nvalid guilty plea is a waiver of the right to a jury trial. Parke v. Raley, 506 U.S. 20, 29\\n\\n(1992).\\n\\n In the face of these formidable obstacles, Locke offered only evidence from his\\n\\nlawyer in the Virginia proceeding that “to the best of [the lawyer’s] recollection” the judge\\n\\ndid not inform Locke of his right to a trial by jury. J.A. 525. But at no point has Locke ever\\n\\n 8\\n\\nsought to withdraw his plea on this or any other basis. Any such attempt would, of course,\\n\\npose a daunting challenge in light of all the “relevant circumstances” surrounding his plea.\\n\\nBrady v. U.S., 397 U.S. 742, 749 (1970). Locke was an adult, he was represented by\\n\\ncounsel, there was no suggestion of mental incompetence, there was no suggestion of\\n\\nimproper threats from the authorities, and he had prior experience with the criminal justice\\n\\nsystem. Id. at 755-56. Under these circumstances we must hold that his guilty plea was\\n\\nvalid—which is to say, knowing and intelligent—in all respects, including its waiver of\\n\\nLocke’s jury trial right. Parke v. Raley, 506 U.S. 20, 29 (1992). “That is so because a guilty\\n\\nplea constitutes a waiver of three constitutional rights: the right to a jury trial, the right to\\n\\nconfront one’s accusers, and the privilege against self-incrimination.” Id. To say otherwise\\n\\nis to deprive a guilty plea of its normal force and effect. This we cannot do.\\n\\n IV.\\n\\n In enacting 18 U.S.C. § 922(g)(9), Congress sought to protect victims of domestic\\n\\nabuse from the risk of gun violence posed by their abuser. For this reason, the legislature\\n\\nhas forbidden anyone convicted of a misdemeanor crime of domestic violence from\\n\\npossessing a firearm. Brandon Locke has admitted to committing such a crime. His\\n\\nadmission—made in the form of a guilty plea—was given with representation by counsel,\\n\\nunder no inappropriate pressure from the state, in a forum where there was no right to a\\n\\njury trial. Thus, we take Mr. Locke’s admission at his word. His guilty plea stands, his\\n\\npossession of the firearm was illegal, and the judgment of the district court is\\n\\n AFFIRMED.\\n\\n\\n\\n 9\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4421263/\", \"author_raw\": \"joined. Judge Berger wrote a dissenting\"}, {\"author\": \"BERGER, District Judge, dissenting\", \"type\": \"dissent\", \"text\": \"BERGER, District Judge, dissenting:\\n\\n Brandon Locke was convicted of possession of a firearm by a prohibited person in\\n\\nviolation of 18 U.S.C. § 922(g)(9). The United States relied on two misdemeanor domestic\\n\\nviolence convictions as predicates: A Georgia conviction for family battery violence in\\n\\nviolation of Georgia Code § 16-5-23.1(a)(f)(1) and a Virginia conviction for assault and\\n\\nbattery against a family or household member in violation of Virginia Code § 18.2-57.2.\\n\\nBoth proceedings were resolved by guilty plea. Neither proceeding involved a plea\\n\\ncolloquy wherein Mr. Locke was advised of his right to jury trial on the record, and neither\\n\\nproceeding included an affirmative waiver of that right on the record. No records from\\n\\neither proceeding included a written waiver of the right to a jury trial. Because the Majority\\n\\naddressed only the Virginia conviction, this dissent will likewise primarily focus on that\\n\\nconviction. The facts of the Georgia conviction, however, are equally problematic.\\n\\n I.\\n\\n Mr. Locke invoked 18 U.S.C. § 921(a)(33)(B)(i)(II)(bb) as an affirmative defense.\\n\\nThat provision states that a\\n\\n person shall not be considered to have been convicted of [an MCDV], unless, in\\n the case of a prosecution for an offense described in this paragraph for which a\\n person was entitled to a jury trial in the jurisdiction in which the case was tried,\\n […] the person knowingly and intelligently waived the right to have the case tried\\n by a jury, by guilty plea or otherwise.\\n\\nThe Majority now concludes that Mr. Locke did not have a right to a jury trial in Virginia\\n\\nbecause he pled guilty in the Juvenile and Domestic Relations court (JDR).\\n\\n Mr. Locke was charged with assault and battery against a family or household\\n\\nmember in violation of Virginia Code § 18.2-57.2, a Class 1 misdemeanor with potential\\n\\n 10\\n\\npunishment of up to a year in jail and a fine of up to $2,500. Va. Code § 18.2-11. The\\n\\nVirginia Constitution guarantees criminal defendants the right to a jury trial, but permits\\n\\nlaws “providing for the trial of offenses not felonious by a court not of record without a\\n\\njury, preserving the right of the accused to an appeal and a trial by jury in some court of\\n\\nrecord having original criminal jurisdiction.” Va. Const. art. I, § 8. The Virginia Court of\\n\\nAppeals has confirmed that both the United States Constitution and the Virginia\\n\\nConstitution guarantee the right to a jury trial to defendants charged with offenses carrying\\n\\npotential sentences of more than six months. McCormick v. City of Virginia Beach, 363\\n\\nS.E.2d 124, 125 (Va. Ct. App. 1987) (Keenan, J., reversing a conviction because the\\n\\ndefendant “did not give express and intelligent consent to waive his right to trial by jury”\\n\\nfor misdemeanor charges with potential sentences of six months and twelve months).\\n\\n I agree that a jury trial is not available in the JDR court, but that fact holds little\\n\\nweight here because the statutory affirmative defense (on which Mr. Locke relied)\\n\\ncontained in 18 U.S.C. § 921(a)(33)(B)(i)(II)(bb) asks whether a defendant “knowingly\\n\\nand intelligently waived the right to have the case tried by a jury” “in the case of a\\n\\nprosecution for an offense…for which a person was entitled to a jury trial in the jurisdiction\\n\\nin which the case was tried.” (emphasis added). The jurisdiction is Virginia and Virginia\\n\\nguaranteed Mr. Locke the right to a jury trial for his Class A misdemeanor.\\n\\n Virginia courts have concluded that Virginia’s system of providing a jury trial on\\n\\nappeal for certain misdemeanors meets constitutional muster because it preserves the right\\n\\nto a jury trial. Manns v. Commonwealth, 191 S.E.2d 810, 812 (Va. 1972). The Majority’s\\n\\nconclusion that Mr. Locke did not have the right to a jury trial with respect to an offense\\n\\n 11\\n\\ncarrying a potential sentence of twelve months of incarceration calls into question the\\n\\nconstitutionality of that system. Based on Virginia precedent and the language of its\\n\\nConstitution, I would find that Mr. Locke had the right to a jury trial for his Virginia MCDV\\n\\nconviction.\\n\\n II.\\n\\n In the alternative, the Majority finds that Mr. Locke must be presumed to have\\n\\nknowingly and intelligently waived his right to a jury trial simply by virtue of his entry of\\n\\na guilty plea. I would apply the statute by its express terms and permit defendants to\\n\\nchallenge the use of a MCDV as an affirmative defense, for purposes of an 18 U.S.C. §\\n\\n922(g) prosecution, without collaterally attacking the MCDV conviction. The Majority’s\\n\\nreliance on the presumption of regularity renders the requirement in 18 §\\n\\n921(a)(33)(B)(i)(II)(bb) of a knowing and intelligent waiver to be a practical nullity. If\\n\\nCongress intended a knowing and intelligent waiver to be presumed by the existence of a\\n\\nconviction by guilty plea, without the opportunity for a challenge and further inquiry, it\\n\\nwould have had no reason to enact that provision.\\n\\n Waiving the right to a jury trial is an affirmative act, and the judge accepting a guilty\\n\\nplea requiring such a waiver must ensure that it is undertaken knowingly, intelligently, and\\n\\nvoluntarily. “Presuming waiver from a silent record is impermissible.” Boykin v. Alabama,\\n\\n395 U.S. 238, 242 (1969) (quoting Carnley v. Cochran, 369 U.S. 506, 516 (1962)). Further\\n\\ninquiry into Mr. Locke’s MCDV convictions reveals that he did not waive the right to a\\n\\njury trial in accordance with settled law regarding waiver.\\n\\n\\n\\n 12\\n\\n If waiver of the right to a jury trial could ever be inferred solely from the existence\\n\\nof a guilty plea, such a presumption is particularly problematic with misdemeanor\\n\\nconvictions. To the extent it is common knowledge that defendants enjoy the right to a\\n\\ntrial by jury and waive that right by entering a guilty plea, there may also be general\\n\\nawareness that misdemeanors are often treated differently. The Majority notes “Virginia’s\\n\\nentirely reasonable decision to provide for the expeditious resolution of misdemeanors . .\\n\\n.,” and the language of the statute likewise recognizes the disparity in procedural rights\\n\\nafforded to individuals charged with misdemeanors in varying jurisdictions. Maj. Op. at\\n\\n5. Virginia’s procedure wherein defendants charged with misdemeanors may proceed\\n\\nwithout a jury in the JDR court but are guaranteed the right to a jury trial via an appeal to\\n\\nthe circuit court, demonstrates the need for a clear, affirmative waiver to ensure that a\\n\\ndefendant understands his rights. Yet the majority opinion charges unsophisticated\\n\\ndefendants with knowing and intelligent waiver of the right to a jury trial in the absence of\\n\\nany evidence that they were informed of the right or expressly waived it during the MCDV\\n\\nproceeding, on the basis that “as every first-year law student knows, a valid guilty plea is\\n\\na waiver of the right to a jury trial.” Maj. Op. at 8.\\n\\n Several courts, including a previous panel of the Fourth Circuit, have addressed\\n\\nchallenges to 18 U.S.C. § 922(g)(9) convictions based on assertions that an MCDV\\n\\nconviction was not a valid predicate because there was no knowing and intelligent waiver\\n\\nof the right to a jury trial. Those courts have engaged in a factual inquiry to determine\\n\\nwhether there was a knowing and intelligent waiver of the right to a jury trial in the\\n\\nparticular case. See, e.g. United States v. Jennings, 323 F.3d 263, 275–76 (4th Cir. 2003)\\n\\n 13\\n\\n(noting testimony from a municipal judge regarding her standard procedures to inform\\n\\ndefendants of their rights); United States v. Frechette, 456 F.3d 1, 7 (1st Cir. 2006); United\\n\\nStates v. Pfeifer, 371 F.3d 430, 434 (8th Cir. 2004) (stressing the factual inquiry in whether\\n\\na defendant waived); United States v. Bethurum, 343 F.3d 712, 716 (5th Cir. 2003).\\n\\n Since Virginia precedent and its Constitution establish that Mr. Locke had a right to\\n\\na jury trial in the jurisdiction in which he was convicted and since a sufficient factual record\\n\\nwas adduced before the district court to reveal that Mr. Locke was not informed of his right\\n\\nto a jury trial and did not knowingly and intelligently waive that right in either the Virginia\\n\\nor Georgia proceedings, I would find that neither conviction could be used as a predicate\\n\\nto support a conviction under 18 U.S.C. 922(g)(9) and reverse.\\n\\n\\n\\n\\n 14\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4421263/\", \"author_raw\": \"BERGER, District Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"WILKINSON"},"judge2":{"kind":"string","value":"KING"},"judge3":{"kind":"string","value":"BERGER"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":5,"string":"5"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":3,"string":"3"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4644010/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":1,"string":"1"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Brandon LOCKE, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-07-30\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-4367\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff – Appellee,\n\n v.\n\nBRANDON LOCKE,\n\n Defendant – Appellant.\n\n\n\nAppeal from the United States District Court for the Eastern District of Virginia, at\nAlexandria. T.S. Ellis, III, Senior District Judge. (1:17-cr-00210-TSE-1)\n\n\nArgued: May 9, 2019 Decided: July 30, 2019\n\n\nBefore WILKINSON and KING, Circuit Judges, and Irene C. BERGER, United States\nDistrict Judge for the Southern District of West Virginia, sitting by designation.\n\n\nAffirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge King\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Brandon LOCKE, Defendant - Appellant.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-07-30\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-4367\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff – Appellee,\\n\\n v.\\n\\nBRANDON LOCKE,\\n\\n Defendant – Appellant.\\n\\n\\n\\nAppeal from the United States District Court for the Eastern District of Virginia, at\\nAlexandria. T.S. Ellis, III, Senior District Judge. (1:17-cr-00210-TSE-1)\\n\\n\\nArgued: May 9, 2019 Decided: July 30, 2019\\n\\n\\nBefore WILKINSON and KING, Circuit Judges, and Irene C. BERGER, United States\\nDistrict Judge for the Southern District of West Virginia, sitting by designation.\\n\\n\\nAffirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge King\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2967,"cells":{"id":{"kind":"number","value":4644012,"string":"4,644,012"},"name":{"kind":"string","value":"J. Duane GILLIAM, Guardian of the Estate of Leon Brown; Raymond C. Tarlton, Guardian Ad Litem for Henry Lee McCollum, Plaintiffs - Appellees, and Henry Lee McCollum; Leon Brown; Geraldine Brown Ransom, Guardian of Leon Brown; Kimberly Pinchbeck, as Limited Guardian and Conservator of the Estate of Henry Lee McCollum, Plaintiffs, v. Kenneth SEALEY, Both Individually and in His Official Capacity as the Sheriff of Robeson County; Robert E. Price, Administrator C.T.A. of the Estate of Joel Garth Locklear, Sr., Defendants - Appellants, and Robeson County; Town of Red Springs; Kenneth Snead; Joel Garth Locklear; Larry Floyd; Leroy Allen ; Estate of Luther Haggins; Geraldine Britt Haggins, as Administratix/Executrix of the Estate of Luther Haggins; Paul Canady, Administrator C.T.A. of the Estate of Luther Haggins; Fayetteville Observer-Times ; Associated Press; WTVD Television LLC ; Charlotte Observer, Defendants. J. Duane Gilliam, Guardian of the Estate of Leon Brown; Raymond C. Tarlton, Guardian Ad Litem for Henry Lee McCollum, Plaintiffs - Appellees, and Henry Lee McCollum; Leon Brown; Geraldine Brown Ransom, Guardian of Leon Brown; Kimberly Pinchbeck, as Limited Guardian and Conservator of the Estate of Henry Lee McCollum, Plaintiffs, v. Kenneth Snead; Leroy Allen, Defendants - Appellants, and Robeson County; Town of Red Springs; Kenneth Sealey, Both Individually and in His Official Capacity as the Sheriff of Robeson County; Joel Garth Locklear; Larry Floyd; Estate of Luther Haggins; Geraldine Britt Haggins, as Administratix/Executrix of the Estate of Luther Haggins; Paul Canady, Administrator C.T.A. of the Estate of Luther Haggins; Robert E. Price, Administrator C.T.A. of the Estate of Joel Garth Locklear, Sr.; Fayetteville Observer-Times ; Associated Press; WTVD Television LLC ; Charlotte Observer, Defendants."},"name_abbreviation":{"kind":"string","value":"J. Gilliam v. Kenneth Sealey"},"decision_date":{"kind":"string","value":"2019-07-30"},"docket_number":{"kind":"string","value":"18-1366; 18-1402"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Niemeyer, Thacker, Richardson\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9889026/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"035concurrenceinpart\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9889027/\", \"author_raw\": \"\"}, {\"author\": \"THACKER, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1366\\n\\n\\nJ. DUANE GILLIAM, Guardian of the Estate of Leon Brown; RAYMOND C.\\nTARLTON, Guardian Ad Litem for Henry Lee McCollum,\\n\\n Plaintiffs - Appellees,\\n\\n and\\n\\nHENRY LEE MCCOLLUM; LEON BROWN; GERALDINE BROWN RANSOM,\\nGuardian of Leon Brown; KIMBERLY PINCHBECK, as limited guardian and\\nconservator of the estate of Henry Lee McCollum,\\n\\n Plaintiffs,\\n\\n v.\\n\\nKENNETH SEALEY, both individually and in his official capacity as the Sheriff of\\nRobeson County; ROBERT E. PRICE, Administrator C.T.A. of the Estate of Joel\\nGarth Locklear, Sr.,\\n\\n Defendants - Appellants,\\n\\n and\\n\\nROBESON COUNTY; TOWN OF RED SPRINGS; KENNETH SNEAD; JOEL\\nGARTH LOCKLEAR; LARRY FLOYD; LEROY ALLEN; ESTATE OF LUTHER\\nHAGGINS; GERALDINE BRITT HAGGINS, as Administratix/Executrix of the\\nEstate of Luther Haggins; PAUL CANADY, Administrator C.T.A of the Estate of\\nLuther Haggins; FAYETTEVILLE OBSERVER-TIMES; ASSOCIATED PRESS;\\nWTVD TELEVISION LLC; CHARLOTTE OBSERVER,\\n\\n Defendants.\\n\\n No. 18-1402\\n\\n\\nJ. DUANE GILLIAM, Guardian of the Estate of Leon Brown; RAYMOND C.\\nTARLTON, Guardian Ad Litem for Henry Lee McCollum,\\n\\n Plaintiffs - Appellees,\\n\\n and\\n\\nHENRY LEE MCCOLLUM; LEON BROWN; GERALDINE BROWN RANSOM,\\nGuardian of Leon Brown; KIMBERLY PINCHBECK, as limited guardian and\\nconservator of the estate of Henry Lee McCollum,\\n\\n Plaintiffs,\\n\\n v.\\n\\nKENNETH SNEAD; LEROY ALLEN,\\n\\n Defendants - Appellants,\\n\\n and\\n\\nROBESON COUNTY; TOWN OF RED SPRINGS; KENNETH SEALEY, both\\nindividually and in his official capacity as the Sheriff of Robeson County; JOEL\\nGARTH LOCKLEAR; LARRY FLOYD; ESTATE OF LUTHER HAGGINS;\\nGERALDINE BRITT HAGGINS, as Administratix/Executrix of the Estate of\\nLuther Haggins; PAUL CANADY, Administrator C.T.A of the Estate of Luther\\nHaggins; ROBERT E. PRICE, Administrator C.T.A. of the Estate of Joel Garth\\nLocklear, Sr.; FAYETTEVILLE OBSERVER-TIMES; ASSOCIATED PRESS;\\nWTVD TELEVISION LLC; CHARLOTTE OBSERVER,\\n\\n Defendants.\\n\\n\\nAppeals from the United States District Court for the Eastern District of North Carolina, at\\nRaleigh. Terrence W. Boyle, Chief District Judge. (5:15-cv-00451-BO)\\n\\n\\nArgued: March 20, 2019 Decided: July 30, 2019\\n\\n 2\\n\\nBefore NIEMEYER, THACKER, and RICHARDSON, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Thacker wrote the opinion, in which Judge\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4421265/\", \"author_raw\": \"THACKER, Circuit Judge:\"}, {\"author\": \"Niemeyer joined. Judge Richardson wrote a separate opinion concurring\", \"type\": \"concurrence\", \"text\": \"Niemeyer joined. Judge Richardson wrote a separate opinion concurring in part and\\ndissenting in part.\\n\\n\\n\\nARGUED: James R. Morgan Jr., WOMBLE BOND DICKINSON (US) LLP, Winston-\\nSalem, North Carolina, for Appellants. Catherine E. Stetson, HOGAN LOVELLS US\\nLLP, Washington, D.C., for Appellees. ON BRIEF: Bradley O. Wood, WOMBLE\\nBOND DICKINSON (US) LLP, Winston-Salem, North Carolina, for Appellants K. Sealey\\nand R. Price. Joshua H. Stein, OFFICE OF THE ATTORNEY GENERAL OF NORTH\\nCAROLINA, Raleigh, North Carolina; Matthew W. Sawchak, Brian D. Rabinovitz,\\nNORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for\\nAppellants K. Snead and L. Allen. E. Desmond Hogan, Kirti Datla, David W. Maxwell,\\nElizabeth C. Lockwood, Matthew J. Higgins, HOGAN LOVELLS US LLP, Washington,\\nD.C., for Appellees.\\n\\n\\n\\n\\n 3\\n\\nTHACKER, Circuit Judge:\\n\\n This case stems from the wrongful conviction of two brothers, both teenaged boys\\n\\nwith severe intellectual disabilities, for the rape and murder of an 11 year old girl in 1983.\\n\\nHenry McCollum and Leon Brown (“Appellees”) spent 31 years in prison and on death\\n\\nrow 1 before being exonerated based on DNA evidence linking another individual, a man\\n\\nwho was known to officers at the time of the investigation, to the crime. Following their\\n\\nrelease from prison, Appellees brought this case pursuant to 42 U.S.C. § 1983 alleging that\\n\\nthe state and county law enforcement officers investigating the crime violated their Fourth\\n\\nAmendment and due process rights.\\n\\n The officers moved for summary judgment on the basis of qualified immunity. The\\n\\ndistrict court denied their motion, and this appeal followed. Because Appellees have\\n\\nalleged facts sufficient to show that the officers violated their clearly established Fourth\\n\\nAmendment and due process rights, we affirm the district court’s denial of qualified\\n\\nimmunity.\\n\\n I.\\n\\n A.\\n\\n The Underlying Crime and Investigation\\n\\n Eleven year old Sabrina Buie went missing on the evening of September 24, 1983,\\n\\nin Red Springs, North Carolina. Two days later, her body was discovered in a soybean\\n\\n\\n 1\\n Brown spent nearly a decade on death row before being retried in 1992 and\\nsentenced to life in prison, while McCollum remained on death row following his second\\ntrial.\\n\\n 4\\n\\nfield near a convenience store in Red Springs. She was found naked from the waist down,\\n\\nwith her bra pushed up over the back of her head. Her panties were shoved down her throat\\n\\nwith a stick, and she had been sexually assaulted.\\n\\n The Red Springs Police Department and the North Carolina State Bureau of\\n\\nInvestigation (“SBI”) worked together to investigate the case. SBI Agents Leroy Allen\\n\\nand Kenneth Snead and Robeson County Detectives Joel Garth Locklear and Kenneth\\n\\nSealey (collectively, “Appellants”) were assigned to the case. While processing the crime\\n\\nscene, Appellants discovered three Schiltz Malt Liquor beer cans, three match sticks, one\\n\\nNewport cigarette butt, and two wooden sticks reddened with blood.\\n\\n On September 27, 1983, while canvassing the neighborhood for witnesses,\\n\\nDetective Locklear spoke to Henry McCollum, who denied any knowledge of Buie’s\\n\\ndisappearance. However, the following evening, Agent Snead and Detective Sealey\\n\\ninterviewed Ethel Furmage, a high school student, who said that she had “heard at school”\\n\\nthat McCollum “had something to do with” Buie’s murder. J.A. 304. 2 Shortly after 9:00\\n\\nthat evening, Snead, Sealey, and Agent Allen traveled to McCollum’s home to interview\\n\\nhim. McCollum agreed to ride with the officers to the police station, where he was\\n\\nfingerprinted and questioned.\\n\\n\\n\\n\\n 2\\n Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.\\n\\n 5\\n\\n B.\\n\\n Interrogations of Appellees\\n\\n 1.\\n\\n McCollum\\n\\n What exactly happened in the interrogation room is at the heart of this case and is,\\n\\nas the district court determined, a dispute of material fact that must be determined by a\\n\\njury. This is what we know for sure. At the time of these events, McCollum was 19 years\\n\\nold, and he suffered from severe intellectual disabilities. He scored a 56 on an IQ test,\\n\\nwhere any score below a 69 indicates intellectual disability. In high school, McCollum\\n\\nperformed at the level of an eight to ten year old. And in 1990, McCollum was formally\\n\\ndiagnosed as intellectually disabled. McCollum had never been in legal trouble.\\n\\n A Miranda 3 waiver form bearing McCollum’s signature is dated September 28,\\n\\n1983, at 10:26 p.m. At 2:10 a.m. on September 29, McCollum signed a handwritten\\n\\nconfession that was drafted by Agent Snead and witnessed by Detective Sealey and Red\\n\\nSprings Police Department Chief Luther Haggins. This confession stated the following:\\n\\nMcCollum, along with four other boys -- Darrell Suber, Louis Moore, Chris (last name\\n\\nunknown), and Leon Brown -- were with Buie at approximately 9:30 p.m. on September\\n\\n24, the day she went missing. Suber and Chris left the group to buy a six-pack of beer from\\n\\nthe nearby convenience store. When they returned, Suber, Chris, McCollum, Moore, and\\n\\nBrown discussed raping Buie, because she had not agreed to have sex with them\\n\\n\\n 3\\n Miranda v. Arizona, 384 U.S. 436 (1966).\\n\\n 6\\n\\nvoluntarily. After this conversation, Moore left. The rest of the group walked with Buie\\n\\nto the woods at the edge of a field and drank beer. Suber and Chris smoked Newport\\n\\ncigarettes.\\n\\n Per the confession, McCollum grabbed Buie’s right arm while Brown grabbed her\\n\\nleft arm. The group of boys then took turns raping Buie, with McCollum going third and\\n\\nBrown going last. Afterwards, Suber said they had to do something so that Buie would not\\n\\ntell the police what they had done. Chris tied Buie’s pink panties to a stick, then used it to\\n\\nchoke Buie to death. While this was happening, McCollum and Brown held Buie down\\n\\nand Suber cut her with a knife. Then, after they believed Buie was dead, the boys dragged\\n\\nher body to the edge of the woods. Suber had blood on his brown corduroy jacket and gray\\n\\nNike tennis shoes, and Chris had blood on his sneakers.\\n\\n After McCollum signed the confession, he was placed under arrest for Buie’s rape\\n\\nand murder.\\n\\n 2.\\n\\n Brown\\n\\n During McCollum’s interrogation, his mother Mamie Brown and brother Leon\\n\\nBrown arrived at the police station. At approximately 2 a.m. on September 29, and based\\n\\non McCollum’s written confession, Detective Locklear and Chief Haggins began to\\n\\ninterrogate Brown.\\n\\n Brown was 15 years old at the time, and like his brother, he had been diagnosed\\n\\nwith severe intellectual disabilities. He consistently scored in the mid-50s range on IQ\\n\\ntests, and although he was in seventh grade, he performed at a third grade level. In 1982,\\n\\n 7\\n\\na school psychologist had placed Brown in a special education class. Like his brother,\\n\\nBrown had not previously been in legal trouble.\\n\\n At 2:24 a.m., Brown signed a form entitled “Juvenile Rights Warning.” 4 Then,\\n\\naround 6 a.m., Brown signed a confession that had been drafted by Detective Locklear.\\n\\nFollowing Brown’s confession, he was arrested for the rape and murder of Buie.\\n\\n 3.\\n\\n Confession Inconsistencies\\n\\n Brown’s confession implicated Suber and Chris, but it differed in certain aspects\\n\\nfrom McCollum’s confession. Notably, Brown’s confession makes no mention of Moore’s\\n\\ninvolvement, and it does not reference a stick being used to force Buie’s underwear down\\n\\nher throat.\\n\\n The confessions of McCollum and Brown also contained certain details that were\\n\\nlater proven false. For example, both confessions stated that Suber and Chris were\\n\\ninvolved in the crime and took turns raping Buie, but the police verified that Suber, Chris,\\n\\nand Moore all had alibis on the night of the murder. And contrary to the confessions, an\\n\\nautopsy revealed that Buie’s panties were white, not pink, and she had no stab wounds.\\n\\n\\n\\n\\n 4\\n This form lists the rights available to a juvenile questioned by law enforcement\\nofficers, including the rights “to remain silent”; “to have a parent, guardian, or custodian\\npresent during questioning”; and “to talk with a lawyer for advice before questioning and\\nto have that lawyer with you during questioning.” J.A. 1313.\\n\\n 8\\n\\n C.\\n\\n Criminal Proceedings and Post-Conviction Relief\\n\\n 1.\\n\\n 1984 Trial\\n\\n Appellees were indicted by a grand jury on January 3, 1984, on charges of first-\\n\\ndegree murder and rape. They were tried together in Robeson County Superior Court in\\n\\nOctober 1984. The prosecutor was District Attorney Joe Freeman Britt, McCollum was\\n\\nrepresented by Earl Strickland, and Brown was represented by Robert Johnson.\\n\\n Appellees both moved to suppress their confessions. These motions were denied.\\n\\nThe trial court concluded that both McCollum and Brown had voluntarily gone to the police\\n\\nstation; each had knowingly and intelligently waived his rights; and each had made\\n\\nstatements freely, voluntarily, and knowingly. Appellees both testified at trial, and each\\n\\nwas convicted and sentenced to death.\\n\\n 2.\\n\\n Second Trials\\n\\n On appeal, the North Carolina Supreme Court reversed and remanded the case for\\n\\na new trial based on error in the jury instructions. See North Carolina v. McCollum, 364\\n\\nS.E.2d 112 (N.C. 1988). Appellees were then tried separately in adjacent counties.\\n\\n McCollum was retried in Cumberland County in November 1991. The Cumberland\\n\\nCounty Superior Court denied McCollum’s motion to suppress his confession, concluding\\n\\nthat McCollum’s constitutional rights were not violated by his arrest, detention,\\n\\ninterrogation, or confession; that his confession was made freely and voluntarily; and that\\n\\n 9\\n\\nMcCollum waived his rights freely, knowingly, and intelligently. During the November\\n\\n1991 trial, and with McCollum’s consent, McCollum’s attorney argued to the jury that\\n\\nMcCollum was present for the rape and murder of Buie, and he asked the jury to return a\\n\\nverdict of second-degree murder. McCollum was found guilty of first-degree murder and\\n\\nrape, and he was again sentenced to death. The North Carolina Supreme Court affirmed\\n\\nMcCollum’s conviction and sentence. See North Carolina v. McCollum, 433 S.E.2d 144\\n\\n(N.C. 1993). The United States Supreme Court denied McCollum’s petition for writ of\\n\\ncertiorari. See McCollum v. North Carolina, 512 U.S. 1254 (1994).\\n\\n After McCollum’s trial, Brown was retried in Bladen County Superior Court in June\\n\\n1992. Brown’s motion to suppress his confession was denied after the trial court concluded\\n\\nthat Brown knowingly, intelligently, and voluntarily waived his rights; that his\\n\\nconstitutional rights had not been violated; and that his confession was voluntary. The trial\\n\\ncourt later granted a defense motion to dismiss the first-degree murder charge, finding that\\n\\nBrown had withdrawn from the conspiracy to commit murder. The jury found Brown\\n\\nguilty of first-degree rape, and he was sentenced to life in prison. The North Carolina Court\\n\\nof Appeals and the North Carolina Supreme Court affirmed Brown’s conviction and\\n\\nsentence. See North Carolina v. Brown, 436 S.E.2d 163 (N.C. Ct. App. 1993); North\\n\\nCarolina v. Brown, 453 S.E.2d 165 (N.C. 1995). Brown did not file a petition for writ of\\n\\ncertiorari to the United States Supreme Court.\\n\\n\\n\\n\\n 10\\n\\n 3.\\n\\n NCIIC Investigation\\n\\n In 2009, Brown sought assistance from the North Carolina Innocence Inquiry\\n\\nCommission (“NCIIC”), and the NCIIC accepted his case. The NCIIC then reached out to\\n\\nMcCollum and accepted his case as well. In its investigation, the NCIIC uncovered DNA\\n\\nevidence on the Newport cigarette butt found at the scene of the crime. The DNA matched\\n\\nRoscoe Artis, a man known to Appellants during the investigation of Buie’s murder.\\n\\n In 1984, Artis was convicted of a crime strikingly similar to Buie’s murder: the first-\\n\\ndegree murder and rape of Joann Brockman, also in Red Springs, North Carolina. On\\n\\nOctober 22, 1983 -- less than one month after Buie’s murder -- Brockman’s body was found\\n\\nnaked except for a sweater and bra pushed up above her breasts, and an autopsy revealed\\n\\nthat she died from manual strangulation during sexual intercourse. Artis was arrested the\\n\\nsame day, and he was tried in August 1984. The prosecutor for Artis’s trial was district\\n\\nattorney Joe Freeman Britt, and Artis was represented by Earl Strickland -- both of whom\\n\\nwould be involved in McCollum and Brown’s October 1984 trial just two months later.\\n\\nAppellants Agent Allen and Detective Locklear, who were involved in the investigation of\\n\\nBrockman’s murder, testified for the state in Artis’s trial. 5 Artis received a death sentence,\\n\\n\\n\\n 5\\n Detective Locklear testified that he responded to the scene of the crime, observed\\nthe victim’s body, and interviewed Artis on the day of Brockman’s murder. According to\\nLocklear, during this interview Artis confessed to the murder and led officers back to the\\nlocation where Brockman’s body had been discovered. Allen testified that he transported\\ncertain evidence, including a blood sample taken from Artis, to the SBI lab for testing as\\npart of the investigation.\\n\\n 11\\n\\nwhich was commuted to life in prison. See North Carolina v. Artis, 384 S.E.2d 470 (N.C.\\n\\n1989), judgment vacated, 494 U.S. 1023 (1990); see also North Carolina v. Artis, 406\\n\\nS.E.2d 827 (N.C. 1991).\\n\\n The DNA tested on other items of physical evidence from the scene of Buie’s\\n\\nmurder did not match McCollum or Brown.\\n\\n 4.\\n\\n MAR Court Proceedings and Pardons\\n\\n Based on this DNA evidence, Appellees filed motions for appropriate relief\\n\\n(“MAR”) in the Robeson County Superior Court. At a hearing on these motions held\\n\\nSeptember 2, 2014, the NCIIC’s investigator testified about inconsistencies between\\n\\nAppellees’ written confessions and the DNA match to Artis on the cigarette. The state did\\n\\nnot contest that the newly discovered DNA evidence was favorable to Appellees, and it\\n\\nconceded that Appellees had satisfied the requirements of N.C. Gen. Stat. § 15A-270(c),\\n\\nwhich governs the relief available to petitioners who come forward with favorable DNA\\n\\nevidence post-conviction. The MAR court held, “especially when considered together with\\n\\nthe rest of the results of the [NCIIC]’s investigation,” the favorable DNA evidence “tend[s]\\n\\nto establish Henry McCollum’s and Leon Brown’s innocence of [the] crime for which they\\n\\nwere convicted and sentenced.” J.A. 309. Accordingly, the MAR court vacated Appellees’\\n\\nconvictions and sentences from Robeson, Cumberland, and Bladen counties, dismissed\\n\\nwith prejudice all charges in the cases, and ordered Appellees’ immediate release.\\n\\n On June 5, 2015, North Carolina Governor Pat McCrory issued full pardons of\\n\\ninnocence to Appellees.\\n\\n 12\\n\\n D.\\n\\n District Court Proceedings\\n\\n Appellees filed this action against Appellants on August 31, 2015. The amended\\n\\ncomplaint alleges four claims arising pursuant to 42 U.S.C. § 1983: false arrest, malicious\\n\\nprosecution, deprivation of due process, and municipal liability. At the root of these\\n\\nclaims, Appellees assert that Appellants coerced and fabricated Appellees’ confessions,\\n\\nand then, to cover up this wrongdoing, Appellees allege that Appellants withheld in bad\\n\\nfaith exculpatory evidence that demonstrated Appellees’ innocence and buried pieces of\\n\\nspecific evidence indicating that Artis -- and not Appellees -- raped and murdered Buie.\\n\\n Appellants sought summary judgment on the basis of qualified immunity. The\\n\\ndistrict court concluded that genuine disputes of material fact preclude summary judgment\\n\\nbased on qualified immunity, and that a jury must determine whether Appellees’\\n\\nconfessions were voluntary and whether Appellants acted in bad faith while investigating\\n\\nBuie’s murder after the confessions were obtained. The district court summarized these\\n\\ndisputes of material fact as follows.\\n\\n\\n\\n\\n 13\\n\\n 1.\\n\\n The Confessions\\n\\n a.\\n\\n McCollum\\n\\n The district court noted that “[t]he parties offer[ed] drastically different versions of\\n\\nthe events surrounding the confessions given by [Appellees].” J.A. 318. Agent Snead and\\n\\nDetective Sealey stated that they began questioning McCollum around 9:30 p.m. But\\n\\nSnead and Sealey’s recollections of when McCollum received his Miranda warning differ;\\n\\nSnead testified in his deposition that McCollum signed the waiver prior to questioning,\\n\\nwhereas Sealey testified in his deposition that McCollum signed the waiver after he\\n\\nadmitted to holding Buie down. Sealey testified that he asked few if any questions during\\n\\nthe interview, and that Snead took the lead. Agent Allen was also present during the\\n\\ninterview, according to Snead.\\n\\n After what Detective Sealey thought might have been five or ten minutes of\\n\\nquestioning -- but Agent Snead recalls being anywhere from twenty to forty-five minutes\\n\\n-- McCollum admitted to them, “I just held her down.” J.A. 319. Sealey testified at his\\n\\ndeposition that he thought McCollum was about to have a seizure just before he admitted\\n\\nthis; meanwhile, Snead testified at his deposition that McCollum was extremely calm.\\n\\n According to Agent Snead, he talked with McCollum until about 1:50 a.m.,\\n\\nMcCollum confessed, and Snead wrote out McCollum’s statement. Then, Snead testified,\\n\\nMcCollum confronted Brown and Suber, who were at the police station, and told them that\\n\\nhe (McCollum) had told the truth and wanted them to also tell the truth about killing Buie.\\n\\n 14\\n\\nMcCollum then asked Chief Haggins if he could go home, and Snead informed McCollum\\n\\nthat things had changed and asked Haggins to arrest McCollum for murder.\\n\\n As the district court noted, “McCollum’s description of his interview by Snead,\\n\\nSealey, and Allen bears no resemblance to the [officers’ accounts].” J.A. 319. According\\n\\nto McCollum, the officers told him that if he signed a form -- the Miranda waiver form --\\n\\nthey would let him go home. McCollum signed the form without reading it. In his\\n\\ndeposition, McCollum testified that the officers questioning him “got into his face, hollered\\n\\nat him, . . . threatened him, . . . [and] McCollum repeatedly denied being involved.” Id.\\n\\nAccording to McCollum, he was called racial epithets, and Detective Sealey threatened\\n\\nthat McCollum “was going to get the gas chamber,” J.A. 988, if he did not talk. McCollum\\n\\nbelieved this to mean that Sealey had the “power and authority” to kill him. Id. at 1022.\\n\\nDuring the interrogation, McCollum’s mother arrived at the station and asked the officers\\n\\nto see her son. McCollum likewise asked if he could see his mother. The officers refused,\\n\\nand McCollum heard one of the officers tell his mother to “shut up” and threaten to “lock\\n\\nher up.” Id. at 986–87. McCollum further testified that the officers told him to sign a paper\\n\\nthat said if he could help them in the case as a witness, they would let him go home.\\n\\nMcCollum signed the paper -- which was actually the confession written out by Snead --\\n\\nbut he did not read it and it was not read to him. McCollum denies that he confessed to\\n\\nraping and murdering Buie.\\n\\n\\n\\n\\n 15\\n\\n b.\\n\\n Brown\\n\\n As the district court summarized, Brown came to the police station with his mother\\n\\nat about 11 p.m. on September 28, 1983, while McCollum was being questioned. Brown\\n\\ntestified at the 1984 trial that he could hear his brother crying when he arrived. At around\\n\\n2:30 a.m., while Brown was waiting at the station with L.P. Sinclair (a friend of the boys\\n\\nand eventual witness in the case), Detective Locklear and Agent Allen took Brown to an\\n\\ninterrogation room and began questioning him.\\n\\n Agent Allen testified at his deposition that he read Brown his juvenile rights,\\n\\nincluding the right to have a parent present, and that Brown stated he understood his rights\\n\\nand wished to answer questions without a lawyer or parent present. Allen stated that he\\n\\ndid not recall Brown asking to speak with his mother, or Brown’s mother asking to see\\n\\nBrown. Agent Snead testified at his deposition that he does not know why Brown was\\n\\ntaken to an interview room, and that he witnessed Brown’s rights form but was not in the\\n\\nroom when Brown confessed. Detective Locklear testified at the 1984 trial that he took\\n\\nBrown’s statement, and that Brown was “quite alert of mind and very precise in what he\\n\\nwanted to say to me.” J.A. 321. Further, Locklear testified that he made Brown no\\n\\npromises and did not threaten him.\\n\\n Brown, meanwhile, testified at his 1984 trial that Detective Locklear did not advise\\n\\nhim of his rights, that Brown asked for his mother when an officer grabbed Brown’s arm,\\n\\nand that Brown (like McCollum) was told he would be taken to the gas chamber if he did\\n\\nnot sign the rights waiver. Then, Brown testified that when the officers gave him a piece\\n\\n 16\\n\\nof paper, he circled “no” on it. According to Brown, that “no” was supposed to indicate\\n\\nthat he could not help the officers. Brown testified that the officers then “began to hammer\\n\\nhim, calling him racial epithets and stating that he [Brown] had committed the crime or\\n\\nthat he knew something about it.” J.A. 320. During Brown’s interrogation, his mother was\\n\\nknocking on the door asking to see him, but she was refused entry. Brown denied any\\n\\nknowledge of the crime and stated that he was innocent. Brown testified at his deposition\\n\\nthat he did not say the things that are written in the confession; instead, Detective Locklear\\n\\ndrafted it and told Brown to sign it, which Brown did after an officer told him doing so\\n\\nwould ensure his release. Locklear then read the confession to Brown, and Brown told the\\n\\nofficers that it was not true. Like his brother, Brown was then placed under arrest.\\n\\n 2.\\n\\n The Investigation\\n\\n The district court noted additional disputes of material fact regarding Appellants’\\n\\nconduct during the investigation that precluded summary judgment on Appellees’ due\\n\\nprocess claims. Specifically, these factual disputes involved Appellees’ assertion that\\n\\nAppellants failed to investigate and withheld exculpatory evidence regarding (1) the\\n\\nsimilarities between the rape and murder of Buie and Artis’s rape and murder of Brockhart;\\n\\n(2) a statement by a potential eyewitness, Mary McLean Richards, that she saw Artis\\n\\nattacking Buie; and (3) the alleged coerced testimony of Brown and McCollum’s friend\\n\\nL.P. Sinclair.\\n\\n Appellees assert that Artis was a suspect in Buie’s murder, but Appellants failed to\\n\\ndisclose this to Appellees. According to Appellees, on October 5, 1984, three days before\\n\\n 17\\n\\nAppellees’ first trial, investigators submitted Artis’s fingerprints to the SBI for comparison\\n\\nto the latent prints found on the beer can at the Buie crime scene. Artis was listed as a\\n\\nsuspect on the fingerprint comparison request. However, the investigators canceled the\\n\\nrequest that same day, and the fingerprint comparison was never completed.\\n\\n Next, Appellees assert that Richards told Appellants that she witnessed Artis\\n\\nattacking Buie on the night of the murder, and that she attempted to intervene but Artis\\n\\nfrightened her away. Richards further testified that when she went home and told her\\n\\nmother what she had seen, her mother would not allow her to call the police. Richards\\n\\ntestified in her deposition that she provided this information to Detective Sealey during the\\n\\ninvestigation in 1983. However, Sealey’s investigation notes do not reflect this\\n\\ninformation.\\n\\n Finally, Appellees assert that Appellants coerced false testimony from Sinclair.\\n\\nAfter meeting with investigators multiple times, Sinclair submitted to, and passed, a\\n\\npolygraph test three days before Appellees’ first trial, declaring he “did not know anything\\n\\nabout [Buie’s death].” J.A. 1305. SBI then marked him as a suspect in the case and ordered\\n\\nanalysis of his fingerprints at the same time it requested an analysis of Artis’s fingerprints.\\n\\nSinclair then changed his story and testified at Appellees’ 1984 trial that McCollum had\\n\\nconfessed to him the day after Buie’s murder. Sinclair further testified that McCollum and\\n\\nBrown had discussed raping Buie in his presence and that he (Sinclair) had declined to\\n\\nparticipate. 6\\n\\n\\n 6\\n Sinclair was killed in 1990, prior to Appellees’ retrials.\\n\\n 18\\n\\n For their part, Appellants dispute that they should have taken any additional action\\n\\nwith respect to investigating Artis. Appellants further dispute that Richards made a\\n\\nstatement in 1983 to any member of law enforcement that she witnessed Buie’s attack, or\\n\\nthat any Appellant coerced or instructed Sinclair to testify untruthfully at the 1984 trial.\\n\\n II.\\n\\n We review a district court’s denial of summary judgment in the qualified immunity\\n\\ncontext de novo, and we “view all reasonable inferences drawn from the evidence in the\\n\\nlight that is most favorable to the non-moving party.” Smith v. Munday, 848 F.3d 248, 251\\n\\n(4th Cir. 2017) (internal quotation marks omitted); see also Iko v. Shreve, 535 F.3d 225,\\n\\n230 (4th Cir. 2008). To be granted summary judgment, Appellants must prove that there\\n\\nis no genuine dispute of material fact and they are entitled to judgment as a matter of law.\\n\\nFed. R. Civ. P. 56(a).\\n\\n Qualified immunity protects government officials from liability for violations of\\n\\nconstitutional rights so long as they could reasonably believe that their conduct did not\\n\\nviolate clearly established law. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified\\n\\nimmunity protects “all but the plainly incompetent or those who knowingly violate the\\n\\nlaw.” Malley v. Briggs, 475 U.S. 335, 341 (1986). Further, qualified immunity is\\n\\n“immunity from suit rather than a mere defense to liability; and like an absolute immunity,\\n\\nit is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth,\\n\\n472 U.S. 511, 526 (1985) (emphasis omitted). Thus, to the extent a district court’s denial\\n\\nof a claim of qualified immunity turned on an issue of law, it is immediately appealable.\\n\\nSee id. at 530. But if the denial turned on an issue of fact, “we lack jurisdiction to re-weigh\\n\\n 19\\n\\nthe evidence in the record to determine whether material factual disputes preclude\\n\\nsummary disposition.” Iko, 535 F.3d at 234. Thus, the question before us is whether, “if\\n\\nwe take the facts as the district court gives them to us, and we view those facts in the light\\n\\nmost favorable to [Appellees],” Appellants are still entitled to qualified immunity.\\n\\nWilliams v. Strickland, 917 F.3d 763, 768 (4th Cir. 2019) (footnote omitted).\\n\\n III.\\n\\n Appellants raise a host of challenges to the district court’s denial of summary\\n\\njudgment, asserting that the district court: (1) misapplied the summary judgment standard\\n\\nby failing to parse Appellants’ liability individually; (2) erred in denying Appellants’\\n\\nclaims of qualified immunity as to Appellees’ false arrest and malicious prosecution\\n\\nclaims; and (3) erred in denying Appellants’ claims of qualified immunity as to Appellees’\\n\\ndue process claims. We address each issue in turn. 7\\n\\n A.\\n\\n Individualized Liability Analysis\\n\\n Appellants assert that the district court broadly misapplied the test for qualified\\n\\nimmunity because it did not identify “what each individual officer knew, when he knew it,\\n\\nand what specific actions he did or did not take.” Appellants’ Br. 20. Critically, Appellants\\n\\ndid not argue before the district court that individual officers were entitled to qualified\\n\\n\\n 7\\n Appellants also argue that the district court erred in denying Appellants’ motion\\nfor summary judgment for Appellant Sealey in his official capacity. Because we affirm\\nthe district court’s denial of summary judgment for the individual capacity claims against\\nAppellant Sealey, we decline to exercise pendant jurisdiction over the official capacity\\nclaim.\\n\\n 20\\n\\nimmunity based on the officer’s individual actions, but instead asserted collective qualified\\n\\nimmunity defenses. In other words, Appellants fault the district court for not identifying\\n\\nand resolving in their favor individual liability arguments that Appellants themselves did\\n\\nnot raise.\\n\\n It is true that the defense of qualified immunity is a defense for individual\\n\\ndefendants. But it would be counterproductive to require a district court to wade through\\n\\nconvoluted issues of fact at this stage in order to determine individual liability, where: (1)\\n\\nAppellants did not raise individualized qualified immunity arguments before the district\\n\\ncourt but instead asserted collective qualified immunity defenses; (2) the facts have yet to\\n\\nbe resolved, and the district court only determined whether qualified immunity applies as\\n\\na matter of law; 8 and (3) Appellees alleged that Appellants acted in concert to violate their\\n\\nconstitutional rights. Accordingly, the district court did not improperly apply the test for\\n\\nqualified immunity by waiting to parse the liability of each individual defendant as it relates\\n\\nto each claim until the facts are determined.\\n\\n B.\\n\\n False Arrest and Malicious Prosecution Claims\\n\\n Appellants next challenge the district court’s denial of Appellants’ motions for\\n\\nsummary judgment as to Appellees’ false arrest and malicious prosecution claims. The\\n\\n\\n\\n 8\\n See J.A. 330 (“In light of plaintiffs’ allegations that the defendants worked in\\nconcert to deny plaintiffs’ their constitutional rights as well as the specifics regarding the\\ngrouping of SBI and Robeson County defendants to engage in different aspects of\\nplaintiffs’ interrogations, arrests, and investigations, the Court will not at this time attempt\\nto parse the liability of each individual defendant as it relates to each claim.”).\\n 21\\n\\ndistrict court denied Appellants’ motions after concluding that, viewing the facts in the\\n\\nlight most favorable to Appellees, Appellees presented evidence that their confessions were\\n\\nfabricated or coerced, which was sufficient to create a genuine issue of material fact as to\\n\\nwhether Appellants violated Appellees’ clearly established constitutional rights not to be\\n\\narrested in the absence of probable cause and on the basis of a coerced confession. This\\n\\ndispute of fact precluded a ruling on qualified immunity.\\n\\n Appellants argue that they did not violate Appellees’ constitutional rights because\\n\\nprobable cause existed for Appellees’ arrest as a matter of law. Alternatively, Appellants\\n\\nargue that even if they did violate Appellees’ constitutional rights, the officers could have\\n\\nbelieved that their conduct was lawful because those constitutional rights were not clearly\\n\\nestablished by existing precedent. For the reasons that follow, we affirm the district court’s\\n\\ndenial of summary judgment as to Appellees’ false arrest and malicious prosecution claims.\\n\\n 1.\\n\\n Whether Appellants’ Violated Appellees’ Constitutional Rights\\n\\n Appellants argue that they did not violate Appellees’ constitutional rights for three\\n\\nreasons: (1) North Carolina’s collateral estoppel doctrine prevents relitigation of the\\n\\nconstitutional issues alleged; (2) McCollum’s attorney’s admission at McCollum’s 1991\\n\\ntrial judicially estops McCollum from challenging the voluntariness of his confession; and\\n\\n(3) and Appellants had probable cause to arrest Appellees as a matter of law. We address\\n\\neach in turn.\\n\\n\\n\\n\\n 22\\n\\n a.\\n\\n Collateral Estoppel\\n\\n Appellants contend that North Carolina’s collateral estoppel doctrine prevents\\n\\nAppellees from relitigating in their § 1983 case whether probable cause existed to support\\n\\ntheir arrests and whether their confessions were voluntary. Specifically, Appellants argue\\n\\nthat under North Carolina law, (1) Appellees’ criminal convictions -- though later vacated,\\n\\nand despite Appellees receiving pardons of innocence from the governor -- conclusively\\n\\nestablish that probable cause existed for their arrest; and (2) the state court judges’ rulings\\n\\non the Appellees’ motions to suppress their confessions in their criminal cases conclusively\\n\\nestablish that the confessions were voluntary. We will address these collateral estoppel\\n\\nissues in turn, starting with whether Appellees’ criminal convictions conclusively establish\\n\\nthat there was probable cause for Appellees’ arrests.\\n\\n i.\\n\\n Criminal Convictions\\n\\n At the outset, it is necessary to address how state collateral estoppel doctrine bears\\n\\non this federal § 1983 action. Pursuant to 28 U.S.C. § 1738, federal courts must give full\\n\\nfaith and credit to state court judgments. Additionally, “Congress has specifically required\\n\\nall federal courts to give preclusive effect to state-court judgments whenever the courts of\\n\\nthe State from which the judgments emerged would do so.” Allen v. McCurry, 449 U.S.\\n\\n90, 96 (1980). Accordingly, and as the district court noted in its opinion, “[t]he doctrines\\n\\nof res judicata and collateral estoppel apply to § 1983 actions, and federal courts must\\n\\nafford preclusive effect to issues which have been decided by state courts when the courts\\n\\n 23\\n\\nof that state would do so.” J.A. 311; see also Migra v. Warren City Sch. Dist. Bd. of Educ.,\\n\\n465 U.S. 75, 85 (1984) (“We hold, therefore, that petitioner’s state-court judgment in this\\n\\nlitigation has the same claim preclusive effect in federal court that the judgment would\\n\\nhave in the Ohio state courts.”).\\n\\n Appellants contend that North Carolina courts would find that Appellees’ criminal\\n\\nconvictions, even though they have since been vacated, collaterally estop Appellees from\\n\\nchallenging whether Appellants had probable cause to arrest. See Griffis v. Sellars, 20 N.C.\\n\\n315 (1838) (holding that conviction is conclusive evidence of probable cause, even where\\n\\n“a contrary verdict and judgment be given in a higher Court”); see also Overton v. Combs,\\n\\n108 S.E. 357, 358 (N.C. 1921) (holding that a conviction establishes the existence of\\n\\nprobable cause, even if the conviction “is thereafter set aside or reversed on appeal or other\\n\\nruling in the orderly progress of the cause”).\\n\\n Contrary to Appellants’ assertion that this rule “remains settled North Carolina law\\n\\nto this day,” Appellants’ Br. 26, North Carolina courts have repeatedly called this rule into\\n\\nquestion. See Myrick v. Cooley, 371 S.E.2d 492, 495 (N.C. Ct. App. 1988) (“We question\\n\\nthe continuing validity of this rule . . . which allows a District Court judgment which is\\n\\nsubsequently overturned upon a trial de novo in Superior Court to insulate the arresting\\n\\nofficer from liability . . . .”); see also Simpson v. Sears, Roebuck & Co., 752 S.E.2d 508,\\n\\n509 (N.C. Ct. App. 2013) (“We note . . . that this doctrine has eroded somewhat over\\n\\ntime.”). Accordingly, there is reason to doubt whether it remains good law that even a\\n\\n\\n\\n\\n 24\\n\\nvacated conviction precludes an individual from challenging whether there was probable\\n\\ncause for his/her arrest in North Carolina. 9\\n\\n We need not resolve these uncertainties in North Carolina law, however, because to\\n\\nthe extent it remains the rule that reversed or vacated judgments are afforded preclusive\\n\\neffect on the issue of probable cause, and assuming this is a matter of state collateral\\n\\nestoppel doctrine and not a pleading requirement for state malicious prosecution claims (as\\n\\nargued by Appellees), we conclude that North Carolina courts would refuse to give\\n\\npreclusive effect to a judgment that was obtained improperly and later invalidated.\\n\\n As Appellants concede, there is an exception to the rule that even reversed or\\n\\nvacated judgments are afforded preclusive effects on the issue of probable cause: “where a\\n\\nconviction [is] procured by ‘fraud or other unfair means,’ it [does] not conclusively\\n\\n\\n\\n 9\\n Additionally, we question whether a state’s collateral estoppel doctrine can require\\na federal court to afford preclusive effects to an invalid state judgment in a federal § 1983\\ncase. Such an outcome would conflict with the Supreme Court’s holding in Heck v.\\nHumphrey, which specifically permits a plaintiff to proceed with a § 1983 action when a\\nconviction has been reversed, expunged, or declared invalid:\\n\\n We hold that, in order to recover damages for allegedly\\n unconstitutional conviction or imprisonment, or for other harm\\n caused by actions whose unlawfulness would render a\\n conviction or sentence invalid, a § 1983 plaintiff must prove\\n that the conviction or sentence has been reversed on direct\\n appeal, expunged by executive order, declared invalid by a\\n state tribunal authorized to make such determination, or called\\n into question by a federal court’s issuance of a writ of habeas\\n corpus, 28 U.S.C. § 2254.\\n\\n512 U.S. 477, 486–87 (1994) (footnote omitted). Because we conclude that North Carolina\\ncourts would not afford preclusive effect to Appellees’ vacated convictions in this case, we\\nneed not resolve this question.\\n 25\\n\\nestablish probable cause.” Simpson, 752 S.E.2d at 509 (quoting Myrick, 371 S.E.2d at\\n\\n495). Appellants assert, however, that the fraud exception only applies when convictions\\n\\nwere appealed to the superior court and reversed. Thus, Appellants argue, the exception\\n\\ndoes not apply in this case, where Appellees’ convictions were affirmed on direct appeal\\n\\nbut later vacated in the superior court on a motion for appropriate relief.\\n\\n Appellants cite two cases to support this assertion: Moore v. Winfield, 178 S.E. 605\\n\\n(N.C. 1935), and Simpson v. Sears, Roebuck & Co., 752 S.E.2d at 510. But neither case\\n\\njustifies reading the fraud exception so narrowly. Both Moore and Simpson involved\\n\\nconvictions that were reversed on direct appeal, and both courts dealt with the facts before\\n\\nthem. Neither Moore nor Simpson display an intention to exclude convictions that were\\n\\nvacated or otherwise invalidated on the merits in ways other than reversal in the superior\\n\\ncourt. And Appellants do not provide any reason (much less a compelling reason) to\\n\\nexplain why North Carolina’s collateral estoppel doctrine would differentiate between\\n\\ninvalidations on the merits.\\n\\n Accordingly, the most sensible reading of the fraud exception is the one espoused\\n\\nby the North Carolina Court of Appeals in Myrick: “[I]n the absence of a showing that the\\n\\nDistrict Court conviction of Myrick was obtained improperly, the conviction establishes,\\n\\nas a matter of law, the existence of probable cause for his arrest and defeats both his federal\\n\\nand state claims for false arrest or imprisonment.” 371 S.E.3d at 495 (emphasis supplied).\\n\\nIn this case, Appellants have sufficiently alleged that their now-vacated state court\\n\\nconvictions were obtained improperly. Accordingly, collateral estoppel does not preclude\\n\\nAppellants from challenging the probable cause for their arrests.\\n\\n 26\\n\\n ii.\\n\\n Voluntariness of Confessions\\n\\n Next, Appellants assert that Appellees are estopped from disputing the voluntariness\\n\\nof their confessions in this § 1983 action because the state court judges presiding over\\n\\nAppellees’ criminal trials ruled that the confessions were voluntary.\\n\\n Appellants’ contentions are meritless. Appellees’ criminal convictions were\\n\\nvacated. Apart from the use of criminal convictions to establish probable cause, which is\\n\\nnot relevant to Appellants’ voluntariness argument, North Carolina collateral estoppel\\n\\ncases uniformly require a judgment to be valid to have preclusive effect. See, e.g., North\\n\\nCarolina v. Jones, 808 S.E.2d 280, 283 (N.C. Ct. App. 2017) (“The doctrine of collateral\\n\\nestoppel means simply that when an issue of ultimate fact has once been determined by a\\n\\nvalid and final judgment, that issue cannot again be litigated between the same parties in\\n\\nany future lawsuit.” (emphasis supplied) (internal quotation marks omitted)); North\\n\\nCarolina v. Spargo, 652 S.E.2d 50, 53 (N.C. Ct. App. 2007) (“Under the doctrine of\\n\\ncollateral estoppel, an issue of ultimate fact, once determined by a valid and final judgment,\\n\\ncannot again be litigated between the same parties in any future lawsuit.” (emphasis\\n\\nsupplied) (citation omitted)). Accordingly, collateral estoppel does not prevent Appellees\\n\\nfrom litigating the voluntariness of their confessions because there is no valid and final\\n\\njudgment on the issue.\\n\\n\\n\\n\\n 27\\n\\n b.\\n\\n Judicial Estoppel\\n\\n Appellants further allege that Appellee McCollum’s attorney’s judicial admission\\n\\nat McCollum’s 1991 trial -- that McCollum “was there” during the rape and murder, see\\n\\nAppellants’ Br. 48 -- judicially estops McCollum from challenging the voluntariness of his\\n\\nconfession in his § 1983 action.\\n\\n Of note, Appellants point to no case holding judicial estoppel to apply in comparable\\n\\ncircumstances, and as we have made clear, the doctrine of judicial estoppel “must be\\n\\napplied with caution” and only “in the narrowest of circumstances.” Lowery v. Stovall, 92\\n\\nF.3d 219, 224 (4th Cir. 1996). In Lowery, we applied judicial estoppel to preclude a\\n\\nplaintiff from asserting in a § 1983 case that he did not “maliciously attack[]” a police\\n\\nofficer -- a claim that was directly contrary to that plaintiff’s guilty plea related to the\\n\\nunderlying encounter, during which he specifically admitted that he “maliciously attacked”\\n\\nthe officer. Id. at 221, 223. There are significant differences between (1) estopping a\\n\\nlitigant from basing a civil claim on factual allegations that are directly contrary to specific\\n\\nadmissions made by that litigant during a guilty plea for the same conduct; and (2) binding\\n\\na party to statements previously made by counsel in a criminal trial involving the death\\n\\npenalty, especially when the conviction resulting from that criminal trial was subsequently\\n\\nvacated.\\n\\n The Lowery court listed three elements “that have to be met before courts will apply\\n\\njudicial estoppel”: (1) “the party sought to be estopped must be seeking to adopt a position\\n\\nthat is inconsistent with a stance taken in prior litigation”; (2) “the prior inconsistent\\n\\n 28\\n\\nposition must have been accepted by the court”; and (3) “the party sought to be estopped\\n\\nmust have ‘intentionally misled the court to gain unfair advantage.’” 92 F.3d at 224\\n\\n(quoting Tenneco Chems., Inc. v. William T. Burnett & Co., 691 F.2d 658, 665 (4th Cir.\\n\\n1982)). Appellants make no attempt to show that all three factors are present in this case.\\n\\nNor could they: significantly, there is no evidence that counsel, either during the 1991 trial\\n\\nor in this § 1983 case, “intentionally misled the court to gain unfair advantage.” Id.\\n\\nMcCollum’s counsel’s attempt during the 1991 trial to “make a case for mercy in order to\\n\\nsave his client’s life,” Appellees’ Br. 38, does not judicially estop McCollum from\\n\\nchallenging the voluntariness of his confessions in this case.\\n\\n c.\\n\\n Probable Cause as a Matter of Law\\n\\n Finally, Appellants assert that they did not violate Appellees’ constitutional rights\\n\\nbecause they had probable cause to arrest Appellees as a matter of law, on the basis of\\n\\nAppellees’ confessions and subsequent incriminating statements. The district court\\n\\nrejected this argument, concluding that whether Appellants had probable cause to arrest\\n\\nAppellees turns on whether Appellees’ confessions were coerced or fabricated, which is a\\n\\nfactual question.\\n\\n As this court has explained, “[p]robable cause is determined by a ‘totality-of-the\\n\\ncircumstances’ approach.” Smith v. Munday, 848 F.3d 248, 253 (4th Cir. 2017) (quoting\\n\\nIllinois v. Gates, 462 U.S. 213, 230 (1983)). “While probable cause requires more than\\n\\nbare suspicion, it requires less than that evidence necessary to convict.” Id. (quoting United\\n\\nStates v. Gray, 137 F.3d 765, 769 (4th Cir. 1998)). “It is an objective standard of\\n\\n 29\\n\\nprobability that reasonable and prudent persons apply in everyday life.” Id. (quoting Gray,\\n\\n137 F.3d at 769). In making this inquiry, we consider only the information the officers had\\n\\nat the time of the arrest. See id.; Graham v. Gagnon, 831 F.3d 176, 184 (4th Cir. 2016).\\n\\nAdditionally, “we do not examine the subjective beliefs of the arresting officers to\\n\\ndetermine whether they thought that the facts constituted probable cause.” Munday, 848\\n\\nF.3d at 253 (quoting Graham, 831 F.3d at 185).\\n\\n Viewing the facts recited by the district court in the light most favorable to\\n\\nAppellees, there is no basis for us to conclude that Appellants had probable cause to arrest\\n\\nAppellees as a matter of law. A coerced or fabricated confession that police know to be\\n\\ncoerced -- as Appellees assert here, based on the use of coercive interrogation tactics, the\\n\\nage and intellectual disabilities of Appellees, and the inconsistencies between the\\n\\nconfessions and the crime scene -- does not give police probable cause to arrest the suspect\\n\\nas a matter of law. See Ashcraft v. Tennessee, 322 U.S. 143, 155 (1944) (“The Constitution\\n\\nof the United States stands as a bar against the conviction of any individual in an American\\n\\ncourt by means of a coerced confession.”). For the same reason, McCollum’s confession\\n\\nimplicating Brown, if police knew it was coerced or fabricated, did not provide probable\\n\\ncause for Appellants to arrest Brown. 10 Accordingly, the district court did not err in\\n\\n\\n\\n 10\\n Appellants also assert that even if McCollum’s confession did not establish\\nprobable cause on its own, McCollum’s subsequent statements to police and others\\ncorroborated his first confession and “reaffirmed” the probable cause. Appellants’ Br. 65.\\nThese statements -- to the extent they are not factual disputes that must be determined by\\na jury -- occurred after McCollum was arrested and were not “information the officers had\\nat the time” of the arrest. Munday, 848 F.3d at 253. As a result, any subsequent\\nincriminating statements could not “cure” arrests made without probable cause.\\n 30\\n\\nconcluding that Appellants did not have probable cause as a matter of law to arrest\\n\\nAppellees, and whether Appellees’ confessions were coerced or fabricated must be\\n\\ndetermined by a jury.\\n\\n 2.\\n\\n Whether Appellants’ Constitutional Rights Were Clearly Established\\n\\n Appellants next assert that even if they did violate Appellees’ constitutional rights,\\n\\nthe officers could have believed that their conduct was lawful because those constitutional\\n\\nrights were not clearly established by existing precedent. Specifically, Appellants argue\\n\\nthat because “[t]here is no bright-line rule for determining whether a suspect’s statements\\n\\nwere given voluntarily,” Appellants’ Br. 69 (quoting United States v. Rutherford, 555 F.3d\\n\\n190, 195 (6th Cir. 2009)), they cannot be liable for allegedly coercing Appellees’\\n\\nconfessions because qualified immunity ensures that officers will be liable “only for\\n\\n‘transgressing bright lines.’” Id. (quoting Doe v. Broderick, 225 F.3d 440, 453 (4th Cir.\\n\\n2000)).\\n\\n Appellants are correct that “[o]fficials are not liable for bad guesses in gray areas;\\n\\nthey are liable for transgressing bright lines.” Iko v. Shreve, 535 F.3d 225, 238 (4th Cir.\\n\\n2008) (quoting Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992)). However, there\\n\\ndoes not need to be a case directly on point for a right to be clearly established, and the fact\\n\\nthat the voluntariness of a confession is a fact-specific inquiry does not excuse Appellants\\n\\nfrom abiding by clearly established law regarding coercive police conduct. “Clearly\\n\\nestablished . . . includes not only already specifically adjudicated rights, but those\\n\\nmanifestly included within more general applications of the core constitutional principle\\n\\n 31\\n\\ninvoked.” Id. at 240 (quoting Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir. 1992)). “In\\n\\nthe end, the lodestar for whether a right was clearly established is whether the law ‘gave\\n\\nthe officials fair warning that their conduct was unconstitutional.’” Id. at 238 (quoting\\n\\nRidpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 313 (4th Cir. 2006)).\\n\\n There can be no reasonable dispute that it was clearly established in 1983 that an\\n\\narrest in the absence of probable cause was a violation of an individual’s Fourth\\n\\nAmendment rights, and that a coerced confession could not form the basis of probable\\n\\ncause for an arrest. See Ybarra v. Illinois, 444 U.S. 85, 91 (1979); Ashcraft, 322 U.S. at\\n\\n155. Further, existing precedent in 1983 would have made it clear to a reasonable officer\\n\\nthat the police conduct at issue here, viewed in the light most favorable to Appellees, was\\n\\ncoercive.\\n\\n For example, in Ashcraft, the Supreme Court concluded that questioning a suspect\\n\\ncontinuously for 36 hours, without rest or sleep, was “so inherently coercive that its very\\n\\nexistence is irreconcilable with the possession of mental freedom by a lone suspect against\\n\\nwhom its full coercive force is brought to bear.” 322 U.S. at 154. To be sure, Appellees’\\n\\ninterrogations did not span 36 hours, but Appellees were questioned late in the night and\\n\\ninto the very early morning without sleep. And unlike Appellees, the suspect in Ashcraft\\n\\nwas a 45 year old man with no intellectual disability or other characteristic that would make\\n\\nhim particularly vulnerable to coercion. Of note, the Supreme Court’s decision in Ashcraft\\n\\nestablished that an interrogation can be coercive solely due to the length of the questioning,\\n\\n\\n\\n\\n 32\\n\\neven when there is no allegation that the questions or other police conduct was itself\\n\\ncoercive, or that any violence was involved. 11\\n\\n Then, in Haley v. Ohio, the Supreme Court held that it was coercive to question a\\n\\n15 year old boy alone for about five hours, with no parent or lawyer present and without\\n\\nadvising the suspect of his right to counsel. 12 332 U.S. 596, 598 (1948). This was true\\n\\neven though the suspect’s written confession included a statement about his right not to\\n\\nmake the statement. As the Court held:\\n\\n What transpired would make us pause for careful inquiry if a\\n mature man were involved. . . . A 15-year old lad, questioned\\n through the dead of night by relays of police, is a ready victim\\n of the inquisition. Mature men possibly might stand the ordeal\\n from midnight to 5 a.m. But we cannot believe that a lad of\\n tender years is a match for the police in such a contest.\\n\\nId. at 599–600.\\n\\n And in Ferguson v. Boyd, 566 F.2d 873 (4th Cir. 1977), we concluded that a\\n\\nconfession was involuntary when it was coerced by psychological means and induced by a\\n\\npromise that the suspect’s girlfriend would be released from jail if he confessed. As we\\n\\nnoted, “It has long been recognized that involuntary confessions may be exacted as a result\\n\\nof mental coercion as well as physical abuse.” Id. at 877.\\n\\n\\n\\n\\n 11\\n Appellants make much of the fact that the officers “did not hit or beat” Appellees\\nduring the interrogation. Appellants’ Br. 5, 40. As Ashcraft makes clear, violence is not\\nthe only indicator of coercive police interrogations. And, in any event, Appellants did\\nthreaten Appellees, including with the specter of the gas chamber.\\n 12\\n Although the suspect alleged that he had been beaten by the officers, the Supreme\\nCourt did not consider this evidence. See Haley, 332 U.S. at 597–98.\\n\\n 33\\n\\n Significantly, each of the police strategies found to be coercive in these cases were\\n\\npresent in Appellees’ interrogations. Viewing the evidence in the light most favorable to\\n\\nAppellees, (1) the interrogations took place very late in the night into the early morning;\\n\\n(2) Appellees were 19 and 15, both with serious intellectual disabilities; (3) Appellants\\n\\nthreatened Appellees with the gas chamber and yelled racial epithets at them; (4) neither\\n\\nBrown nor McCollum was aware of his rights; and (5) both Appellees were “tricked,” J.A.\\n\\n600, into signing the confessions drafted by Appellants. Appellees’ “background[s] and\\n\\nexperience[s],” such as their age, mental disabilities, and lack of prior interactions with the\\n\\npolice, are highly “relevant to the totality of the circumstances” of the interrogation. United\\n\\nStates v. Giddins, 858 F.3d 870, 885 (4th Cir. 2017); see also United States v. Ayesh, 702\\n\\nF.3d 162, 168 (4th Cir. 2012) (“[P]ersonal attributes,” such as “age, education, intelligence,\\n\\nand mental state” are relevant considerations). And, similar to Ferguson, Appellees alleged\\n\\nthat Appellants induced their confessions using a number of promises and threats: that\\n\\nAppellees could go home if they signed the Miranda waivers and written confessions,\\n\\nwhich officers suggested were merely paperwork for their release; that Appellants would\\n\\narrest Appellees’ mother; and that Appellees would be taken to “the gas chamber” if they\\n\\ndid not confess, J.A. 319, 321.\\n\\n Appellants rely heavily on our decision in United States v. Wertz, 625 F.2d 1128\\n\\n(4th Cir. 1980), to argue that the alleged actions of the officers here did not render\\n\\nAppellees’ confessions involuntary. According to Appellants, Wertz stands for the\\n\\nproposition that “a gun . . . drawn on a suspect shortly before the suspect made an\\n\\nincriminating statement [does] not render the statement involuntary.” Appellants’ Br. 43.\\n\\n 34\\n\\nThus, Appellants’ argument goes, if drawing a gun on a suspect is not coercive, neither is\\n\\nthreatening a suspect with the gas chamber. But this was not at all our holding in Wertz.\\n\\nThere, we emphasized that whether a confession is involuntary “is a question of fact to be\\n\\ndetermined from ‘the totality of all the surrounding circumstances[,] both the\\n\\ncharacteristics of the accused and the details of the interrogation.’” Wertz, 625 F.2d at\\n\\n1134 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). This determination\\n\\nmay not “rest solely upon any one circumstance.” Id. We did not hold, as Appellants\\n\\nsuggest, that an officer drawing a gun on a suspect to extract a confession could not result\\n\\nin an involuntary confession -- quite the opposite is true. See Beecher v. Alabama, 389\\n\\nU.S. 35 (1967) (holding a confession involuntary where the suspect was ordered at\\n\\ngunpoint to confess or be killed). The circumstances in Wertz bear no resemblance to the\\n\\nfacts alleged by Appellees here. 13\\n\\n In light of all of the above, the circumstances of Appellees’ interrogations easily fall\\n\\nwithin the bounds of coercive police conduct outlined in Ashcraft, Haley, Ferguson, and\\n\\nother established precedent as “so inherently coercive that its very existence is\\n\\n\\n 13\\n In Wertz, an undercover officer posing as an illegal drug trafficker attempted to\\npurchase a bag of heroin from a suspect, but instead purchased a $1,300 bag of sugar. The\\nundercover officer -- still appearing to be a drug trafficker, as far as the suspect knew --\\nconfronted the suspect about the “rip-off” in a parking garage. A fight ensued, and the\\nundercover officer drew his gun. At some point during the encounter, the suspect\\n“confessed” that the undercover officer’s confidential informant was to blame for the sugar.\\nWe concluded that the sole fact that the undercover officer drew his gun during the fight\\nwas not sufficient to establish that the suspect’s statements were involuntary, where\\n“[n]one of the factors found important on the voluntariness issue, other than that one fact,\\nwas present,” and “[t]he encounter had none of the aspects of a police interrogation, with\\nits inherent compulsions.” Wertz, 625 F.2d at 1134, 1135.\\n\\n 35\\n\\nirreconcilable with the possession of mental freedom” by Appellees. Ashcraft, 322 U.S. at\\n\\n154. Therefore, the district court did not err by concluding that Appellees’ right not to be\\n\\narrested without probable cause based on a coerced and fabricated confession was clearly\\n\\nestablished in 1983, and the district court was correct to deny summary judgment to\\n\\nAppellants on the basis of qualified immunity in light of the numerous material disputes of\\n\\nfact.\\n\\n C.\\n\\n Due Process Claims\\n\\n Appellants next challenge the district court’s denial of summary judgment as to\\n\\nAppellees’ due process claims. Appellees assert that Appellants, in order to shield their\\n\\nwrongful conduct related to the coerced or fabricated confessions, “hid exculpatory\\n\\ninformation and blocked the production of evidence that showed [Appellees’] innocence.”\\n\\nAppellees’ Br. 11. Specifically, Appellees allege that Appellants violated the Brady\\n\\ndoctrine 14 by failing to disclose (1) evidence that another suspect, Roscoe Artis, committed\\n\\nsimilar crimes in the same area and during the same time period as Buie’s rape and murder;\\n\\nand (2) a statement to police by Mary McLean Richards that she witnessed Artis attack\\n\\nBuie the night Buie went missing. In addition to these Brady-based claims, Appellees\\n\\nfurther assert that Appellants violated their due process rights by (1) coercing a witness,\\n\\nL.P. Sinclair, to testify falsely; (2) coercing Appellees to confess; and (3) failing in bad\\n\\nfaith to adequately investigate the crime.\\n\\n\\n 14\\n Brady v. Maryland, 373 U.S. 83 (1963).\\n\\n 36\\n\\n Appellants moved for summary judgment as to Appellees’ due process claims on\\n\\nthe basis of qualified immunity. The district court denied summary judgment upon\\n\\nconcluding that the facts, viewed in the light most favorable to Appellees, demonstrated\\n\\nthat Appellants violated Appellees’ clearly established due process right “not to be\\n\\ndeprived of liberty as a result of the fabrication of evidence by a government officer acting\\n\\nin an investigating capacity.” J.A. 322 (quoting Massey v. Ojaniit, 759 F.3d 343, 354 (4th\\n\\nCir. 2014)).\\n\\n Appellants assert that the district court’s denial of summary judgment was erroneous\\n\\nbecause each of Appellees’ due process claims fails as a matter of law. In the alternative,\\n\\nAppellants argue that even if they did violate Appellees’ constitutional rights, the officers\\n\\ncould have believed that their conduct was lawful because those constitutional rights were\\n\\nnot clearly established by existing precedent. For the reasons that follow, we affirm the\\n\\ndistrict court’s denial of summary judgment as to Appellees’ due process claims.\\n\\n 1.\\n\\n Claims for Suppression of Evidence\\n\\n Appellees allege that Appellants violated the Brady doctrine by suppressing two\\n\\ntypes of information that implicated Artis, rather than Appellees, as Buie’s attacker: (1)\\n\\nevidence that Artis committed similar crimes in the same area and during the same time\\n\\nperiod as Buie’s rape and murder, and that Appellants considered Artis a suspect in Buie’s\\n\\ncase; and (2) a statement to police by Richards that she witnessed Artis attack Buie the\\n\\nnight Buie went missing. Appellants assert that neither type of evidence establishes a claim\\n\\nof a Brady violation as a matter of law.\\n\\n 37\\n\\n a.\\n\\n Evidence Connecting Artis as a Suspect\\n\\n In Brady v. Maryland, 373 U.S. at 87, the Supreme Court held that the government’s\\n\\nsuppression of material exculpatory evidence violates the Due Process Clause. “Evidence\\n\\nis material if there is a ‘reasonable probability that its disclosure would have produced a\\n\\ndifferent result.’” United States v. Parker, 790 F.3d 550, 558 (4th Cir. 2015) (quoting\\n\\nUnited States v. Bartko, 728 F.3d 327, 340 (4th Cir. 2013)). “This standard does not require\\n\\na showing that a jury more likely than not would have returned a different verdict. Rather,\\n\\nthe ‘reasonable probability’ standard is satisfied if ‘the likelihood of a different result is\\n\\ngreat enough to undermine confidence in the outcome of the trial,’” id. (quoting Barkto,\\n\\n728 F.3d at 340), or the suppression “cast[s] serious doubt on the proceedings’ integrity,”\\n\\nOwens v. Baltimore City State’s Attorneys Office, 767 F.3d 379, 398 (4th Cir. 2014).\\n\\n Unlike prosecutors, however, police officers commit a constitutional violation only\\n\\nwhen they suppress exculpatory evidence in bad faith. Owens, 767 F.3d at 396 & n.6, 401.\\n\\nAccordingly, as the district court correctly noted, Appellees’ Brady-based due process\\n\\nclaims hinge on the jury determining that Appellants suppressed material Brady\\n\\nexculpatory evidence in bad faith. Additionally, to prove a due process violation,\\n\\nAppellees must prove both but-for causation and proximate causation -- in other words,\\n\\nthat the alleged wrongful act(s) caused Appellees’ loss of liberty and the loss of liberty was\\n\\na reasonably foreseeable result of the act. See Massey, 759 F.3d at 354–56; Evans v.\\n\\nChalmers, 703 F.3d 636, 647–48 (4th Cir. 2012).\\n\\n\\n\\n 38\\n\\n Appellants assert that they did not violate Brady by failing to disclose information\\n\\nlinking Artis as a suspect of the crime because (1) Artis’s criminal history and the facts of\\n\\nhis conviction for Joanne Brockman’s rape and murder were publicly available\\n\\ninformation; (2) the district attorney who prosecuted Appellees had also prosecuted Artis,\\n\\nso he was aware of Artis’s criminal history; and (3) attorney Earl Strickland, a member of\\n\\nAppellees’ defense team in their October 1984 trial, was also Artis’s attorney in the August\\n\\n1984 Brockman trial. As Appellants argue, this means that Artis’s criminal history and the\\n\\ndetails of Artis’s 1984 trial and conviction were well known to Appellees at the time of\\n\\ntheir first trial, and “there is no Brady violation where ‘the defense already possesses the\\n\\nevidence.’” Appellants’ Br. 57 (quoting United States v. Higgs, 663 F.3d 726, 735 (4th\\n\\nCir. 2011)). Further, Appellants argue that they did not suppress Artis’s criminal history\\n\\nfrom the district attorney since he was already aware of it.\\n\\n Appellants’ arguments are unconvincing. Appellees’ claim is not that Appellants\\n\\nshould have turned over Artis’s rap sheet, but that once the officers identified Artis as a\\n\\nsuspect -- particularly in light of other evidence that pointed to Artis as the perpetrator of\\n\\nthe crime -- they were obligated to disclose this exculpatory information. The fact that\\n\\nArtis’s rap sheet was public information, the district attorney was aware of Artis’s crimes,\\n\\nor that a member of the defense team was an attorney for Artis is not enough to disclose to\\n\\nAppellees that the officers, in the course of their investigation, recognized the similarities\\n\\nbetween Buie’s murder and Artis’s crimes and identified Artis as a suspect. Indeed, the\\n\\nfact that the same district attorney prosecuted Artis in a different rape and murder case does\\n\\nnot mean that district attorney should have known that Artis was a suspect in Buie’s rape\\n\\n 39\\n\\nand murder. It is the officers’ job to investigate the crime and identify suspects, not the\\n\\nprosecutor’s. The same is true for Attorney Strickland: the connection between Artis and\\n\\none of Appellees’ counsel is not enough to show that Appellees possessed the relevant\\n\\ninformation about Artis. Even if Strickland noticed the similarities between the crimes, he\\n\\nhad no way to know that Appellants had considered Artis a suspect in Buie’s murder, which\\n\\nis the key evidence Appellants failed to disclose.\\n\\n Accordingly, the district court did not err in denying Appellants’ motion for\\n\\nsummary judgment as to their failure to disclose evidence that Artis committed similar\\n\\ncrimes in the same area and during the same time period as Buie’s rape and murder, and\\n\\nthat Artis was considered a suspect in the crime.\\n\\n b.\\n\\n Richards’s Statement\\n\\n As for Richards’s statement to Detectives Sealey and Locklear that she had seen\\n\\nArtis attack Buie the night Buie went missing, we conclude that the evidence was clearly\\n\\nmaterial, and a reasonable jury could conclude that it was suppressed by Appellants in bad\\n\\nfaith. Indeed, the stark difference between what Richards alleges she told the officers and\\n\\nthe two officers’ interview notes supports the conclusion that if Appellees’ allegations are\\n\\ntrue, this evidence was suppressed and obscured by Appellants. Neither set of interview\\n\\nnotes from the officers mentions Artis, or the fact that Richards was an eye-witness to the\\n\\ncrime. Instead, Detective Sealey’s notes say Richards reported that she saw “three (3)\\n\\nIndian males at Hardin’s Grocery at this time and one (1) of the Indian males was talking\\n\\n\\n\\n 40\\n\\nrough to [Buie],” J.A. 1595, whereas Detective Locklear’s notes indicate only that the\\n\\ninterview generated “negative results,” id. at 326.\\n\\n Appellants argue that Appellees cannot establish a Brady violation on these facts\\n\\nbecause Appellants disclosed that they interviewed Richards, and Detective Sealey’s notes\\n\\nindicated that Richards stated she had seen Buie shortly before the crime with “three (3)\\n\\nIndian males,” one of which was “talking rough” to Buie. J.A. 1595. But viewing the facts\\n\\nin the light most favorable to Appellees, Sealey’s notes egregiously mischaracterized the\\n\\ncontent of Richards’s statement. This was insufficient to insulate Appellants from liability\\n\\nfor a Brady violation, even if the fact of Richards’s interview was disclosed.\\n\\n Here, if Appellees’ assertions are true, Appellants intentionally fabricated,\\n\\nobscured, and failed to disclose the most relevant and exculpatory evidence in the case: the\\n\\nstatement from an eye-witness affirmatively identifying a different suspect as Buie’s\\n\\nattacker. Accordingly, Appellees adequately alleged that Appellants failed to comply with\\n\\ntheir Brady disclosure obligations, and that they did so in bad faith.\\n\\n 2.\\n\\n Remaining Due Process Claims\\n\\n In addition to the Brady-based claims, Appellees raise three due process claims: (1)\\n\\nAppellants unconstitutionally coerced a witness, L.P. Sinclair, to testify falsely; (2)\\n\\nAppellees’ confessions were unconstitutionally coerced (which violated Appellees’ right\\n\\nto due process in addition to their Fourth Amendment rights); and (3) Appellants in bad\\n\\nfaith failed to adequately investigate the crime. Appellants argue that each of these claims\\n\\nfails as a matter of law. For the reasons explained below, Appellants are incorrect.\\n\\n 41\\n\\n a.\\n\\n Coerced, False Testimony by L.P. Sinclair\\n\\n Appellees assert that Appellants coached or coerced Sinclair to testify falsely, which\\n\\nSinclair agreed to do only after Appellants identified Sinclair as a suspect and requested\\n\\nhis fingerprints. As Appellees allege, “[t]his, combined with Sinclair’s youth (age 16),\\n\\nalong with the other evidence of [Appellants’] bad faith, suggest that Sinclair’s statements\\n\\nwere coerced or fabricated.” Appellees’ Br. 52 (citation omitted).\\n\\n Viewing the facts in the light most favorable to Appellees, Appellants’ assertion\\n\\nthat Sinclair’s testimony was voluntary as a matter of law is unsupported by the record.\\n\\nAnd whether any Appellants were present on October 5, 1984, when Sinclair changed his\\n\\nstory to implicate McCollum, is a question of fact for a jury to determine.\\n\\n b.\\n\\n Coerced Confessions by Appellees\\n\\n In its decision, the district court suggested that the use of Appellees’ confessions, if\\n\\ncoerced, may violate Appellees’ rights to due process. To the extent Appellees assert a due\\n\\nprocess claim on this basis, Appellants’ arguments that these confessions were voluntary\\n\\nas a matter of law fail for the same reasons explained above. Further, like the district court,\\n\\nwe conclude that Appellees’ incarceration was a clearly foreseeable result of the alleged\\n\\nfabrication of Appellees’ confessions. Accordingly, if Appellees’ allegations are true, they\\n\\nhave demonstrated both but-for and proximate causation. See Massey, 759 F.3d at 354–\\n\\n56.\\n\\n\\n\\n 42\\n\\n c.\\n\\n Failure to Adequately Investigate\\n\\n Finally, Appellees assert that Appellants violated Appellees’ right to due process by\\n\\nfailing to sufficiently investigate Artis and Sinclair in connection with Buie’s rape and\\n\\nmurder. This includes Appellants’ failure to test whether Artis or Sinclair’s fingerprints\\n\\nmatched the latent print found on the beer can at the crime scene.\\n\\n Appellants are correct that in general, there is no independent constitutional right to\\n\\ninvestigation of a third party. See Sattler v. Johnson, 857 F.2d 224, 227 (4th Cir. 1988)\\n\\n(stating that there is no constitutional right “as a member of the public at large and as a\\n\\nvictim to have the defendants criminally prosecuted”); see also Baker v. McCollan, 443\\n\\nU.S. 137, 146 (1979) (stating that law enforcement have no constitutional duty to\\n\\n“investigate independently every claim of innocence” or “perform an error-free\\n\\ninvestigation”). However, Appellees do not state a claim based on an independent right to\\n\\nan investigation, but rather that Appellants’ failure to investigate was a result of their bad-\\n\\nfaith suppression of evidence. Indeed, the district court concluded that Appellees’ claims\\n\\ncould establish a due process violation if the jury concluded that Appellants’ actions after\\n\\nAppellees’ arrests -- including failing to adequately investigate Artis and the crime scene\\n\\nand failing to disclose exculpatory evidence -- were done in bad faith in order to shield\\n\\nAppellants’ wrongful acts related to Appellees’ coerced or fabricated confessions. We find\\n\\nno error in the district court’s conclusion.\\n\\n\\n\\n\\n 43\\n\\n 3.\\n\\n Whether the Constitutional Rights were Clearly Established\\n\\n Finally, Appellants challenge the district court’s denial of summary judgment by\\n\\nasserting that even if they violated Appellees’ due process rights, “the officers are entitled\\n\\nto summary judgment because, given the existing case law during the relevant time period,\\n\\nit was not ‘beyond debate’ that the specific actions taken by the officers violated the\\n\\nConstitution.” Appellants’ Br. 70 (citation omitted). This is the full extent of Appellants’\\n\\nargument on this point. Appellants include no explanation for how they believe the district\\n\\ncourt erred.\\n\\n But there can be no reasonable dispute, as the district court correctly concluded, that\\n\\nit was clearly established in 1983 that an individual has a constitutional right not to be\\n\\ndeprived of liberty as a result of the intentional, bad-faith withholding of evidence by an\\n\\ninvestigating officer. See Jean v. Collins, 221 F.3d 656, 663 (4th Cir. 2000) (holding that\\n\\nit was clearly established in 1982 that when police intentionally withhold or destroy\\n\\nevidence, or otherwise act in bad faith, their actions violate the due process rights of a\\n\\ncriminal defendant). The same is true for an individual’s constitutional right not to be\\n\\ndeprived of liberty as a result of the fabrication of evidence by an investigating officer. See\\n\\nWashington v. Wilmore, 407 F.3d 274, 283–84 (4th Cir. 2005) (holding that officer’s\\n\\nalleged fabrication of evidence, if true, violated clearly established constitutional right).\\n\\nFinally, as the district court concluded, “it has long been established that when law\\n\\nenforcement acts in reckless disregard of the truth and makes a false statement or material\\n\\nomission that is necessary to a finding of probable cause, the resulting seizure will be\\n\\n 44\\n\\ndetermined to be unreasonable,” J.A. 317 (citing Franks v. Delaware, 438 U.S. 154, 157\\n\\n(1978)), and “it is established that a conviction obtained through the use of false evidence,\\n\\nknown to be such by representatives of the State, must fall under the Fourteenth\\n\\nAmendment,” id. (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)).\\n\\n It was beyond debate at the time of the events in this case that Appellees’\\n\\nconstitutional rights not to be imprisoned and convicted based on coerced, falsified, and\\n\\nfabricated evidence or confessions, or to have material exculpatory evidence suppressed,\\n\\nwere clearly established.\\n\\n IV.\\n\\n For all of the reasons detailed herein, the district court did not err in denying\\n\\nsummary judgment to Appellants. The judgment of the district court is\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 45\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4421265/\", \"author_raw\": \"Niemeyer joined. Judge Richardson wrote a separate opinion concurring\"}, {\"author\": \"RICHARDSON, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"RICHARDSON, Circuit Judge, concurring in part and dissenting in part:\\n\\n I agree that the Plaintiffs’ Fourth Amendment claims should survive summary\\n\\njudgment and that their Fifth Amendment claims arising from their confessions and Mary\\n\\nRichards’s statement should likewise go to trial. However, on the remaining due process\\n\\nclaims—the officers’ failure to investigate Artis, the coercive questioning of Sinclair, and\\n\\nthe failure to disclose their impressions of Artis as a suspect—the Plaintiffs fail to articulate\\n\\nthe violation of a constitutional right. And even if they could, these alleged due process\\n\\nrights were not clearly established in 1983. I would therefore reverse on these remaining\\n\\nFifth Amendment claims.\\n\\n\\n\\n\\n 46\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4421265/\", \"author_raw\": \"RICHARDSON, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"NIEMEYER"},"judge2":{"kind":"string","value":"THACKER"},"judge3":{"kind":"string","value":"RICHARDSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":5,"string":"5"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":3,"string":"3"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4644012/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":1,"string":"1"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: J. Duane GILLIAM, Guardian of the Estate of Leon Brown; Raymond C. Tarlton, Guardian Ad Litem for Henry Lee McCollum, Plaintiffs - Appellees, and Henry Lee McCollum; Leon Brown; Geraldine Brown Ransom, Guardian of Leon Brown; Kimberly Pinchbeck, as Limited Guardian and Conservator of the Estate of Henry Lee McCollum, Plaintiffs, v. Kenneth SEALEY, Both Individually and in His Official Capacity as the Sheriff of Robeson County; Robert E. Price, Administrator C.T.A. of the Estate of Joel Garth Locklear, Sr., Defendants - Appellants, and Robeson County; Town of Red Springs; Kenneth Snead; Joel Garth Locklear; Larry Floyd; Leroy Allen ; Estate of Luther Haggins; Geraldine Britt Haggins, as Administratix/Executrix of the Estate of Luther Haggins; Paul Canady, Administrator C.T.A. of the Estate of Luther Haggins; Fayetteville Observer-Times ; Associated Press; WTVD Television LLC ; Charlotte Observer, Defendants. J. Duane Gilliam, Guardian of the Estate of Leon Brown; Raymond C. Tarlton, Guardian Ad Litem for Henry Lee McCollum, Plaintiffs - Appellees, and Henry Lee McCollum; Leon Brown; Geraldine Brown Ransom, Guardian of Leon Brown; Kimberly Pinchbeck, as Limited Guardian and Conservator of the Estate of Henry Lee McCollum, Plaintiffs, v. Kenneth Snead; Leroy Allen, Defendants - Appellants, and Robeson County; Town of Red Springs; Kenneth Sealey, Both Individually and in His Official Capacity as the Sheriff of Robeson County; Joel Garth Locklear; Larry Floyd; Estate of Luther Haggins; Geraldine Britt Haggins, as Administratix/Executrix of the Estate of Luther Haggins; Paul Canady, Administrator C.T.A. of the Estate of Luther Haggins; Robert E. Price, Administrator C.T.A. of the Estate of Joel Garth Locklear, Sr.; Fayetteville Observer-Times ; Associated Press; WTVD Television LLC ; Charlotte Observer, Defendants.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-07-30\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1366\n\n\nJ. DUANE GILLIAM, Guardian of the Estate of Leon Brown; RAYMOND C.\nTARLTON, Guardian Ad Litem for Henry Lee McCollum,\n\n Plaintiffs - Appellees,\n\n and\n\nHENRY LEE MCCOLLUM; LEON BROWN; GERALDINE BROWN RANSOM,\nGuardian of Leon Brown; KIMBERLY PINCHBECK, as limited guardian and\nconservator of the estate of Henry Lee McCollum,\n\n Plaintiffs,\n\n v.\n\nKENNETH SEALEY, both individually and in his official capacity as the Sheriff of\nRobeson County; ROBERT E. PRICE, Administrator C.T.A. of the Estate of Joel\nGarth Locklear, Sr.,\n\n Defendants - Appellants,\n\n and\n\nROBESON COUNTY; TOWN OF RED SPRINGS; KENNETH SNEAD; JOEL\nGARTH LOCKLEAR; LARRY FLOYD; LEROY ALLEN; ESTATE OF LUTHER\nHAGGINS; GERALDINE BRITT HAGGINS, as Administratix/Executrix of the\nEstate of Luther Haggins; PAUL CANADY, Administrator C.T.A of the Estate of\nLuther Haggins; FAYETTEVILLE OBSERVER-TIMES; ASSOCIATED PRESS;\nWTVD TELEVISION LLC; CHARLOTTE OBSERVER,\n\n Defendants.\n\n No. 18-1402\n\n\nJ. DUANE GILLIAM, Guardian of the Estate of Leon Brown; RAYMOND C.\nTARLTON, Guardian Ad Litem for Henry Lee McCollum,\n\n Plaintiffs - Appellees,\n\n and\n\nHENRY LEE MCCOLLUM; LEON BROWN; GERALDINE BROWN RANSOM,\nGuardian of Leon Brown; KIMBERLY PINCHBECK, as limited guardian and\nconservator of the estate of Henry Lee McCollum,\n\n Plaintiffs,\n\n v.\n\nKENNETH SNEAD; LEROY ALLEN,\n\n Defendants - Appellants,\n\n and\n\nROBESON COUNTY; TOWN OF RED SPRINGS; KENNETH SEALEY, both\nindividually and in his official capacity as the Sheriff of Robeson County; JOEL\nGARTH LOCKLEAR; LARRY FLOYD; ESTATE OF LUTHER HAGGINS;\nGERALDINE BRITT HAGGINS, as Administratix/Executrix of the Estate of\nLuther Haggins; PAUL CANADY, Administrator C.T.A of the Estate of Luther\nHaggins; ROBERT E. PRICE, Administrator C.T.A. of the Estate of Joel Garth\nLocklear, Sr.; FAYETTEVILLE OBSERVER-TIMES; ASSOCIATED PRESS;\nWTVD TELEVISION LLC; CHARLOTTE OBSERVER,\n\n Defendants.\n\n\nAppeals from the United States District Court for the Eastern District of North Carolina, at\nRaleigh. Terrence W. Boyle, Chief District Judge. (5:15-cv-00451-BO)\n\n\nArgued: March 20, 2019 Decided: July 30, 2019\n\n 2\n\nBefore NIEMEYER, THACKER, and RICHARDSON, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Thacker wrote the opinion, in which Judge\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: J. Duane GILLIAM, Guardian of the Estate of Leon Brown; Raymond C. Tarlton, Guardian Ad Litem for Henry Lee McCollum, Plaintiffs - Appellees, and Henry Lee McCollum; Leon Brown; Geraldine Brown Ransom, Guardian of Leon Brown; Kimberly Pinchbeck, as Limited Guardian and Conservator of the Estate of Henry Lee McCollum, Plaintiffs, v. Kenneth SEALEY, Both Individually and in His Official Capacity as the Sheriff of Robeson County; Robert E. Price, Administrator C.T.A. of the Estate of Joel Garth Locklear, Sr., Defendants - Appellants, and Robeson County; Town of Red Springs; Kenneth Snead; Joel Garth Locklear; Larry Floyd; Leroy Allen ; Estate of Luther Haggins; Geraldine Britt Haggins, as Administratix/Executrix of the Estate of Luther Haggins; Paul Canady, Administrator C.T.A. of the Estate of Luther Haggins; Fayetteville Observer-Times ; Associated Press; WTVD Television LLC ; Charlotte Observer, Defendants. J. Duane Gilliam, Guardian of the Estate of Leon Brown; Raymond C. Tarlton, Guardian Ad Litem for Henry Lee McCollum, Plaintiffs - Appellees, and Henry Lee McCollum; Leon Brown; Geraldine Brown Ransom, Guardian of Leon Brown; Kimberly Pinchbeck, as Limited Guardian and Conservator of the Estate of Henry Lee McCollum, Plaintiffs, v. Kenneth Snead; Leroy Allen, Defendants - Appellants, and Robeson County; Town of Red Springs; Kenneth Sealey, Both Individually and in His Official Capacity as the Sheriff of Robeson County; Joel Garth Locklear; Larry Floyd; Estate of Luther Haggins; Geraldine Britt Haggins, as Administratix/Executrix of the Estate of Luther Haggins; Paul Canady, Administrator C.T.A. of the Estate of Luther Haggins; Robert E. Price, Administrator C.T.A. of the Estate of Joel Garth Locklear, Sr.; Fayetteville Observer-Times ; Associated Press; WTVD Television LLC ; Charlotte Observer, Defendants.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-07-30\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 18-1366\\n\\n\\nJ. DUANE GILLIAM, Guardian of the Estate of Leon Brown; RAYMOND C.\\nTARLTON, Guardian Ad Litem for Henry Lee McCollum,\\n\\n Plaintiffs - Appellees,\\n\\n and\\n\\nHENRY LEE MCCOLLUM; LEON BROWN; GERALDINE BROWN RANSOM,\\nGuardian of Leon Brown; KIMBERLY PINCHBECK, as limited guardian and\\nconservator of the estate of Henry Lee McCollum,\\n\\n Plaintiffs,\\n\\n v.\\n\\nKENNETH SEALEY, both individually and in his official capacity as the Sheriff of\\nRobeson County; ROBERT E. PRICE, Administrator C.T.A. of the Estate of Joel\\nGarth Locklear, Sr.,\\n\\n Defendants - Appellants,\\n\\n and\\n\\nROBESON COUNTY; TOWN OF RED SPRINGS; KENNETH SNEAD; JOEL\\nGARTH LOCKLEAR; LARRY FLOYD; LEROY ALLEN; ESTATE OF LUTHER\\nHAGGINS; GERALDINE BRITT HAGGINS, as Administratix/Executrix of the\\nEstate of Luther Haggins; PAUL CANADY, Administrator C.T.A of the Estate of\\nLuther Haggins; FAYETTEVILLE OBSERVER-TIMES; ASSOCIATED PRESS;\\nWTVD TELEVISION LLC; CHARLOTTE OBSERVER,\\n\\n Defendants.\\n\\n No. 18-1402\\n\\n\\nJ. DUANE GILLIAM, Guardian of the Estate of Leon Brown; RAYMOND C.\\nTARLTON, Guardian Ad Litem for Henry Lee McCollum,\\n\\n Plaintiffs - Appellees,\\n\\n and\\n\\nHENRY LEE MCCOLLUM; LEON BROWN; GERALDINE BROWN RANSOM,\\nGuardian of Leon Brown; KIMBERLY PINCHBECK, as limited guardian and\\nconservator of the estate of Henry Lee McCollum,\\n\\n Plaintiffs,\\n\\n v.\\n\\nKENNETH SNEAD; LEROY ALLEN,\\n\\n Defendants - Appellants,\\n\\n and\\n\\nROBESON COUNTY; TOWN OF RED SPRINGS; KENNETH SEALEY, both\\nindividually and in his official capacity as the Sheriff of Robeson County; JOEL\\nGARTH LOCKLEAR; LARRY FLOYD; ESTATE OF LUTHER HAGGINS;\\nGERALDINE BRITT HAGGINS, as Administratix/Executrix of the Estate of\\nLuther Haggins; PAUL CANADY, Administrator C.T.A of the Estate of Luther\\nHaggins; ROBERT E. PRICE, Administrator C.T.A. of the Estate of Joel Garth\\nLocklear, Sr.; FAYETTEVILLE OBSERVER-TIMES; ASSOCIATED PRESS;\\nWTVD TELEVISION LLC; CHARLOTTE OBSERVER,\\n\\n Defendants.\\n\\n\\nAppeals from the United States District Court for the Eastern District of North Carolina, at\\nRaleigh. Terrence W. Boyle, Chief District Judge. (5:15-cv-00451-BO)\\n\\n\\nArgued: March 20, 2019 Decided: July 30, 2019\\n\\n 2\\n\\nBefore NIEMEYER, THACKER, and RICHARDSON, Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Thacker wrote the opinion, in which Judge\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2968,"cells":{"id":{"kind":"number","value":4644407,"string":"4,644,407"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee, v. Victor Oyewumi OLOYEDE, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Babatunde Emmanuel Popoola, A/K/A Emmanuel Popoola, A/K/A Tunde Popoola, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Mojisola Tinuola Popoola, A/K/A Mojisola Oluwakemi Tin Popoola, A/K/A Moji T. Popoola, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Gbenga Benson Ogundele, A/K/A Benson Ogundele, Defendant - Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Victor Oloyede"},"decision_date":{"kind":"string","value":"2019-07-31"},"docket_number":{"kind":"string","value":"17-4102; 17-4186; 17-4191; 17-4207"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Niemeyer, King, Wynn\", \"parties\": \"\", \"opinions\": [{\"author\": \"NIEMEYER, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 17-4102\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nVICTOR OYEWUMI OLOYEDE,\\n\\n Defendant - Appellant.\\n\\n\\n No. 17-4186\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nBABATUNDE EMMANUEL POPOOLA, a/k/a Emmanuel Popoola, a/k/a Tunde\\nPopoola,\\n\\n Defendant - Appellant.\\n\\n\\n No. 17-4191\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n v.\\n\\fMOJISOLA TINUOLA POPOOLA, a/k/a Mojisola Oluwakemi Tin Popoola, a/k/a\\nMoji T. Popoola,\\n\\n Defendant - Appellant.\\n\\n\\n No. 17-4207\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nGBENGA BENSON OGUNDELE, a/k/a Benson Ogundele,\\n\\n Defendant - Appellant.\\n\\n\\nAppeals from the United States District Court for the District of Maryland, at Greenbelt.\\nPaul W. Grimm, District Judge. (8:15-cr-00277-PWG-3) (8:15-cr-00277-PWG-5) (8:15-\\ncr-00277-PWG-7) (8:15-cr-00277-PWG-1)\\n\\n\\nArgued: December 13, 2018 Decided: July 31, 2019\\n\\n\\nBefore NIEMEYER, KING, and WYNN Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge King\\nand Judge Wynn joined.\\n\\nARGUED: Justin Eisele, SEDDIQ LAW FIRM, Upper Marlboro, Maryland; John O.\\nIweanoge, II, THE IWEANOGES’ FIRM, PC, Washington, D.C.; Richard Alan\\nSeligman, LAW OFFICE OF RICHARD SELIGMAN, Washington, D.C.; Gerald Ruter,\\nLAW OFFICES OF GERALD C. RUTER, P.C., Baltimore, Maryland, for Appellants.\\nThomas Patrick Windom, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,\\nMaryland, for Appellee. ON BRIEF: Robert K. Hur, United States Attorney, Baltimore,\\nMaryland, Jennifer R. Sykes, Assistant United States Attorney, OFFICE OF THE\\nUNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.\\n\\n\\n 2\\n\\fNIEMEYER, Circuit Judge:\\n\\n The four defendants in these appeals, who were charged as participants in a\\n\\nconspiracy that involved numerous others, were tried together and convicted of\\n\\nconspiracy to commit wire fraud and related offenses based on an extensive online dating\\n\\nfraud scheme that induced elderly victims to transfer money to the defendants’ bank\\n\\naccounts based on postured romantic relationships. The district court found that the\\n\\ndefendants obtained over $2 million in this manner and sentenced the four defendants\\n\\nvariously from 18 months’ to 234 months’ imprisonment. From the judgments against\\n\\nthem, the defendants filed these appeals raising numerous pretrial, trial, and sentencing\\n\\nissues — most significantly, an issue relating to a pretrial motion to suppress and an issue\\n\\nrelating to the government’s use at trial of charts offered under Rule of Evidence 1006.\\n\\nAfter considering all of the issues raised, we affirm.\\n\\n\\n I\\n\\n In May 2015, a grand jury indicted 10 individuals, including the four defendants in\\n\\nthese appeals — Gbenga Benson Ogundele; his wife, Mojisola Tinuola Popoola; her\\n\\nbrother, Babatunde Emmanuel Popoola; and Victor Oyewumi Oloyede — for their\\n\\nparticipation in a widespread online dating fraud scheme that resulted in numerous\\n\\nelderly victims suffering substantial financial losses. According to the indictment, from\\n\\n2011 through 2015, coconspirators initiated sham romantic relationships with at least 17\\n\\nelderly victims throughout the country by searching online dating websites and then used\\n\\nfraudulent representations to convince the victims to transfer money to bank accounts\\n\\n\\n 3\\n\\fcontrolled by the defendants. The defendants were charged with transferring this money\\n\\nthrough various facilities to promote the conspiracy and to hide the nature and source of\\n\\nthe funds. Based on these allegations, the indictment charged all defendants with\\n\\nconspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, and conspiracy to\\n\\ncommit money laundering, in violation of 18 U.S.C. § 1956(h). In addition, it charged\\n\\nOgundele, Babatunde, and Oloyede with aggravated identify theft, in violation of 18\\n\\nU.S.C. § 1028A. The district court scheduled two separate trials for the 10 indicted\\n\\ndefendants, and the government’s case against Ogundele, Mojisola, Babatunde, and\\n\\nOloyede proceeded to trial first, beginning in October 2016.\\n\\n At trial, the government’s evidence included testimony from 11 victims of the\\n\\nfraud scheme, as well as a daughter of a victim who had recently died. The victims\\n\\ntestified as to how they had formed what they thought were meaningful long-distance\\n\\nrelationships with a person they met online and had eventually transferred significant\\n\\nsums of money for various reasons as requested by the person, only to realize later that\\n\\nthey had been defrauded. These victims’ testimony showed that, between November\\n\\n2012 and April 2014, five of them sent a total of approximately $140,000 to two business\\n\\nbank accounts controlled by Ogundele; that, during a six-month period in 2012, five of\\n\\nthem sent a total of $138,000 to two bank accounts controlled by Oloyede, with all but\\n\\n$3,000 of that going to a single business account; and that, in July 2014, one victim\\n\\ndeposited $5,000 in cash into an account in the name of Mojisola, who then promptly\\n\\nwrote a check for the same amount to a company controlled by her husband, Ogundele.\\n\\nIn addition, the government’s evidence showed that some of this and other money was\\n\\n 4\\n\\ftransferred to accounts controlled by Babatunde. For instance, on the same day in\\n\\nOctober 2012 that one victim deposited $20,000 into Oloyede’s business account,\\n\\n$10,000 was transferred from that account to an account that Babatunde controlled but\\n\\nwas in the name of one of his sisters.\\n\\n The government also presented testimony from employees of Bank of America,\\n\\nCapital One, and Wells Fargo regarding activity in approximately a dozen of the\\n\\ndefendants’ bank accounts, almost all of which had been closed by the banks during the\\n\\ncourse of the conspiracy. Bank records not only showed numerous wire transfers and\\n\\ncash deposits from the victims who testified but also showed other suspicious large cash\\n\\ndeposits made from States throughout the country. For example, bank records from\\n\\nMojisola’s Bank of America account, which had been closed in August 2014, showed\\n\\nthat it had received significant cash deposits or teller transfers from persons in Florida,\\n\\nNorth Carolina, Georgia, Michigan, and Tennessee and that the funds were then quickly\\n\\nwithdrawn or transferred. The records also showed that Mojisola’s account received\\n\\nseveral large wire transfers in 2011 from her half-brother, Mukhtar Haruna — a Nigerian\\n\\nnational and resident who was indicted with the others but never arraigned. These funds\\n\\nwere then transferred into an account controlled by Mojisola’s husband, Ogundele.\\n\\n Finally, the government presented testimony from numerous FBI agents about\\n\\nevidence recovered from search warrants of the defendants’ homes, phones, and email\\n\\naccounts. FBI agents also testified to post-arrest statements made by Ogundele, Oloyede,\\n\\nand Babatunde. And an FBI forensic accountant created charts detailing certain activity\\n\\n\\n\\n 5\\n\\fin the defendants’ bank accounts from 2011 through 2014 and presented those charts to\\n\\nthe jury at trial.\\n\\n After the government rested and the district court denied the defendants’ motions\\n\\nfor judgment of acquittal, the defendants called a number of witnesses, and Oloyede and\\n\\nBabatunde both testified in their own defense. Generally, their theory of the case was\\n\\nthat Haruna had made them believe that the money coming into their bank accounts was\\n\\nto purchase cars for export to Nigeria, thus blaming Haruna for the entire scheme. They\\n\\nalso placed blame on Ogundele.\\n\\n The jury convicted all four defendants on all counts, and the district court\\n\\nthereafter sentenced Ogundele and Oloyede each to 234 months’ imprisonment,\\n\\nBabatunde to 144 months’ imprisonment, and Mojisola to 18 months’ imprisonment.\\n\\n From the judgments entered against them, the defendants filed these appeals,\\n\\nwhich we then consolidated.\\n\\n\\n II\\n\\n During execution of a search warrant and an arrest warrant at Mojisola’s house,\\n\\nFBI Special Agent Monique Winkis handed Mojisola a locked cell phone that had been\\n\\nfound in her bedroom and asked her, “Could you please unlock your iPhone?” Mojisola\\n\\ntook the phone, entered her passcode, and handed the phone back to Agent Winkis, who\\n\\nthen gave the unlocked phone to a forensic examiner for it to be searched. Agent Winkis\\n\\ndid not ask for the passcode; Mojisola did not reveal the passcode to Agent Winkis; and\\n\\nAgent Winkis did not see Mojisola enter her passcode.\\n\\n\\n 6\\n\\f Mojisola filed a motion to suppress the contents of her cell phone in the district\\n\\ncourt, contending that Agent Winkis’s request to open her phone and her compliance with\\n\\nthat request without having been given Miranda warnings violated her Fifth Amendment\\n\\nright against self-incrimination. The district court denied the motion on the ground that\\n\\nMojisola’s entry of a passcode to unlock her phone was not a “communicative response”\\n\\nby her and therefore was not a testimonial statement subject to Miranda. It also found\\n\\nthat Agent Winkis’s request was not “coercive or threatening” and that Mojisola’s\\n\\ncompliance was “voluntary.”\\n\\n Mojisola now contends on appeal that, because she was in custody and not\\n\\ninformed of her Miranda rights, she “could not knowingly and voluntarily [have]\\n\\nwaive[d] her rights against self-incrimination.” Moreover, she argues that entering her\\n\\npasscode was a communicative act that amounted to self-incrimination.\\n\\n The government contends that Mojisola’s physical action of typing her passcode\\n\\ninto a phone was not a testimonial statement that was subject to Miranda and that, in any\\n\\nevent, the evidence obtained from her cell phone was nonetheless admissible under\\n\\nUnited States v. Patane, 542 U.S. 630 (2004) (plurality opinion), because her action was\\n\\nvoluntary.\\n\\n We thus are presented with the question of whether a person in custody, who has\\n\\nnot been given Miranda warnings, was compelled to incriminate herself in violation of\\n\\nthe Fifth Amendment when she voluntarily, pursuant to an officer’s request, used her\\n\\npasscode to open her cell phone but did not disclose the passcode.\\n\\n\\n\\n 7\\n\\f The Fifth Amendment provides that no person “shall be compelled in any criminal\\n\\ncase to be a witness against himself.” U.S. Const. amend. V. Therefore, a violation\\n\\noccurs when “the accused is [1] compelled [2] to make a testimonial communication\\n\\n[3] that is incriminating.” United States v. Sweets, 526 F.3d 122, 127 (4th Cir. 2007)\\n\\n(quoting Fisher v. United States, 425 U.S. 391, 408 (1976)). While a testimonial\\n\\ncommunication is most often in verbal or written form, it may also be made by an act. Id.\\n\\nBut to be a testimonial communication, the act must “relate a factual assertion or disclose\\n\\ninformation,” Doe v. United States, 487 U.S. 201, 210 (1988); it must “express the\\n\\ncontents of [the person’s] mind,” id. at 210 n.9.\\n\\n In this case, Mojisola is faced with the task of demonstrating that her simple act of\\n\\ntyping in the passcode out of the FBI’s agent’s view was a testimonial communication to\\n\\nthe agent. Certainly, Mojisola has not shown that her act communicated her cell phone’s\\n\\nunique passcode. Unlike a circumstance, for example, in which she gave the passcode to\\n\\nthe agent for the agent to enter, here she simply used the unexpressed contents of her\\n\\nmind to type in the passcode herself. See United States v. Hubbell, 530 U.S. 27, 43\\n\\n(2000) (distinguishing “surrender[ing] the key to a strongbox,” which is not\\n\\ncommunicative, from “telling an inquisitor the combination to a wall safe,” which is\\n\\ncommunicative).\\n\\n Mojisola argues nonetheless that “[o]nly through her communicative conduct of\\n\\nunlocking the iPhone was the government able to ascertain that it belonged to her” and\\n\\nthat her act was therefore a testimonial communication. Yet, the ownership of the phone\\n\\n\\n\\n 8\\n\\fwas neither an issue before the district court at the suppression hearing nor an issue\\n\\nbefore the jury.\\n\\n In any event, even were we to accept Mojisola’s argument that she made a\\n\\ntestimonial communication when she unlocked her phone, it would provide no\\n\\nmeaningful help to her defense because the fruit of that voluntary communication, even\\n\\nthough made without a Miranda warning, would nonetheless be admissible into evidence.\\n\\nIn Patane, officers failed to provide a Miranda warning to a suspect before asking him\\n\\nthe location of his firearm, which he then disclosed. 542 U.S. at 635. The plurality\\n\\nopinion in Patane deemed the firearm admissible, reasoning that “the Miranda rule is a\\n\\nprophylactic employed to protect against violations of the Self-Incrimination Clause” and\\n\\nthat the Clause “is not implicated by the admission into evidence of the physical fruit of a\\n\\nvoluntary statement.” Id. at 636 (emphasis added). The plurality therefore saw “no\\n\\njustification for extending the Miranda rule to this context,” explaining that “[t]he Clause\\n\\ncannot be violated by the introduction of nontestimonial evidence obtained as a result of\\n\\nvoluntary statements.” Id. at 636–38; see also id. at 644–45 (Kennedy, J., concurring)\\n\\n(agreeing with the plurality that “evidence obtained following an unwarned interrogation”\\n\\nis admissible). Accordingly, the admission into evidence of data from Mojisola’s phone\\n\\n— the fruit of her opening it — “present[ed] no risk that . . . coerced statements (however\\n\\ndefined) [would] be used against [her] at a criminal trial.” Id. at 643 (emphasis added).\\n\\n We conclude therefore that the district court did not err in denying Mojisola’s\\n\\nmotion to suppress.\\n\\n\\n\\n 9\\n\\f III\\n\\n Several defendants contend that the district court abused its discretion in admitting\\n\\ninto evidence under Federal Rule of Evidence 1006 a series of charts detailing selected\\n\\ndeposits made into their bank accounts. Ogundele and Oloyede note that the charts\\n\\nincluded deposits related to a “subjective list” of suspected victims and represented an\\n\\n“editorialized subsection of transactions.” They also maintain that many of the charts’\\n\\nentries, including those reflecting many of the cash deposits, were never proven to be\\n\\nrelated to fraudulent activity, but that admitting the charts into evidence implied that\\n\\nevery entry was fraudulent. Babatunde contends that the chart relating to his bank\\n\\naccount was erroneously admitted because there was no direct evidence that the account\\n\\nwas connected to fraudulent activity.\\n\\n In creating the charts introduced against Ogundele and Oloyede, FBI Forensic\\n\\nAccountant David Rutledge included selected deposits that had been made into the bank\\n\\naccounts consistent with the government’s theory of which deposits were tied to illegal\\n\\nactivity. For example, with respect to Ogundele’s accounts, while Rutledge included all\\n\\ncash deposits and all ATM deposits to the extent that bank records did not identify\\n\\nwhether it was a cash or check deposit, he included wire transfers only to the extent that\\n\\nthe bank statement identified the name of the sender and that name was on a list provided\\n\\nto him by the case agent. Similarly, he included check deposits only to the extent that the\\n\\ncheck was written by an individual on the list and out-of-state teller transfers only to the\\n\\nextent that a receipt associated with the transfer was included as an attachment in a batch\\n\\nof emails that Rutledge was provided.\\n\\n 10\\n\\f We agree with Ogundele and Oloyede that the charts relating to their accounts\\n\\nfailed to comport with Rule of Evidence 1006 because of their selectivity. They did not\\n\\nfully represent the accounts that they were purportedly summarizing. Rule 1006\\n\\nprovides:\\n\\n The proponent may use a summary, chart, or calculation to prove the\\n content of voluminous writings, recordings, or photographs that cannot be\\n conveniently examined in court. The proponent must make the originals or\\n duplicates available for examination or copying, or both, by other parties at\\n a reasonable time and place. And the court may order the proponent to\\n produce them in court.\\n\\nFed. R. Evid. 1006 (emphasis added). This rule authorizes the admission of charts into\\n\\nevidence that serve “as a surrogate for underlying voluminous records that would\\n\\notherwise be admissible into evidence,” thereby “reduc[ing] the volume of written\\n\\ndocuments that are introduced into evidence.” United States v. Janati, 374 F.3d 263, 272\\n\\n(4th Cir. 2004) (emphasis added). Stated otherwise, “the chart itself is admitted as\\n\\nevidence in order to give the jury evidence of the underlying documents,” id. at 273, and\\n\\ntherefore it must be an objectively accurate summarization of the underlying documents,\\n\\nnot a skewed selection of some of the documents to further the proponent’s theory of the\\n\\ncase, see id. at 272. “In this respect, Rule 1006 summary charts are distinguishable from\\n\\nother charts and summaries that may be presented under Federal Rule of Evidence 611(a)\\n\\nto facilitate the presentation and comprehension of evidence already in the record.” Id.\\n\\n(emphasis added). Rule 611(a) charts are not evidence themselves; they are used “merely\\n\\nto aid the jury in its understanding of the evidence that has already been admitted,” by,\\n\\nfor example, “reveal[ing] inferences drawn in a way that would assist the jury.” Id.\\n\\n\\n 11\\n\\f It is apparent that the government in this case was not using the charts as surrogate\\n\\nevidence offered in lieu of voluminous underlying bank records, but rather was seeking to\\n\\nhelp the jury understand how various related records demonstrated a pattern of suspicious\\n\\nactivity engaged in by the defendants. Thus, while the charts could have been shown to\\n\\nthe jury under Rule 611(a), it was improper to have admitted them into evidence under\\n\\nRule 1006. Nonetheless, in the circumstances of this case, we are confident that the error\\n\\ndid not affect the defendants’ substantial rights, particularly as the same information in\\n\\nthe same form could have been shown to the jury under Rule 611(a).\\n\\n But Ogundele and Oloyede argue further that their right to a fair trial was\\n\\nprejudiced because the government cherry-picked individual records, unfairly spinning\\n\\nthe facts. This argument, however, ignores the role of a trial, where each side selects the\\n\\nevidence to be presented to the jury. Each side can challenge facts and respond to the\\n\\nother’s facts. In this case, in creating the charts, the government applied criteria to help\\n\\npresent its theory of the case, and those criteria were clearly detailed to the jury. The\\n\\ndefendants were thus free to cross-examine the government’s witnesses about the\\n\\nsoundness of the selection, just as if the charts had been shown to the jury under Rule\\n\\n611(a).\\n\\n Babatunde contends with respect to the chart admitted under Rule 1006 for his\\n\\nbank account that, even though the chart did summarize all non-payroll deposits\\n\\ninvolving more than $1,000, the admission was erroneous because there was no direct\\n\\nevidence that the particular bank account represented by the chart was connected to\\n\\nfraudulent activity. But that objection goes to the relevance of the underlying bank\\n\\n 12\\n\\frecords — not to any requirement for admission of a chart under Rule 1006 — and those\\n\\nrecords were clearly relevant to the alleged money laundering activities and Babatunde’s\\n\\ninvolvement in them.\\n\\n\\n IV\\n\\n Next, Mojisola and Babatunde contend that the district court abused its discretion\\n\\nin denying their motions for a severance. They argue that, by being tried together with\\n\\nOgundele, they were denied the benefit of his testimony because he would not testify at a\\n\\njoint trial but, they believe, would have testified on their behalf had they been tried\\n\\nseparately. They also contend that they were prejudiced by a joint trial because of the\\n\\npossibility that the jury found them guilty by association. In denying this motion, the\\n\\ndistrict court concluded that they did not meet their threshold burden of showing that\\n\\nOgundele would waive his Fifth Amendment privilege and testify if there were a\\n\\nseverance. The court also rejected their argument that the disparity in the amount of\\n\\nevidence relating to them as compared to their codefendants warranted a severance.\\n\\n Federal Rule of Criminal Procedure 8(b) provides that the government may charge\\n\\ndefendants together “if they are alleged to have participated in the same act or\\n\\ntransaction, or in the same series of acts or transactions, constituting an offense or\\n\\noffenses,” while Rule 14 permits the district court to grant a severance if the joinder\\n\\n“appears to prejudice a defendant or the government.” In considering these rules, there is\\n\\n“a preference in the federal system for joint trials of defendants who are indicted\\n\\ntogether.” Zafiro v. United States, 506 U.S. 534, 537 (1993). Indeed, where, as here,\\n\\n\\n 13\\n\\f“defendants properly have been joined under Rule 8(b), a district court should grant a\\n\\nseverance under Rule 14 only if there is a serious risk that a joint trial would compromise\\n\\na specific trial right of one of the defendants, or prevent the jury from making a reliable\\n\\njudgment about guilt or innocence.” Id. at 539.\\n\\n In the case before us, Mojisola and Babatunde did not make the requisite showing.\\n\\nAs to obtaining Ogundele’s testimony, they were required to make a threshold showing\\n\\nthat it was likely “that [Ogundele] would testify at a second trial and waive his Fifth\\n\\nAmendment privilege.” United States v. Parodi, 703 F.2d 768, 779 (4th Cir. 1983).\\n\\nWhile they were not required to establish Ogundele’s willingness to testify at a severed\\n\\ntrial “to an absolute certainty,” they were required at least to show “[a] reasonable\\n\\nprobability . . . that the proffered testimony would, in fact[,] materialize.” Id. They did\\n\\nnot meet this threshold showing, however, conceding that they had no evidence that\\n\\nOgundele would waive his Fifth Amendment privilege. The district court accordingly\\n\\ndid not abuse its discretion in denying the severance motion on this basis.\\n\\n These defendants also contended in the district court that they would be prejudiced\\n\\nby the disparity in evidence against them and the other codefendants and by the “unfair\\n\\nspillover effect on [their] right to a fair trial.” But it would take an exceptional case to\\n\\ngrant a severance on this basis, and they have not made the necessary showing that the\\n\\ncourt abused its discretion. Indeed, we have previously recognized that “[a] defendant is\\n\\nnot entitled to severance merely because . . . the evidence against one defendant is not as\\n\\nstrong as that against the other.” United States v. Akinkoye, 185 F.3d 192, 197 (4th Cir.\\n\\n1999).\\n\\n 14\\n\\f At bottom, this is not one of the “rare” cases where a defendant properly joined\\n\\nunder Rule 8(b) with others has established that a severance was required to preserve his\\n\\nor her right to a fair trial. See United States v. Dinkins, 691 F.3d 358, 368 (4th Cir.\\n\\n2012). Accordingly, we affirm the district court’s denial of Mojisola and Babatunde’s\\n\\nmotions.\\n\\n\\n V\\n\\n Each defendant has raised challenges to evidentiary rulings made by the district\\n\\ncourt during the course of trial. Of course, it is well established that the district court, as\\n\\na trial court, has broad discretion to admit evidence in the management of a trial, and we\\n\\nwill overrule the district court’s evidentiary rulings only when the court has abused its\\n\\nbroad discretion to the prejudice of a party.\\n\\n\\n A\\n\\n First, Mojisola, Babatunde, and Ogundele contend that the district court abused its\\n\\ndiscretion in admitting inculpatory portions of a post-arrest statement given by Ogundele\\n\\nwhile excluding, as untrustworthy hearsay, other portions, including statements tending\\n\\nto exculpate Mojisola and Babatunde.\\n\\n After being arrested and read his Miranda rights, Ogundele agreed to be\\n\\ninterviewed by Special Agent Custer. In his statement, Ogundele said that he ran a used\\n\\ncar business and admitted that he used his business accounts to move money from the\\n\\nUnited States to Nigeria, working with Haruna, his brother-in-law in Nigeria, to do so.\\n\\nWhen shown a statement for one of his business bank accounts that reflected wire\\n\\n 15\\n\\ftransfers from various victims, he admitted that he did not always know the people who\\n\\nwere putting money into his account but stated that he believed they were exploring\\n\\nbusiness opportunities in Nigeria. After making those statements against his interests,\\n\\nOgundele also made statements to exculpate Babatunde and Mojisola. He said,\\n\\n“Babatunde Popoola does not help him with the business at all.” Similarly, he said that\\n\\nhis wife, Mojisola Popoola, was “not involved in the business at all,” but acknowledged\\n\\nthat after one of his accounts had been closed, she had “accepted deposits into her\\n\\naccount at [his] direction.” Nonetheless, he reiterated that she “does not know anything\\n\\nabout the business and [that] no one calls or contacts [her] to deal with the business.”\\n\\n At trial, the district court, applying Federal Rule of Evidence 801(d)(2)(A),\\n\\nallowed the government to introduce into evidence portions of the statement made by\\n\\nOgundele but excluded, as untrustworthy hearsay, the portions in which Ogundele\\n\\nexculpated Babatunde and Mojisola. In finding the exculpatory hearsay portions not\\n\\nsufficiently trustworthy to be admitted, the court explained that Ogundele was motivated\\n\\n“to shift blame away from” his wife and her brother “and onto himself.” The court also\\n\\nnoted “the nature and strength of the government’s proffered evidence.” The court\\n\\nrejected the defendants’ argument that the hearsay portions should be admitted under\\n\\nRule 106, the “rule of completeness,” noting that that rule only applies to written or\\n\\nrecorded statements and that, in any event, it could not be used to overrule explicit\\n\\nhearsay rules.\\n\\n Mojisola now contends that the court abused its discretion, arguing that the portion\\n\\nof the statement made by her husband about her accepting deposits into her account at his\\n\\n 16\\n\\fdirection rendered the entire exculpatory portion admissible under Rule 804(b)(3) as a\\n\\nstatement against Ogundele’s interest. Alternatively, she invokes Rule 807’s residual\\n\\nexception, which requires “equivalent circumstantial guarantees of trustworthiness.”\\n\\nWhile Rule 804(b)(3) does, as a general matter, provide a hearsay exception for\\n\\nstatements made against one’s interest, the particular portion of Ogundele’s statement\\n\\nthat Mojisola seeks to admit barely included any self-inculpatory material and was\\n\\ndirected mostly to shifting responsibility away from his wife. Thus, we conclude that the\\n\\ndistrict court did not abuse its discretion in relying on Ogundele’s motive for exculpating\\n\\nhis wife to find this portion of the statement untrustworthy. See Williamson v. United\\n\\nStates, 512 U.S. 594, 600–01 (1994) (holding that Rule 804(b)(3) “does not allow\\n\\nadmission of non-self-inculpatory statements, even if they are made within a broader\\n\\nnarrative that is generally self-inculpatory”); United States v. Dargan, 738 F.3d 643, 650\\n\\n(4th Cir. 2013) (identifying factors to assess trustworthiness).\\n\\n Ogundele and Babatunde also contend that the district court abused its discretion\\n\\nby not applying a common law rule of completeness to admit Ogundele’s entire post-\\n\\narrest statement. While they recognize that Rule 106 applies only to writings and\\n\\nrecorded statements, they maintain that there is a “still-viable common law on the rule of\\n\\ncompleteness” that should have allowed the entire statement to come in. While we doubt\\n\\nthat a residual common law rule of completeness survives Rule 106’s codification, we\\n\\nhold that any such common law rule cannot be used to justify the admission of\\n\\ninadmissible hearsay. See Fed. R. Evid. 802 (“Hearsay is not admissible unless any of\\n\\n\\n\\n 17\\n\\fthe following provides otherwise: a federal statute; these rules; or other rules prescribed\\n\\nby the Supreme Court”).\\n\\n Accordingly, we conclude that the district court did not abuse its discretion in\\n\\nallowing the government to introduce only portions of Ogundele’s post-arrest statement.\\n\\n\\n B\\n\\n In a similar vein, Babatunde contends that the district court abused its discretion in\\n\\nrestricting him from cross-examining an FBI agent about whether he had made certain\\n\\nexculpatory statements to that agent during his post-arrest interview. He argues that the\\n\\nstatements were not being offered for their truth but for the fact that he made them to the\\n\\nFBI. The district court rejected the argument, noting that if Babatunde wanted to rely on\\n\\nportions of his prior statement, he would have to take the stand and satisfy the\\n\\nrequirements of Rule 801(d)(1)(B) (providing that a statement is not hearsay if the\\n\\ndeclarant testifies and is subject to cross-examination about a prior consistent statement\\n\\nthat is offered to rebut a fabrication charge or to rehabilitate the declarant’s credibility).\\n\\nWe conclude the district court did not abuse its discretion in so ruling.\\n\\n\\n C\\n\\n Next, Babatunde contends that the district court abused its discretion in preventing\\n\\nhim from cross-examining Agent Custer about Custer’s knowledge of a Nigerian named\\n\\n“Marcus” — a man whom Babatunde claims was a car dealer in Nigeria with whom he\\n\\nwas doing legitimate business. The issue arose when counsel for Babatunde, cross-\\n\\nexamining Agent Custer, asked him if he knew to whom “chairman” referred in a\\n\\n 18\\n\\fcommunication in which an indicted coconspirator told Babatunde that the “chairman\\n\\nsaid [you] should give me $3900.” When Custer stated that he could not “answer that\\n\\nquestion with any specificity as [it] relates to this investigation,” Babatunde’s counsel\\n\\nsought to refresh his recollection by handing him a copy of a redacted email that Custer\\n\\nhad sent to the prosecutors describing information found on the coconspirator’s cell\\n\\nphone, including that Marcus’s phone number had been saved in the phone’s contacts\\n\\nunder “chairman.” After counsel attempted to describe the contents of the email, the\\n\\ngovernment objected, leading to a bench conference where Babatunde’s counsel stated\\n\\nthat he was trying to elicit that Agent Custer had “identified who Marcus is.” The court\\n\\nfirst indicated that Babatunde’s counsel could ask the agent “if, based on his refreshed\\n\\nrecollection, he knows who Marcus is,” but then the government indicated that on\\n\\nredirect, it would “ask the agent if he had seen other people in other documents\\n\\nreferenced as chairman,” which would create a problem because Ogundele is also\\n\\n“referenced as chairman in various other communications.” To avoid the confusion, the\\n\\ncourt then instructed Babatunde’s counsel simply not to “refer to the name Marcus.”\\n\\n We conclude that the district court did not abuse its discretion in so ruling and, in\\n\\nany event, any error was certainly not so serious as to warrant vacating Babatunde’s\\n\\nconvictions. Despite Babatunde’s assertions to the contrary, it is far from clear that\\n\\n“Marcus” was not also involved in the scheme, and if Babatunde’s counsel had been\\n\\nallowed to establish that the government had learned of Marcus during its investigation,\\n\\nthat fact would likely have done little to show that Babatunde’s dealings with Marcus\\n\\nwere legitimate.\\n\\n 19\\n\\f D\\n\\n Babatunde also contends that while the government introduced evidence at trial to\\n\\nshow his sophistication in tax and banking matters — including a college transcript\\n\\nreflecting his high grades in accounting courses — the court erroneously prevented his\\n\\ncounsel from eliciting from Agent Custer that Custer was aware of other fraud schemes\\n\\ntargeting attorneys in an effort to show that even sophisticated individuals could be fraud\\n\\nvictims. We conclude that the district court did not abuse its discretion in excluding this\\n\\nevidence as irrelevant. Moreover, even if its exclusion was error, it was clearly harmless.\\n\\n\\n E\\n\\n Babatunde contends finally that the district court abused its discretion in admitting\\n\\nhis tax returns for 2011 through 2013, arguing that “[t]his was simply done to inflame the\\n\\njury against [him] by suggesting [he] was not paying taxes on taxable income” and thus\\n\\n“committing a separate crime, tax evasion.” Again, we conclude that the court did not\\n\\nabuse its discretion in admitting the tax returns. The fact that Babatunde did not report\\n\\nthe substantial sums flowing through his account was relevant to the government’s effort\\n\\nto show that the funds were ill-gotten.\\n\\n\\n F\\n\\n Mojisola contends that the district court abused its discretion in allowing the\\n\\ngovernment to introduce (1) her 2013 federal bankruptcy filing; (2) her 2013 Maryland\\n\\nwelfare and food stamp application; and (3) her application to purchase a timeshare in\\n\\n2014 — none of which reported the funds that came through her bank account during the\\n\\n 20\\n\\frelevant time period. She asserts that the “government’s theory of admissibility” — that\\n\\nher failure to disclose those funds in those documents tended to show that she knew that\\n\\nthe funds coming through her account were illegitimate — “was based on a false premise\\n\\nabsent establishing through an expert witness that the money flowing in and out of her\\n\\naccount was her income [that] she had a duty to disclose on these various forms.”\\n\\nInvoking Federal Rules of Evidence 404(b) and 403, she maintains that the admission of\\n\\nthis evidence constituted a “thinly veiled attack on [her] character and any legitimate\\n\\nprobative value was outweighed by the serious risk of unfair prejudice.”\\n\\n We conclude, however, that these documents were admissible under Rule 404(b)\\n\\nas both relevant to and probative of her knowledge that the funds coming into her bank\\n\\naccount were illegitimate. See Fed. R. Evid. 404(b) (providing that evidence of a crime,\\n\\nwrong, or other act, while not admissible to prove a person’s character, is admissible for\\n\\nproving knowledge); see also United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997).\\n\\nMojisola was, of course, free to counter that inference by showing that she had no duty to\\n\\ndisclose the funds on the various forms because they only passed through her account.\\n\\n Moreover, we conclude that the district court did not abuse its discretion in ruling\\n\\nthat the probative value of the evidence was not substantially outweighed by a danger of\\n\\nunfair prejudice. See Fed. R. Evid. 403; Queen, 132 F.3d at 997–98.\\n\\n\\n VI\\n\\n The defendants next contend that the district court erred in giving three particular\\n\\ninstructions to the jury. We address each in turn.\\n\\n\\n 21\\n\\f A\\n\\n First, all defendants contend that the district court erred in giving a willful\\n\\nblindness instruction to the jury, maintaining “that there was not sufficient evidence as a\\n\\nthreshold matter to support the assertion that [they] deliberately avoided learning the\\n\\ntruth.”\\n\\n The willful blindness doctrine “is premised on the idea that defendants should not\\n\\nbe permitted to ‘escape the reach’ of criminal statutes that require proof that a defendant\\n\\nacted knowingly or willfully ‘by deliberately shielding themselves from clear evidence of\\n\\ncritical facts that are strongly suggested by the circumstances.’” United States v. Hale,\\n\\n857 F.3d 158, 168 (4th Cir. 2017) (quoting Global-Tech Appliances, Inc. v. SEB S.A., 563\\n\\nU.S. 754, 766 (2011)). “But, to ensure that the willful blindness doctrine retains ‘an\\n\\nappropriately limited scope that surpasses recklessness and negligence,’ its application\\n\\nhas ‘two basic requirements: (1) the defendant must subjectively believe that there is a\\n\\nhigh probability that a fact exists and (2) the defendant must take deliberate actions to\\n\\navoid learning of that fact.’” Id. (quoting Global-Tech Appliances, 563 U.S. at 769).\\n\\nThus, we have made clear that while “requests for willful blindness instructions should be\\n\\nhandled with caution,” it is nonetheless “appropriate to instruct the jury on willful\\n\\nblindness when the defendant claims lack of guilty knowledge in the face of evidence\\n\\nsupporting an inference of deliberate ignorance.” Id. (cleaned up).\\n\\n We conclude that, in this case, the evidence justified the district court’s decision to\\n\\ninstruct the jury on willful blindness, as it amply allowed the inference that the\\n\\ndefendants “subjectively believe[d] that there [was] a high probability” that the funds\\n\\n 22\\n\\fcoming into their bank accounts were illicit. Global-Tech Appliances, 563 U.S. at 769.\\n\\nFor instance, there was evidence that when banks closed certain defendants’ bank\\n\\naccounts, the defendants simply opened new ones and continued the same activity. There\\n\\nwas also evidence that many of the defendants’ bank statements reflected significant wire\\n\\ntransfers from individuals they did not know. And certain defendants took deliberate\\n\\nactions to avoid confirming that the money in fact represented proceeds of fraud. For\\n\\nexample, Ogundele indicated to the FBI that he told Haruna that he was uncomfortable\\n\\nseeing those names on his bank statements and that the deposits should be in cash or\\n\\notherwise structured to avoid that. The deposits into Oloyede’s accounts followed a\\n\\nsimilar pattern. Similarly, the jury could have inferred that Mojisola thought it was\\n\\nhighly likely that the funds flowing through her account were illegitimate but was careful\\n\\nnever to confirm the details of the operation with her husband. And while Oloyede\\n\\nargues that he gave testimony that he actually took affirmative steps to discover the\\n\\nsource of the funds and was reasonably assured by Haruna and Ogundele that the funds\\n\\nwere legitimate, the jury was not required to believe his version of events.\\n\\n In addition, the defendants challenge the form of the willful blindness instruction\\n\\ngiven by the district court, but, after carefully reviewing the instruction, we find no\\n\\nreversable error.\\n\\n\\n B\\n\\n Ogundele contends that the district court erred in instructing the jury on the\\n\\nelements of aggravated identity theft, particularly “the required mental state.”\\n\\n\\n 23\\n\\fSpecifically, he appears to contend that the district court did not instruct the jury that the\\n\\ngovernment must show that he knew that the means of identification belonged to another\\n\\nperson. But the record does not support his argument. The court specifically instructed\\n\\nthe jury that “the government must prove that the means of identification was that of an\\n\\nactual person either living or dead, and that the defendant knew that the means of\\n\\nidentification was that of a natural person.” (Emphasis added).\\n\\n\\n C\\n\\n Finally, Ogundele and Babatunde (adopting Ogundele’s argument) contend that\\n\\nthe court erred in giving the form of the aiding-and-abetting instruction that it gave when\\n\\napplied to aggravated identity theft, arguing that the instruction “did not sufficiently\\n\\ninform the jury of the required mental state” and relying on the Supreme Court’s decision\\n\\nin Rosemond v. United States, 572 U.S. 65 (2014). The Rosemond Court held that to\\n\\nprove that a defendant aided and abetted a violation of 18 U.S.C. § 924(c) — which\\n\\nprohibits using or carrying a firearm during and in relation to any crime of violence or\\n\\ndrug trafficking crime — the government must show “that the defendant actively\\n\\nparticipated in the underlying drug trafficking or violent crime with advance knowledge\\n\\nthat a confederate would use or carry a gun during the crime’s commission.” Id. at 67\\n\\n(emphasis added). It further concluded that the jury instructions given at Rosemond’s\\n\\ntrial “were erroneous because they failed to require that the defendant knew in advance\\n\\nthat one of his cohorts would be armed.” Id. Pointing to Rosemond, Ogundele argues\\n\\nthat the same “advanced knowledge” requirement should apply to the aggravated identity\\n\\n\\n 24\\n\\ftheft statute, 18 U.S.C. § 1028A, and that the jury instructions given in this case were\\n\\ndeficient because they “could allow the jury to determine that the defendants were guilty\\n\\nof aiding and abetting the crime without prior knowledge of the aggravated nature of the\\n\\ncrime.”\\n\\n We disagree. As the Rosemond Court explained, “a person aids and abets a crime\\n\\nwhen (in addition to taking the requisite act) he intends to facilitate that offense’s\\n\\ncommission,” and “the intent must go to the specific and entire crime charged.” 572 U.S.\\n\\nat 76; see also id. at 77 (“[F]or purposes of aiding and abetting law, a person who\\n\\nactively participates in a criminal scheme knowing its extent and character intends that\\n\\nscheme’s commission”). The problem in Rosemond was that the challenged instruction\\n\\nallowed the jury to convict if the defendant (1) “knowingly and actively participated in\\n\\nthe drug trafficking crime” and (2) “knew his cohort used a firearm in the drug\\n\\ntrafficking crime,” id. at 82 (emphasis added), thus allowing a conviction even if the\\n\\ndefendant had no advance knowledge that one of his confederates would be carrying a\\n\\ngun. Here, by contrast, the district court instructed the jury that “the government must\\n\\nestablish the defendant knowingly participated in the aggravated identity theft charged in\\n\\nCounts Three through Six.” The instruction also required the government to “prove that\\n\\nthe defendant engaged in some affirmative conduct or overt act for the specific purpose\\n\\nof bringing about that crime.” And elsewhere, the instructions made clear that the\\n\\ndefendant must have “participate[d] in the crime as something he or she wished to bring\\n\\nabout,” “knowingly associate[d] him or herself with the criminal venture,” and sought\\n\\n“by his or her actions to make the criminal venture succeed.” Accordingly, we conclude\\n\\n 25\\n\\fthat there was no Rosemond problem with the aiding-and-abetting instruction given by\\n\\ndistrict court.\\n\\n\\n VII\\n\\n Babatunde contends that the evidence was insufficient to support each of his\\n\\nconvictions — for conspiracy to commit wire fraud, conspiracy to commit money\\n\\nlaundering, and aggravated identity theft. Alternatively, he argues that, at the very least,\\n\\nthe district court should have granted his motion for a new trial based on the weakness of\\n\\nthe government’s case against him.\\n\\n As to his conviction for conspiracy to commit wire fraud, Babatunde argues that\\n\\n“there was absolutely no evidence tying [him] to the scheme to defraud the alleged\\n\\nvictims” and that instead the transactions at issue were “related to his automobile\\n\\nbusiness and from legitimate sources.” But while, as he notes, he “testified at trial that he\\n\\nwas not part of any scheme but was a legitimate businessman that performed a few\\n\\nfinancial transactions in relation to what he was led to believe was a legitimate business,”\\n\\nthe jury was not required to accept his account in light of the government’s substantial\\n\\nevidence to the contrary. Such evidence included Babatunde’s pattern of using other\\n\\npeople’s bank accounts to accept the fraudulent funds despite having his own bank\\n\\naccounts and his incriminating communications recovered from his cell phone, such as\\n\\ntext messages in which he instructed another charged coconspirator to structure\\n\\ntransactions to avoid a $10,000 reporting requirement.\\n\\n\\n\\n\\n 26\\n\\f Similarly, this and other evidence was sufficient to support Babatunde’s\\n\\nconviction for conspiracy to commit money laundering. Babatunde argues that this\\n\\n“conviction cannot be sustained because [he] did not conspire to ‘conceal’ the funds.”\\n\\nBut that ignores how, for example, he wrote himself 11 checks totaling $70,000 in 2011\\n\\nsolely to move money from one bank account to another and how he quickly withdrew\\n\\nvictims’ money from the bank accounts he controlled, engaging a pattern of maxing out\\n\\nATM withdrawals.\\n\\n Finally, Babatunde argues that the evidence was insufficient to support his\\n\\nconviction for aggravated identity theft. The aggravated identity theft statute imposes a\\n\\nmandatory consecutive two-year prison sentence against anyone who, “during and in\\n\\nrelation to [a qualifying felony], knowingly transfers, possesses, or uses, without lawful\\n\\nauthority, a means of identification of another person.” 18 U.S.C. § 1028A(a)(1). Here,\\n\\nboth Babatunde and Oloyede were convicted of aggravated identity theft based on their\\n\\nuse of the name and bank account number of one of Babatunde’s sisters, a woman named\\n\\nAbiola Akinmboni. Babatunde argues, however, that he had Akinmboni’s permission to\\n\\nuse her account and therefore possessed “lawful authority.” But we have previously\\n\\nrejected this precise argument. See United States v. Otuya, 720 F.3d 183, 189 (4th Cir.\\n\\n2013) (“[I]t is obvious that, with or without permission from its rightful owner, a\\n\\ndefendant who uses the means of identification of another ‘during and in relation to any\\n\\nfelony violation enumerated’ in the statute necessarily lacks a form of authorization\\n\\nrecognized by law”); see also id. at 190 (“[T]he plain meaning of § 1028A(a)(1) is\\n\\n\\n\\n 27\\n\\funambiguous: one who uses a means of identification to commit an enumerated felony\\n\\ndoes not act with ‘lawful authority’”).\\n\\n Accordingly, we conclude that the evidence was sufficient to support each of\\n\\nBabatunde’s convictions and that the district court did not abuse its discretion in denying\\n\\nhis motion for a new trial.\\n\\n\\n VIII\\n\\n Finally, three of the defendants raise issues pertaining to their sentences.\\n\\n First, Babatunde challenges the district court’s calculation of his advisory\\n\\nsentencing range — particularly, (1) its determination that he was accountable for a loss\\n\\nof more than $250,000 but less than $555,000, triggering a 12-level increase under\\n\\nU.S.S.G. § 2B1.1(b)(1)(G), as compared to the 8-level increase he argued was applicable\\n\\nfor a loss of $119,000; (2) its application of a 3-level enhancement under § 3B1.1(b) for\\n\\nhis role in the offense; and (3) its application of a 2-level enhancement under\\n\\n§ 2S1.1(b)(3) for sophisticated laundering. After carefully reviewing the record,\\n\\nhowever, we cannot conclude that the district court clearly erred in the factual findings\\n\\nsupporting any of these enhancements.\\n\\n Next, Ogundele challenges his sentence on the ground that the district court erred\\n\\nin its calculation of his advisory sentencing range by applying a 16-level increase to his\\n\\noffense level based on a finding that he was accountable for more than $1.5 million but\\n\\nless than $3.5 million in loss. The record shows, however, that this was a conservative\\n\\n\\n\\n\\n 28\\n\\festimate of the loss for which he was accountable based on the activity in his own bank\\n\\naccounts.\\n\\n Finally, Oloyede challenges the district court’s decision to hold him accountable\\n\\nfor a loss amount of $1.6 million. But that determination too was based on a reasonable\\n\\nestimate of the fraudulent proceeds that flowed through Oloyede’s bank accounts. He\\n\\nalso argues more broadly that his sentence was both “procedurally and substantively\\n\\nunreasonable because the court failed to make an individualized assessment of all factors\\n\\nset forth in 18 U.S.C. § 3553(a) and in so doing imposed a sentence greater than\\n\\nnecessary to accomplish the goals of sentencing.” But the record reflects that the district\\n\\ncourt thoroughly considered how the § 3553(a) factors applied to Oloyede in imposing a\\n\\nsentence that was at the top of the advisory sentencing range.\\n\\n * * *\\n\\n For the foregoing reasons, we affirm the judgments of the district court.\\n\\n AFFIRMED\\n\\n\\n\\n\\n 29\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4421660/\", \"author_raw\": \"NIEMEYER, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"NIEMEYER"},"judge2":{"kind":"string","value":"KING"},"judge3":{"kind":"string","value":"WYNN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4644407/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Victor Oyewumi OLOYEDE, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Babatunde Emmanuel Popoola, A/K/A Emmanuel Popoola, A/K/A Tunde Popoola, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Mojisola Tinuola Popoola, A/K/A Mojisola Oluwakemi Tin Popoola, A/K/A Moji T. Popoola, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Gbenga Benson Ogundele, A/K/A Benson Ogundele, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-07-31\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-4102\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nVICTOR OYEWUMI OLOYEDE,\n\n Defendant - Appellant.\n\n\n No. 17-4186\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nBABATUNDE EMMANUEL POPOOLA, a/k/a Emmanuel Popoola, a/k/a Tunde\nPopoola,\n\n Defendant - Appellant.\n\n\n No. 17-4191\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n v.\n\fMOJISOLA TINUOLA POPOOLA, a/k/a Mojisola Oluwakemi Tin Popoola, a/k/a\nMoji T. Popoola,\n\n Defendant - Appellant.\n\n\n No. 17-4207\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nGBENGA BENSON OGUNDELE, a/k/a Benson Ogundele,\n\n Defendant - Appellant.\n\n\nAppeals from the United States District Court for the District of Maryland, at Greenbelt.\nPaul W. Grimm, District Judge. (8:15-cr-00277-PWG-3) (8:15-cr-00277-PWG-5) (8:15-\ncr-00277-PWG-7) (8:15-cr-00277-PWG-1)\n\n\nArgued: December 13, 2018 Decided: July 31, 2019\n\n\nBefore NIEMEYER, KING, and WYNN Circuit Judges.\n\n\nAffirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge King\nand Judge Wynn joined.\n\nARGUED: Justin Eisele, SEDDIQ LAW FIRM, Upper Marlboro, Maryland; John O.\nIweanoge, II, THE IWEANOGES’ FIRM, PC, Washington, D.C.; Richard Alan\nSeligman, LAW OFFICE OF RICHARD SELIGMAN, Washington, D.C.; Gerald Ruter,\nLAW OFFICES OF GERALD C. RUTER, P.C., Baltimore, Maryland, for Appellants.\nThomas Patrick Windom, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,\nMaryland, for Appellee. ON BRIEF: Robert K. Hur, United States Attorney, Baltimore,\nMaryland, Jennifer R. Sykes, Assistant United States Attorney, OFFICE OF THE\nUNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.\n\n\n 2\n\fNIEMEYER, Circuit Judge:\n\n The four defendants in these appeals, who were charged as participants in a\n\nconspiracy that involved numerous others, were tried together and convicted of\n\nconspiracy to commit wire fraud and related offenses based on an extensive online dating\n\nfraud scheme that induced elderly victims to transfer money to the defendants’ bank\n\naccounts based on postured romantic relationships. The district court found that the\n\ndefendants obtained over $2 million in this manner and sentenced the four defendants\n\nvariously from 18 months’ to 234 months’ imprisonment. From the judgments against\n\nthem, the defendants filed these appeals raising numerous pretrial, trial, and sentencing\n\nissues — most significantly, an issue relating to a pretrial motion to suppress and an issue\n\nrelating to the government’s use at trial of charts offered under Rule of Evidence 1006.\n\nAfter considering all of the issues raised, we affirm.\n\n\n I\n\n In May 2015, a grand jury indicted 10 individuals, including the four defendants in\n\nthese appeals — Gbenga Benson Ogundele; his wife, Mojisola Tinuola Popoola; her\n\nbrother, Babatunde Emmanuel Popoola; and Victor Oyewumi Oloyede — for their\n\nparticipation in a widespread online dating fraud scheme that resulted in numerous\n\nelderly victims suffering substantial financial losses. According to the indictment, from\n\n2011 through 2015, coconspirators initiated sham romantic relationships with at least 17\n\nelderly victims throughout the country by searching online dating websites and then used\n\nfraudulent representations to convince the victims to transfer money to bank accounts\n\n\n 3\n\fcontrolled by the defendants. The defendants were charged with transferring this money\n\nthrough various facilities to promote the conspiracy and to hide the nature and source of\n\nthe funds. Based on these allegations, the indictment charged all defendants with\n\nconspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, and conspiracy to\n\ncommit money laundering, in violation of 18 U.S.C. § 1956(h). In addition, it charged\n\nOgundele, Babatunde, and Oloyede with aggravated identify theft, in violation of 18\n\nU.S.C. § 1028A. The district court scheduled two separate trials for the 10 indicted\n\ndefendants, and the government’s case against Ogundele, Mojisola, Babatunde, and\n\nOloyede proceeded to trial first, beginning in October 2016.\n\n At trial, the government’s evidence included testimony from 11 victims of the\n\nfraud scheme, as well as a daughter of a victim who had recently died. The victims\n\ntestified as to how they had formed what they thought were meaningful long-distance\n\nrelationships with a person they met online and had eventually transferred significant\n\nsums of money for various reasons as requested by the person, only to realize later that\n\nthey had been defrauded. These victims’ testimony showed that, between November\n\n2012 and April 2014, five of them sent a total of approximately $140,000 to two business\n\nbank accounts controlled by Ogundele; that, during a six-month period in 2012, five of\n\nthem sent a total of $138,000 to two bank accounts controlled by Oloyede, with all but\n\n$3,000 of that going to a single business account; and that, in July 2014, one victim\n\ndeposited $5,000 in cash into an account in the name of Mojisola, who then promptly\n\nwrote a check for the same amount to a company controlled by her husband, Ogundele.\n\nIn addition, the government’s evidence showed that some of this and other money was\n\n 4\n\ftransferred to accounts controlled by Babatunde. For instance, on the same day in\n\nOctober 2012 that one victim deposited $20,000 into Oloyede’s business account,\n\n$10,000 was transferred from that account to an account that Babatunde controlled but\n\nwas in the name of one of his sisters.\n\n The government also presented testimony from employees of Bank of America,\n\nCapital One, and Wells Fargo regarding activity in approximately a dozen of the\n\ndefendants’ bank accounts, almost all of which had been closed by the banks during the\n\ncourse of the conspiracy. Bank records not only showed numerous wire transfers and\n\ncash deposits from the victims who testified but also showed other suspicious large cash\n\ndeposits made from States throughout the country. For example, bank records from\n\nMojisola’s Bank of America account, which had been closed in August 2014, showed\n\nthat it had received significant cash deposits or teller transfers from persons in Florida,\n\nNorth Carolina, Georgia, Michigan, and Tennessee and that the funds were then quickly\n\nwithdrawn or transferred. The records also showed that Mojisola’s account received\n\nseveral large wire transfers in 2011 from her half-brother, Mukhtar Haruna — a Nigerian\n\nnational and resident who was indicted with the others but never arraigned. These funds\n\nwere then transferred into an account controlled by Mojisola’s husband, Ogundele.\n\n Finally, the government presented testimony from numerous FBI agents about\n\nevidence recovered from search warrants of the defendants’ homes, phones, and email\n\naccounts. FBI agents also testified to post-arrest statements made by Ogundele, Oloyede,\n\nand Babatunde. And an FBI forensic accountant created charts detailing certain activity\n\n\n\n 5\n\fin the defendants’ bank accounts from 2011 through 2014 and presented those charts to\n\nthe jury at trial.\n\n After the government rested and the district court denied the defendants’ motions\n\nfor judgment of acquittal, the defendants called a number of witnesses, and Oloyede and\n\nBabatunde both testified in their own defense. Generally, their theory of the case was\n\nthat Haruna had made them believe that the money coming into their bank accounts was\n\nto purchase cars for export to Nigeria, thus blaming Haruna for the entire scheme. They\n\nalso placed blame on Ogundele.\n\n The jury convicted all four defendants on all counts, and the district court\n\nthereafter sentenced Ogundele and Oloyede each to 234 months’ imprisonment,\n\nBabatunde to 144 months’ imprisonment, and Mojisola to 18 months’ imprisonment.\n\n From the judgments entered against them, the defendants filed these appeals,\n\nwhich we then consolidated.\n\n\n II\n\n During execution of a search warrant and an arrest warrant at Mojisola’s house,\n\nFBI Special Agent Monique Winkis handed Mojisola a locked cell phone that had been\n\nfound in her bedroom and asked her, “Could you please unlock your iPhone?” Mojisola\n\ntook the phone, entered her passcode, and handed the phone back to Agent Winkis, who\n\nthen gave the unlocked phone to a forensic examiner for it to be searched. Agent Winkis\n\ndid not ask for the passcode; Mojisola did not reveal the passcode to Agent Winkis; and\n\nAgent Winkis did not see Mojisola enter her passcode.\n\n\n 6\n\f Mojisola filed a motion to suppress the contents of her cell phone in the district\n\ncourt, contending that Agent Winkis’s request to open her phone and her compliance with\n\nthat request without having been given Miranda warnings violated her Fifth Amendment\n\nright against self-incrimination. The district court denied the motion on the ground that\n\nMojisola’s entry of a passcode to unlock her phone was not a “communicative response”\n\nby her and therefore was not a testimonial statement subject to Miranda. It also found\n\nthat Agent Winkis’s request was not “coercive or threatening” and that Mojisola’s\n\ncompliance was “voluntary.”\n\n Mojisola now contends on appeal that, because she was in custody and not\n\ninformed of her Miranda rights, she “could not knowingly and voluntarily [have]\n\nwaive[d] her rights against self-incrimination.” Moreover, she argues that entering her\n\npasscode was a communicative act that amounted to self-incrimination.\n\n The government contends that Mojisola’s physical action of typing her passcode\n\ninto a phone was not a testimonial statement that was subject to Miranda and that, in any\n\nevent, the evidence obtained from her cell phone was nonetheless admissible under\n\nUnited States v. Patane, 542 U.S. 630 (2004) (plurality opinion), because her action was\n\nvoluntary.\n\n We thus are presented with the question of whether a person in custody, who has\n\nnot been given Miranda warnings, was compelled to incriminate herself in violation of\n\nthe Fifth Amendment when she voluntarily, pursuant to an officer’s request, used her\n\npasscode to open her cell phone but did not disclose the passcode.\n\n\n\n 7\n\f The Fifth Amendment provides that no person “shall be compelled in any criminal\n\ncase to be a witness against himself.” U.S. Const. amend. V. Therefore, a violation\n\noccurs when “the accused is [1] compelled [2] to make a testimonial communication\n\n[3] that is incriminating.” United States v. Sweets, 526 F.3d 122, 127 (4th Cir. 2007)\n\n(quoting Fisher v. United States, 425 U.S. 391, 408 (1976)). While a testimonial\n\ncommunication is most often in verbal or written form, it may also be made by an act. Id.\n\nBut to be a testimonial communication, the act must “relate a factual assertion or disclose\n\ninformation,” Doe v. United States, 487 U.S. 201, 210 (1988); it must “express the\n\ncontents of [the person’s] mind,” id. at 210 n.9.\n\n In this case, Mojisola is faced with the task of demonstrating that her simple act of\n\ntyping in the passcode out of the FBI’s agent’s view was a testimonial communication to\n\nthe agent. Certainly, Mojisola has not shown that her act communicated her cell phone’s\n\nunique passcode. Unlike a circumstance, for example, in which she gave the passcode to\n\nthe agent for the agent to enter, here she simply used the unexpressed contents of her\n\nmind to type in the passcode herself. See United States v. Hubbell, 530 U.S. 27, 43\n\n(2000) (distinguishing “surrender[ing] the key to a strongbox,” which is not\n\ncommunicative, from “telling an inquisitor the combination to a wall safe,” which is\n\ncommunicative).\n\n Mojisola argues nonetheless that “[o]nly through her communicative conduct of\n\nunlocking the iPhone was the government able to ascertain that it belonged to her” and\n\nthat her act was therefore a testimonial communication. Yet, the ownership of the phone\n\n\n\n 8\n\fwas neither an issue before the district court at the suppression hearing nor an issue\n\nbefore the jury.\n\n In any event, even were we to accept Mojisola’s argument that she made a\n\ntestimonial communication when she unlocked her phone, it would provide no\n\nmeaningful help to her defense because the fruit of that voluntary communication, even\n\nthough made without a Miranda warning, would nonetheless be admissible into evidence.\n\nIn Patane, officers failed to provide a Miranda warning to a suspect before asking him\n\nthe location of his firearm, which he then disclosed. 542 U.S. at 635. The plurality\n\nopinion in Patane deemed the firearm admissible, reasoning that “the Miranda rule is a\n\nprophylactic employed to protect against violations of the Self-Incrimination Clause” and\n\nthat the Clause “is not implicated by the admission into evidence of the physical fruit of a\n\nvoluntary statement.” Id. at 636 (emphasis added). The plurality therefore saw “no\n\njustification for extending the Miranda rule to this context,” explaining that “[t]he Clause\n\ncannot be violated by the introduction of nontestimonial evidence obtained as a result of\n\nvoluntary statements.” Id. at 636–38; see also id. at 644–45 (Kennedy, J., concurring)\n\n(agreeing with the plurality that “evidence obtained following an unwarned interrogation”\n\nis admissible). Accordingly, the admission into evidence of data from Mojisola’s phone\n\n— the fruit of her opening it — “present[ed] no risk that . . . coerced statements (however\n\ndefined) [would] be used against [her] at a criminal trial.” Id. at 643 (emphasis added).\n\n We conclude therefore that the district court did not err in denying Mojisola’s\n\nmotion to suppress.\n\n\n\n 9\n\f III\n\n Several defendants contend that the district court abused its discretion in admitting\n\ninto evidence under Federal Rule of Evidence 1006 a series of charts detailing selected\n\ndeposits made into their bank accounts. Ogundele and Oloyede note that the charts\n\nincluded deposits related to a “subjective list” of suspected victims and represented an\n\n“editorialized subsection of transactions.” They also maintain that many of the charts’\n\nentries, including those reflecting many of the cash deposits, were never proven to be\n\nrelated to fraudulent activity, but that admitting the charts into evidence implied that\n\nevery entry was fraudulent. Babatunde contends that the chart relating to his bank\n\naccount was erroneously admitted because there was no direct evidence that the account\n\nwas connected to fraudulent activity.\n\n In creating the charts introduced against Ogundele and Oloyede, FBI Forensic\n\nAccountant David Rutledge included selected deposits that had been made into the bank\n\naccounts consistent with the government’s theory of which deposits were tied to illegal\n\nactivity. For example, with respect to Ogundele’s accounts, while Rutledge included all\n\ncash deposits and all ATM deposits to the extent that bank records did not identify\n\nwhether it was a cash or check deposit, he included wire transfers only to the extent that\n\nthe bank statement identified the name of the sender and that name was on a list provided\n\nto him by the case agent. Similarly, he included check deposits only to the extent that the\n\ncheck was written by an individual on the list and out-of-state teller transfers only to the\n\nextent that a receipt associated with the transfer was included as an attachment in a batch\n\nof emails that Rutledge was provided.\n\n 10\n\f We agree with Ogundele and Oloyede that the charts relating to their accounts\n\nfailed to comport with Rule of Evidence 1006 because of their selectivity. They did not\n\nfully represent the accounts that they were purportedly summarizing. Rule 1006\n\nprovides:\n\n The proponent may use a summary, chart, or calculation to prove the\n content of voluminous writings, recordings, or photographs that cannot be\n conveniently examined in court. The proponent must make the originals or\n duplicates available for examination or copying, or both, by other parties at\n a reasonable time and place. And the court may order the proponent to\n produce them in court.\n\nFed. R. Evid. 1006 (emphasis added). This rule authorizes the admission of charts into\n\nevidence that serve “as a surrogate for underlying voluminous records that would\n\notherwise be admissible into evidence,” thereby “reduc[ing] the volume of written\n\ndocuments that are introduced into evidence.” United States v. Janati, 374 F.3d 263, 272\n\n(4th Cir. 2004) (emphasis added). Stated otherwise, “the chart itself is admitted as\n\nevidence in order to give the jury evidence of the underlying documents,” id. at 273, and\n\ntherefore it must be an objectively accurate summarization of the underlying documents,\n\nnot a skewed selection of some of the documents to further the proponent’s theory of the\n\ncase, see id. at 272. “In this respect, Rule 1006 summary charts are distinguishable from\n\nother charts and summaries that may be presented under Federal Rule of Evidence 611(a)\n\nto facilitate the presentation and comprehension of evidence already in the record.” Id.\n\n(emphasis added). Rule 611(a) charts are not evidence themselves; they are used “merely\n\nto aid the jury in its understanding of the evidence that has already been admitted,” by,\n\nfor example, “reveal[ing] inferences drawn in a way that would assist the jury.” Id.\n\n\n 11\n\f It is apparent that the government in this case was not using the charts as surrogate\n\nevidence offered in lieu of voluminous underlying bank records, but rather was seeking to\n\nhelp the jury understand how various related records demonstrated a pattern of suspicious\n\nactivity engaged in by the defendants. Thus, while the charts could have been shown to\n\nthe jury under Rule 611(a), it was improper to have admitted them into evidence under\n\nRule 1006. Nonetheless, in the circumstances of this case, we are confident that the error\n\ndid not affect the defendants’ substantial rights, particularly as the same information in\n\nthe same form could have been shown to the jury under Rule 611(a).\n\n But Ogundele and Oloyede argue further that their right to a fair trial was\n\nprejudiced because the government cherry-picked individual records, unfairly spinning\n\nthe facts. This argument, however, ignores the role of a trial, where each side selects the\n\nevidence to be presented to the jury. Each side can challenge facts and respond to the\n\nother’s facts. In this case, in creating the charts, the government applied criteria to help\n\npresent its theory of the case, and those criteria were clearly detailed to the jury. The\n\ndefendants were thus free to cross-examine the government’s witnesses about the\n\nsoundness of the selection, just as if the charts had been shown to the jury under Rule\n\n611(a).\n\n Babatunde contends with respect to the chart admitted under Rule 1006 for his\n\nbank account that, even though the chart did summarize all non-payroll deposits\n\ninvolving more than $1,000, the admission was erroneous because there was no direct\n\nevidence that the particular bank account represented by the chart was connected to\n\nfraudulent activity. But that objection goes to the relevance of the underlying bank\n\n 12\n\frecords — not to any requirement for admission of a chart under Rule 1006 — and those\n\nrecords were clearly relevant to the alleged money laundering activities and Babatunde’s\n\ninvolvement in them.\n\n\n IV\n\n Next, Mojisola and Babatunde contend that the district court abused its discretion\n\nin denying their motions for a severance. They argue that, by being tried together with\n\nOgundele, they were denied the benefit of his testimony because he would not testify at a\n\njoint trial but, they believe, would have testified on their behalf had they been tried\n\nseparately. They also contend that they were prejudiced by a joint trial because of the\n\npossibility that the jury found them guilty by association. In denying this motion, the\n\ndistrict court concluded that they did not meet their threshold burden of showing that\n\nOgundele would waive his Fifth Amendment privilege and testify if there were a\n\nseverance. The court also rejected their argument that the disparity in the amount of\n\nevidence relating to them as compared to their codefendants warranted a severance.\n\n Federal Rule of Criminal Procedure 8(b) provides that the government may charge\n\ndefendants together “if they are alleged to have participated in the same act or\n\ntransaction, or in the same series of acts or transactions, constituting an offense or\n\noffenses,” while Rule 14 permits the district court to grant a severance if the joinder\n\n“appears to prejudice a defendant or the government.” In considering these rules, there is\n\n“a preference in the federal system for joint trials of defendants who are indicted\n\ntogether.” Zafiro v. United States, 506 U.S. 534, 537 (1993). Indeed, where, as here,\n\n\n 13\n\f“defendants properly have been joined under Rule 8(b), a district court should grant a\n\nseverance under Rule 14 only if there is a serious risk that a joint trial would compromise\n\na specific trial right of one of the defendants, or prevent the jury from making a reliable\n\njudgment about guilt or innocence.” Id. at 539.\n\n In the case before us, Mojisola and Babatunde did not make the requisite showing.\n\nAs to obtaining Ogundele’s testimony, they were required to make a threshold showing\n\nthat it was likely “that [Ogundele] would testify at a second trial and waive his Fifth\n\nAmendment privilege.” United States v. Parodi, 703 F.2d 768, 779 (4th Cir. 1983).\n\nWhile they were not required to establish Ogundele’s willingness to testify at a severed\n\ntrial “to an absolute certainty,” they were required at least to show “[a] reasonable\n\nprobability . . . that the proffered testimony would, in fact[,] materialize.” Id. They did\n\nnot meet this threshold showing, however, conceding that they had no evidence that\n\nOgundele would waive his Fifth Amendment privilege. The district court accordingly\n\ndid not abuse its discretion in denying the severance motion on this basis.\n\n These defendants also contended in the district court that they would be prejudiced\n\nby the disparity in evidence against them and the other codefendants and by the “unfair\n\nspillover effect on [their] right to a fair trial.” But it would take an exceptional case to\n\ngrant a severance on this basis, and they have not made the necessary showing that the\n\ncourt abused its discretion. Indeed, we have previously recognized that “[a] defendant is\n\nnot entitled to severance merely because . . . the evidence against one defendant is not as\n\nstrong as that against the other.” United States v. Akinkoye, 185 F.3d 192, 197 (4th Cir.\n\n1999).\n\n 14\n\f At bottom, this is not one of the “rare” cases where a defendant properly joined\n\nunder Rule 8(b) with others has established that a severance was required to preserve his\n\nor her right to a fair trial. See United States v. Dinkins, 691 F.3d 358, 368 (4th Cir.\n\n2012). Accordingly, we affirm the district court’s denial of Mojisola and Babatunde’s\n\nmotions.\n\n\n V\n\n Each defendant has raised challenges to evidentiary rulings made by the district\n\ncourt during the course of trial. Of course, it is well established that the district court, as\n\na trial court, has broad discretion to admit evidence in the management of a trial, and we\n\nwill overrule the district court’s evidentiary rulings only when the court has abused its\n\nbroad discretion to the prejudice of a party.\n\n\n A\n\n First, Mojisola, Babatunde, and Ogundele contend that the district court abused its\n\ndiscretion in admitting inculpatory portions of a post-arrest statement given by Ogundele\n\nwhile excluding, as untrustworthy hearsay, other portions, including statements tending\n\nto exculpate Mojisola and Babatunde.\n\n After being arrested and read his Miranda rights, Ogundele agreed to be\n\ninterviewed by Special Agent Custer. In his statement, Ogundele said that he ran a used\n\ncar business and admitted that he used his business accounts to move money from the\n\nUnited States to Nigeria, working with Haruna, his brother-in-law in Nigeria, to do so.\n\nWhen shown a statement for one of his business bank accounts that reflected wire\n\n 15\n\ftransfers from various victims, he admitted that he did not always know the people who\n\nwere putting money into his account but stated that he believed they were exploring\n\nbusiness opportunities in Nigeria. After making those statements against his interests,\n\nOgundele also made statements to exculpate Babatunde and Mojisola. He said,\n\n“Babatunde Popoola does not help him with the business at all.” Similarly, he said that\n\nhis wife, Mojisola Popoola, was “not involved in the business at all,” but acknowledged\n\nthat after one of his accounts had been closed, she had “accepted deposits into her\n\naccount at [his] direction.” Nonetheless, he reiterated that she “does not know anything\n\nabout the business and [that] no one calls or contacts [her] to deal with the business.”\n\n At trial, the district court, applying Federal Rule of Evidence 801(d)(2)(A),\n\nallowed the government to introduce into evidence portions of the statement made by\n\nOgundele but excluded, as untrustworthy hearsay, the portions in which Ogundele\n\nexculpated Babatunde and Mojisola. In finding the exculpatory hearsay portions not\n\nsufficiently trustworthy to be admitted, the court explained that Ogundele was motivated\n\n“to shift blame away from” his wife and her brother “and onto himself.” The court also\n\nnoted “the nature and strength of the government’s proffered evidence.” The court\n\nrejected the defendants’ argument that the hearsay portions should be admitted under\n\nRule 106, the “rule of completeness,” noting that that rule only applies to written or\n\nrecorded statements and that, in any event, it could not be used to overrule explicit\n\nhearsay rules.\n\n Mojisola now contends that the court abused its discretion, arguing that the portion\n\nof the statement made by her husband about her accepting deposits into her account at his\n\n 16\n\fdirection rendered the entire exculpatory portion admissible under Rule 804(b)(3) as a\n\nstatement against Ogundele’s interest. Alternatively, she invokes Rule 807’s residual\n\nexception, which requires “equivalent circumstantial guarantees of trustworthiness.”\n\nWhile Rule 804(b)(3) does, as a general matter, provide a hearsay exception for\n\nstatements made against one’s interest, the particular portion of Ogundele’s statement\n\nthat Mojisola seeks to admit barely included any self-inculpatory material and was\n\ndirected mostly to shifting responsibility away from his wife. Thus, we conclude that the\n\ndistrict court did not abuse its discretion in relying on Ogundele’s motive for exculpating\n\nhis wife to find this portion of the statement untrustworthy. See Williamson v. United\n\nStates, 512 U.S. 594, 600–01 (1994) (holding that Rule 804(b)(3) “does not allow\n\nadmission of non-self-inculpatory statements, even if they are made within a broader\n\nnarrative that is generally self-inculpatory”); United States v. Dargan, 738 F.3d 643, 650\n\n(4th Cir. 2013) (identifying factors to assess trustworthiness).\n\n Ogundele and Babatunde also contend that the district court abused its discretion\n\nby not applying a common law rule of completeness to admit Ogundele’s entire post-\n\narrest statement. While they recognize that Rule 106 applies only to writings and\n\nrecorded statements, they maintain that there is a “still-viable common law on the rule of\n\ncompleteness” that should have allowed the entire statement to come in. While we doubt\n\nthat a residual common law rule of completeness survives Rule 106’s codification, we\n\nhold that any such common law rule cannot be used to justify the admission of\n\ninadmissible hearsay. See Fed. R. Evid. 802 (“Hearsay is not admissible unless any of\n\n\n\n 17\n\fthe following provides otherwise: a federal statute; these rules; or other rules prescribed\n\nby the Supreme Court”).\n\n Accordingly, we conclude that the district court did not abuse its discretion in\n\nallowing the government to introduce only portions of Ogundele’s post-arrest statement.\n\n\n B\n\n In a similar vein, Babatunde contends that the district court abused its discretion in\n\nrestricting him from cross-examining an FBI agent about whether he had made certain\n\nexculpatory statements to that agent during his post-arrest interview. He argues that the\n\nstatements were not being offered for their truth but for the fact that he made them to the\n\nFBI. The district court rejected the argument, noting that if Babatunde wanted to rely on\n\nportions of his prior statement, he would have to take the stand and satisfy the\n\nrequirements of Rule 801(d)(1)(B) (providing that a statement is not hearsay if the\n\ndeclarant testifies and is subject to cross-examination about a prior consistent statement\n\nthat is offered to rebut a fabrication charge or to rehabilitate the declarant’s credibility).\n\nWe conclude the district court did not abuse its discretion in so ruling.\n\n\n C\n\n Next, Babatunde contends that the district court abused its discretion in preventing\n\nhim from cross-examining Agent Custer about Custer’s knowledge of a Nigerian named\n\n“Marcus” — a man whom Babatunde claims was a car dealer in Nigeria with whom he\n\nwas doing legitimate business. The issue arose when counsel for Babatunde, cross-\n\nexamining Agent Custer, asked him if he knew to whom “chairman” referred in a\n\n 18\n\fcommunication in which an indicted coconspirator told Babatunde that the “chairman\n\nsaid [you] should give me $3900.” When Custer stated that he could not “answer that\n\nquestion with any specificity as [it] relates to this investigation,” Babatunde’s counsel\n\nsought to refresh his recollection by handing him a copy of a redacted email that Custer\n\nhad sent to the prosecutors describing information found on the coconspirator’s cell\n\nphone, including that Marcus’s phone number had been saved in the phone’s contacts\n\nunder “chairman.” After counsel attempted to describe the contents of the email, the\n\ngovernment objected, leading to a bench conference where Babatunde’s counsel stated\n\nthat he was trying to elicit that Agent Custer had “identified who Marcus is.” The court\n\nfirst indicated that Babatunde’s counsel could ask the agent “if, based on his refreshed\n\nrecollection, he knows who Marcus is,” but then the government indicated that on\n\nredirect, it would “ask the agent if he had seen other people in other documents\n\nreferenced as chairman,” which would create a problem because Ogundele is also\n\n“referenced as chairman in various other communications.” To avoid the confusion, the\n\ncourt then instructed Babatunde’s counsel simply not to “refer to the name Marcus.”\n\n We conclude that the district court did not abuse its discretion in so ruling and, in\n\nany event, any error was certainly not so serious as to warrant vacating Babatunde’s\n\nconvictions. Despite Babatunde’s assertions to the contrary, it is far from clear that\n\n“Marcus” was not also involved in the scheme, and if Babatunde’s counsel had been\n\nallowed to establish that the government had learned of Marcus during its investigation,\n\nthat fact would likely have done little to show that Babatunde’s dealings with Marcus\n\nwere legitimate.\n\n 19\n\f D\n\n Babatunde also contends that while the government introduced evidence at trial to\n\nshow his sophistication in tax and banking matters — including a college transcript\n\nreflecting his high grades in accounting courses — the court erroneously prevented his\n\ncounsel from eliciting from Agent Custer that Custer was aware of other fraud schemes\n\ntargeting attorneys in an effort to show that even sophisticated individuals could be fraud\n\nvictims. We conclude that the district court did not abuse its discretion in excluding this\n\nevidence as irrelevant. Moreover, even if its exclusion was error, it was clearly harmless.\n\n\n E\n\n Babatunde contends finally that the district court abused its discretion in admitting\n\nhis tax returns for 2011 through 2013, arguing that “[t]his was simply done to inflame the\n\njury against [him] by suggesting [he] was not paying taxes on taxable income” and thus\n\n“committing a separate crime, tax evasion.” Again, we conclude that the court did not\n\nabuse its discretion in admitting the tax returns. The fact that Babatunde did not report\n\nthe substantial sums flowing through his account was relevant to the government’s effort\n\nto show that the funds were ill-gotten.\n\n\n F\n\n Mojisola contends that the district court abused its discretion in allowing the\n\ngovernment to introduce (1) her 2013 federal bankruptcy filing; (2) her 2013 Maryland\n\nwelfare and food stamp application; and (3) her application to purchase a timeshare in\n\n2014 — none of which reported the funds that came through her bank account during the\n\n 20\n\frelevant time period. She asserts that the “government’s theory of admissibility” — that\n\nher failure to disclose those funds in those documents tended to show that she knew that\n\nthe funds coming through her account were illegitimate — “was based on a false premise\n\nabsent establishing through an expert witness that the money flowing in and out of her\n\naccount was her income [that] she had a duty to disclose on these various forms.”\n\nInvoking Federal Rules of Evidence 404(b) and 403, she maintains that the admission of\n\nthis evidence constituted a “thinly veiled attack on [her] character and any legitimate\n\nprobative value was outweighed by the serious risk of unfair prejudice.”\n\n We conclude, however, that these documents were admissible under Rule 404(b)\n\nas both relevant to and probative of her knowledge that the funds coming into her bank\n\naccount were illegitimate. See Fed. R. Evid. 404(b) (providing that evidence of a crime,\n\nwrong, or other act, while not admissible to prove a person’s character, is admissible for\n\nproving knowledge); see also United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997).\n\nMojisola was, of course, free to counter that inference by showing that she had no duty to\n\ndisclose the funds on the various forms because they only passed through her account.\n\n Moreover, we conclude that the district court did not abuse its discretion in ruling\n\nthat the probative value of the evidence was not substantially outweighed by a danger of\n\nunfair prejudice. See Fed. R. Evid. 403; Queen, 132 F.3d at 997–98.\n\n\n VI\n\n The defendants next contend that the district court erred in giving three particular\n\ninstructions to the jury. We address each in turn.\n\n\n 21\n\f A\n\n First, all defendants contend that the district court erred in giving a willful\n\nblindness instruction to the jury, maintaining “that there was not sufficient evidence as a\n\nthreshold matter to support the assertion that [they] deliberately avoided learning the\n\ntruth.”\n\n The willful blindness doctrine “is premised on the idea that defendants should not\n\nbe permitted to ‘escape the reach’ of criminal statutes that require proof that a defendant\n\nacted knowingly or willfully ‘by deliberately shielding themselves from clear evidence of\n\ncritical facts that are strongly suggested by the circumstances.’” United States v. Hale,\n\n857 F.3d 158, 168 (4th Cir. 2017) (quoting Global-Tech Appliances, Inc. v. SEB S.A., 563\n\nU.S. 754, 766 (2011)). “But, to ensure that the willful blindness doctrine retains ‘an\n\nappropriately limited scope that surpasses recklessness and negligence,’ its application\n\nhas ‘two basic requirements: (1) the defendant must subjectively believe that there is a\n\nhigh probability that a fact exists and (2) the defendant must take deliberate actions to\n\navoid learning of that fact.’” Id. (quoting Global-Tech Appliances, 563 U.S. at 769).\n\nThus, we have made clear that while “requests for willful blindness instructions should be\n\nhandled with caution,” it is nonetheless “appropriate to instruct the jury on willful\n\nblindness when the defendant claims lack of guilty knowledge in the face of evidence\n\nsupporting an inference of deliberate ignorance.” Id. (cleaned up).\n\n We conclude that, in this case, the evidence justified the district court’s decision to\n\ninstruct the jury on willful blindness, as it amply allowed the inference that the\n\ndefendants “subjectively believe[d] that there [was] a high probability” that the funds\n\n 22\n\fcoming into their bank accounts were illicit. Global-Tech Appliances, 563 U.S. at 769.\n\nFor instance, there was evidence that when banks closed certain defendants’ bank\n\naccounts, the defendants simply opened new ones and continued the same activity. There\n\nwas also evidence that many of the defendants’ bank statements reflected significant wire\n\ntransfers from individuals they did not know. And certain defendants took deliberate\n\nactions to avoid confirming that the money in fact represented proceeds of fraud. For\n\nexample, Ogundele indicated to the FBI that he told Haruna that he was uncomfortable\n\nseeing those names on his bank statements and that the deposits should be in cash or\n\notherwise structured to avoid that. The deposits into Oloyede’s accounts followed a\n\nsimilar pattern. Similarly, the jury could have inferred that Mojisola thought it was\n\nhighly likely that the funds flowing through her account were illegitimate but was careful\n\nnever to confirm the details of the operation with her husband. And while Oloyede\n\nargues that he gave testimony that he actually took affirmative steps to discover the\n\nsource of the funds and was reasonably assured by Haruna and Ogundele that the funds\n\nwere legitimate, the jury was not required to believe his version of events.\n\n In addition, the defendants challenge the form of the willful blindness instruction\n\ngiven by the district court, but, after carefully reviewing the instruction, we find no\n\nreversable error.\n\n\n B\n\n Ogundele contends that the district court erred in instructing the jury on the\n\nelements of aggravated identity theft, particularly “the required mental state.”\n\n\n 23\n\fSpecifically, he appears to contend that the district court did not instruct the jury that the\n\ngovernment must show that he knew that the means of identification belonged to another\n\nperson. But the record does not support his argument. The court specifically instructed\n\nthe jury that “the government must prove that the means of identification was that of an\n\nactual person either living or dead, and that the defendant knew that the means of\n\nidentification was that of a natural person.” (Emphasis added).\n\n\n C\n\n Finally, Ogundele and Babatunde (adopting Ogundele’s argument) contend that\n\nthe court erred in giving the form of the aiding-and-abetting instruction that it gave when\n\napplied to aggravated identity theft, arguing that the instruction “did not sufficiently\n\ninform the jury of the required mental state” and relying on the Supreme Court’s decision\n\nin Rosemond v. United States, 572 U.S. 65 (2014). The Rosemond Court held that to\n\nprove that a defendant aided and abetted a violation of 18 U.S.C. § 924(c) — which\n\nprohibits using or carrying a firearm during and in relation to any crime of violence or\n\ndrug trafficking crime — the government must show “that the defendant actively\n\nparticipated in the underlying drug trafficking or violent crime with advance knowledge\n\nthat a confederate would use or carry a gun during the crime’s commission.” Id. at 67\n\n(emphasis added). It further concluded that the jury instructions given at Rosemond’s\n\ntrial “were erroneous because they failed to require that the defendant knew in advance\n\nthat one of his cohorts would be armed.” Id. Pointing to Rosemond, Ogundele argues\n\nthat the same “advanced knowledge” requirement should apply to the aggravated identity\n\n\n 24\n\ftheft statute, 18 U.S.C. § 1028A, and that the jury instructions given in this case were\n\ndeficient because they “could allow the jury to determine that the defendants were guilty\n\nof aiding and abetting the crime without prior knowledge of the aggravated nature of the\n\ncrime.”\n\n We disagree. As the Rosemond Court explained, “a person aids and abets a crime\n\nwhen (in addition to taking the requisite act) he intends to facilitate that offense’s\n\ncommission,” and “the intent must go to the specific and entire crime charged.” 572 U.S.\n\nat 76; see also id. at 77 (“[F]or purposes of aiding and abetting law, a person who\n\nactively participates in a criminal scheme knowing its extent and character intends that\n\nscheme’s commission”). The problem in Rosemond was that the challenged instruction\n\nallowed the jury to convict if the defendant (1) “knowingly and actively participated in\n\nthe drug trafficking crime” and (2) “knew his cohort used a firearm in the drug\n\ntrafficking crime,” id. at 82 (emphasis added), thus allowing a conviction even if the\n\ndefendant had no advance knowledge that one of his confederates would be carrying a\n\ngun. Here, by contrast, the district court instructed the jury that “the government must\n\nestablish the defendant knowingly participated in the aggravated identity theft charged in\n\nCounts Three through Six.” The instruction also required the government to “prove that\n\nthe defendant engaged in some affirmative conduct or overt act for the specific purpose\n\nof bringing about that crime.” And elsewhere, the instructions made clear that the\n\ndefendant must have “participate[d] in the crime as something he or she wished to bring\n\nabout,” “knowingly associate[d] him or herself with the criminal venture,” and sought\n\n“by his or her actions to make the criminal venture succeed.” Accordingly, we conclude\n\n 25\n\fthat there was no Rosemond problem with the aiding-and-abetting instruction given by\n\ndistrict court.\n\n\n VII\n\n Babatunde contends that the evidence was insufficient to support each of his\n\nconvictions — for conspiracy to commit wire fraud, conspiracy to commit money\n\nlaundering, and aggravated identity theft. Alternatively, he argues that, at the very least,\n\nthe district court should have granted his motion for a new trial based on the weakness of\n\nthe government’s case against him.\n\n As to his conviction for conspiracy to commit wire fraud, Babatunde argues that\n\n“there was absolutely no evidence tying [him] to the scheme to defraud the alleged\n\nvictims” and that instead the transactions at issue were “related to his automobile\n\nbusiness and from legitimate sources.” But while, as he notes, he “testified at trial that he\n\nwas not part of any scheme but was a legitimate businessman that performed a few\n\nfinancial transactions in relation to what he was led to believe was a legitimate business,”\n\nthe jury was not required to accept his account in light of the government’s substantial\n\nevidence to the contrary. Such evidence included Babatunde’s pattern of using other\n\npeople’s bank accounts to accept the fraudulent funds despite having his own bank\n\naccounts and his incriminating communications recovered from his cell phone, such as\n\ntext messages in which he instructed another charged coconspirator to structure\n\ntransactions to avoid a $10,000 reporting requirement.\n\n\n\n\n 26\n\f Similarly, this and other evidence was sufficient to support Babatunde’s\n\nconviction for conspiracy to commit money laundering. Babatunde argues that this\n\n“conviction cannot be sustained because [he] did not conspire to ‘conceal’ the funds.”\n\nBut that ignores how, for example, he wrote himself 11 checks totaling $70,000 in 2011\n\nsolely to move money from one bank account to another and how he quickly withdrew\n\nvictims’ money from the bank accounts he controlled, engaging a pattern of maxing out\n\nATM withdrawals.\n\n Finally, Babatunde argues that the evidence was insufficient to support his\n\nconviction for aggravated identity theft. The aggravated identity theft statute imposes a\n\nmandatory consecutive two-year prison sentence against anyone who, “during and in\n\nrelation to [a qualifying felony], knowingly transfers, possesses, or uses, without lawful\n\nauthority, a means of identification of another person.” 18 U.S.C. § 1028A(a)(1). Here,\n\nboth Babatunde and Oloyede were convicted of aggravated identity theft based on their\n\nuse of the name and bank account number of one of Babatunde’s sisters, a woman named\n\nAbiola Akinmboni. Babatunde argues, however, that he had Akinmboni’s permission to\n\nuse her account and therefore possessed “lawful authority.” But we have previously\n\nrejected this precise argument. See United States v. Otuya, 720 F.3d 183, 189 (4th Cir.\n\n2013) (“[I]t is obvious that, with or without permission from its rightful owner, a\n\ndefendant who uses the means of identification of another ‘during and in relation to any\n\nfelony violation enumerated’ in the statute necessarily lacks a form of authorization\n\nrecognized by law”); see also id. at 190 (“[T]he plain meaning of § 1028A(a)(1) is\n\n\n\n 27\n\funambiguous: one who uses a means of identification to commit an enumerated felony\n\ndoes not act with ‘lawful authority’”).\n\n Accordingly, we conclude that the evidence was sufficient to support each of\n\nBabatunde’s convictions and that the district court did not abuse its discretion in denying\n\nhis motion for a new trial.\n\n\n VIII\n\n Finally, three of the defendants raise issues pertaining to their sentences.\n\n First, Babatunde challenges the district court’s calculation of his advisory\n\nsentencing range — particularly, (1) its determination that he was accountable for a loss\n\nof more than $250,000 but less than $555,000, triggering a 12-level increase under\n\nU.S.S.G. § 2B1.1(b)(1)(G), as compared to the 8-level increase he argued was applicable\n\nfor a loss of $119,000; (2) its application of a 3-level enhancement under § 3B1.1(b) for\n\nhis role in the offense; and (3) its application of a 2-level enhancement under\n\n§ 2S1.1(b)(3) for sophisticated laundering. After carefully reviewing the record,\n\nhowever, we cannot conclude that the district court clearly erred in the factual findings\n\nsupporting any of these enhancements.\n\n Next, Ogundele challenges his sentence on the ground that the district court erred\n\nin its calculation of his advisory sentencing range by applying a 16-level increase to his\n\noffense level based on a finding that he was accountable for more than $1.5 million but\n\nless than $3.5 million in loss. The record shows, however, that this was a conservative\n\n\n\n\n 28\n\festimate of the loss for which he was accountable based on the activity in his own bank\n\naccounts.\n\n Finally, Oloyede challenges the district court’s decision to hold him accountable\n\nfor a loss amount of $1.6 million. But that determination too was based on a reasonable\n\nestimate of the fraudulent proceeds that flowed through Oloyede’s bank accounts. He\n\nalso argues more broadly that his sentence was both “procedurally and substantively\n\nunreasonable because the court failed to make an individualized assessment of all factors\n\nset forth in 18 U.S.C. § 3553(a) and in so doing imposed a sentence greater than\n\nnecessary to accomplish the goals of sentencing.” But the record reflects that the district\n\ncourt thoroughly considered how the § 3553(a) factors applied to Oloyede in imposing a\n\nsentence that was at the top of the advisory sentencing range.\n\n * * *\n\n For the foregoing reasons, we affirm the judgments of the district court.\n\n AFFIRMED\n\n\n\n\n 29\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Victor Oyewumi OLOYEDE, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Babatunde Emmanuel Popoola, A/K/A Emmanuel Popoola, A/K/A Tunde Popoola, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Mojisola Tinuola Popoola, A/K/A Mojisola Oluwakemi Tin Popoola, A/K/A Moji T. Popoola, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Gbenga Benson Ogundele, A/K/A Benson Ogundele, Defendant - Appellant.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-07-31\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 17-4102\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nVICTOR OYEWUMI OLOYEDE,\\n\\n Defendant - Appellant.\\n\\n\\n No. 17-4186\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nBABATUNDE EMMANUEL POPOOLA, a/k/a Emmanuel Popoola, a/k/a Tunde\\nPopoola,\\n\\n Defendant - Appellant.\\n\\n\\n No. 17-4191\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n v.\\n\\fMOJISOLA TINUOLA POPOOLA, a/k/a Mojisola Oluwakemi Tin Popoola, a/k/a\\nMoji T. Popoola,\\n\\n Defendant - Appellant.\\n\\n\\n No. 17-4207\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nGBENGA BENSON OGUNDELE, a/k/a Benson Ogundele,\\n\\n Defendant - Appellant.\\n\\n\\nAppeals from the United States District Court for the District of Maryland, at Greenbelt.\\nPaul W. Grimm, District Judge. (8:15-cr-00277-PWG-3) (8:15-cr-00277-PWG-5) (8:15-\\ncr-00277-PWG-7) (8:15-cr-00277-PWG-1)\\n\\n\\nArgued: December 13, 2018 Decided: July 31, 2019\\n\\n\\nBefore NIEMEYER, KING, and WYNN Circuit Judges.\\n\\n\\nAffirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge King\\nand Judge Wynn joined.\\n\\nARGUED: Justin Eisele, SEDDIQ LAW FIRM, Upper Marlboro, Maryland; John O.\\nIweanoge, II, THE IWEANOGES’ FIRM, PC, Washington, D.C.; Richard Alan\\nSeligman, LAW OFFICE OF RICHARD SELIGMAN, Washington, D.C.; Gerald Ruter,\\nLAW OFFICES OF GERALD C. RUTER, P.C., Baltimore, Maryland, for Appellants.\\nThomas Patrick Windom, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,\\nMaryland, for Appellee. ON BRIEF: Robert K. Hur, United States Attorney, Baltimore,\\nMaryland, Jennifer R. Sykes, Assistant United States Attorney, OFFICE OF THE\\nUNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.\\n\\n\\n 2\\n\\fNIEMEYER, Circuit Judge:\\n\\n The four defendants in these appeals, who were charged as participants in a\\n\\nconspiracy that involved numerous others, were tried together and convicted of\\n\\nconspiracy to commit wire fraud and related offenses based on an extensive online dating\\n\\nfraud scheme that induced elderly victims to transfer money to the defendants’ bank\\n\\naccounts based on postured romantic relationships. The district court found that the\\n\\ndefendants obtained over $2 million in this manner and sentenced the four defendants\\n\\nvariously from 18 months’ to 234 months’ imprisonment. From the judgments against\\n\\nthem, the defendants filed these appeals raising numerous pretrial, trial, and sentencing\\n\\nissues — most significantly, an issue relating to a pretrial motion to suppress and an issue\\n\\nrelating to the government’s use at trial of charts offered under Rule of Evidence 1006.\\n\\nAfter considering all of the issues raised, we affirm.\\n\\n\\n I\\n\\n In May 2015, a grand jury indicted 10 individuals, including the four defendants in\\n\\nthese appeals — Gbenga Benson Ogundele; his wife, Mojisola Tinuola Popoola; her\\n\\nbrother, Babatunde Emmanuel Popoola; and Victor Oyewumi Oloyede — for their\\n\\nparticipation in a widespread online dating fraud scheme that resulted in numerous\\n\\nelderly victims suffering substantial financial losses. According to the indictment, from\\n\\n2011 through 2015, coconspirators initiated sham romantic relationships with at least 17\\n\\nelderly victims throughout the country by searching online dating websites and then used\\n\\nfraudulent representations to convince the victims to transfer money to bank accounts\\n\\n\\n 3\\n\\fcontrolled by the defendants. The defendants were charged with transferring this money\\n\\nthrough various facilities to promote the conspiracy and to hide the nature and source of\\n\\nthe funds. Based on these allegations, the indictment charged all defendants with\\n\\nconspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, and conspiracy to\\n\\ncommit money laundering, in violation of 18 U.S.C. § 1956(h). In addition, it charged\\n\\nOgundele, Babatunde, and Oloyede with aggravated identify theft, in violation of 18\\n\\nU.S.C. § 1028A. The district court scheduled two separate trials for the 10 indicted\\n\\ndefendants, and the government’s case against Ogundele, Mojisola, Babatunde, and\\n\\nOloyede proceeded to trial first, beginning in October 2016.\\n\\n At trial, the government’s evidence included testimony from 11 victims of the\\n\\nfraud scheme, as well as a daughter of a victim who had recently died. The victims\\n\\ntestified as to how they had formed what they thought were meaningful long-distance\\n\\nrelationships with a person they met online and had eventually transferred significant\\n\\nsums of money for various reasons as requested by the person, only to realize later that\\n\\nthey had been defrauded. These victims’ testimony showed that, between November\\n\\n2012 and April 2014, five of them sent a total of approximately $140,000 to two business\\n\\nbank accounts controlled by Ogundele; that, during a six-month period in 2012, five of\\n\\nthem sent a total of $138,000 to two bank accounts controlled by Oloyede, with all but\\n\\n$3,000 of that going to a single business account; and that, in July 2014, one victim\\n\\ndeposited $5,000 in cash into an account in the name of Mojisola, who then promptly\\n\\nwrote a check for the same amount to a company controlled by her husband, Ogundele.\\n\\nIn addition, the government’s evidence showed that some of this and other money was\\n\\n 4\\n\\ftransferred to accounts controlled by Babatunde. For instance, on the same day in\\n\\nOctober 2012 that one victim deposited $20,000 into Oloyede’s business account,\\n\\n$10,000 was transferred from that account to an account that Babatunde controlled but\\n\\nwas in the name of one of his sisters.\\n\\n The government also presented testimony from employees of Bank of America,\\n\\nCapital One, and Wells Fargo regarding activity in approximately a dozen of the\\n\\ndefendants’ bank accounts, almost all of which had been closed by the banks during the\\n\\ncourse of the conspiracy. Bank records not only showed numerous wire transfers and\\n\\ncash deposits from the victims who testified but also showed other suspicious large cash\\n\\ndeposits made from States throughout the country. For example, bank records from\\n\\nMojisola’s Bank of America account, which had been closed in August 2014, showed\\n\\nthat it had received significant cash deposits or teller transfers from persons in Florida,\\n\\nNorth Carolina, Georgia, Michigan, and Tennessee and that the funds were then quickly\\n\\nwithdrawn or transferred. The records also showed that Mojisola’s account received\\n\\nseveral large wire transfers in 2011 from her half-brother, Mukhtar Haruna — a Nigerian\\n\\nnational and resident who was indicted with the others but never arraigned. These funds\\n\\nwere then transferred into an account controlled by Mojisola’s husband, Ogundele.\\n\\n Finally, the government presented testimony from numerous FBI agents about\\n\\nevidence recovered from search warrants of the defendants’ homes, phones, and email\\n\\naccounts. FBI agents also testified to post-arrest statements made by Ogundele, Oloyede,\\n\\nand Babatunde. And an FBI forensic accountant created charts detailing certain activity\\n\\n\\n\\n 5\\n\\fin the defendants’ bank accounts from 2011 through 2014 and presented those charts to\\n\\nthe jury at trial.\\n\\n After the government rested and the district court denied the defendants’ motions\\n\\nfor judgment of acquittal, the defendants called a number of witnesses, and Oloyede and\\n\\nBabatunde both testified in their own defense. Generally, their theory of the case was\\n\\nthat Haruna had made them believe that the money coming into their bank accounts was\\n\\nto purchase cars for export to Nigeria, thus blaming Haruna for the entire scheme. They\\n\\nalso placed blame on Ogundele.\\n\\n The jury convicted all four defendants on all counts, and the district court\\n\\nthereafter sentenced Ogundele and Oloyede each to 234 months’ imprisonment,\\n\\nBabatunde to 144 months’ imprisonment, and Mojisola to 18 months’ imprisonment.\\n\\n From the judgments entered against them, the defendants filed these appeals,\\n\\nwhich we then consolidated.\\n\\n\\n II\\n\\n During execution of a search warrant and an arrest warrant at Mojisola’s house,\\n\\nFBI Special Agent Monique Winkis handed Mojisola a locked cell phone that had been\\n\\nfound in her bedroom and asked her, “Could you please unlock your iPhone?” Mojisola\\n\\ntook the phone, entered her passcode, and handed the phone back to Agent Winkis, who\\n\\nthen gave the unlocked phone to a forensic examiner for it to be searched. Agent Winkis\\n\\ndid not ask for the passcode; Mojisola did not reveal the passcode to Agent Winkis; and\\n\\nAgent Winkis did not see Mojisola enter her passcode.\\n\\n\\n 6\\n\\f Mojisola filed a motion to suppress the contents of her cell phone in the district\\n\\ncourt, contending that Agent Winkis’s request to open her phone and her compliance with\\n\\nthat request without having been given Miranda warnings violated her Fifth Amendment\\n\\nright against self-incrimination. The district court denied the motion on the ground that\\n\\nMojisola’s entry of a passcode to unlock her phone was not a “communicative response”\\n\\nby her and therefore was not a testimonial statement subject to Miranda. It also found\\n\\nthat Agent Winkis’s request was not “coercive or threatening” and that Mojisola’s\\n\\ncompliance was “voluntary.”\\n\\n Mojisola now contends on appeal that, because she was in custody and not\\n\\ninformed of her Miranda rights, she “could not knowingly and voluntarily [have]\\n\\nwaive[d] her rights against self-incrimination.” Moreover, she argues that entering her\\n\\npasscode was a communicative act that amounted to self-incrimination.\\n\\n The government contends that Mojisola’s physical action of typing her passcode\\n\\ninto a phone was not a testimonial statement that was subject to Miranda and that, in any\\n\\nevent, the evidence obtained from her cell phone was nonetheless admissible under\\n\\nUnited States v. Patane, 542 U.S. 630 (2004) (plurality opinion), because her action was\\n\\nvoluntary.\\n\\n We thus are presented with the question of whether a person in custody, who has\\n\\nnot been given Miranda warnings, was compelled to incriminate herself in violation of\\n\\nthe Fifth Amendment when she voluntarily, pursuant to an officer’s request, used her\\n\\npasscode to open her cell phone but did not disclose the passcode.\\n\\n\\n\\n 7\\n\\f The Fifth Amendment provides that no person “shall be compelled in any criminal\\n\\ncase to be a witness against himself.” U.S. Const. amend. V. Therefore, a violation\\n\\noccurs when “the accused is [1] compelled [2] to make a testimonial communication\\n\\n[3] that is incriminating.” United States v. Sweets, 526 F.3d 122, 127 (4th Cir. 2007)\\n\\n(quoting Fisher v. United States, 425 U.S. 391, 408 (1976)). While a testimonial\\n\\ncommunication is most often in verbal or written form, it may also be made by an act. Id.\\n\\nBut to be a testimonial communication, the act must “relate a factual assertion or disclose\\n\\ninformation,” Doe v. United States, 487 U.S. 201, 210 (1988); it must “express the\\n\\ncontents of [the person’s] mind,” id. at 210 n.9.\\n\\n In this case, Mojisola is faced with the task of demonstrating that her simple act of\\n\\ntyping in the passcode out of the FBI’s agent’s view was a testimonial communication to\\n\\nthe agent. Certainly, Mojisola has not shown that her act communicated her cell phone’s\\n\\nunique passcode. Unlike a circumstance, for example, in which she gave the passcode to\\n\\nthe agent for the agent to enter, here she simply used the unexpressed contents of her\\n\\nmind to type in the passcode herself. See United States v. Hubbell, 530 U.S. 27, 43\\n\\n(2000) (distinguishing “surrender[ing] the key to a strongbox,” which is not\\n\\ncommunicative, from “telling an inquisitor the combination to a wall safe,” which is\\n\\ncommunicative).\\n\\n Mojisola argues nonetheless that “[o]nly through her communicative conduct of\\n\\nunlocking the iPhone was the government able to ascertain that it belonged to her” and\\n\\nthat her act was therefore a testimonial communication. Yet, the ownership of the phone\\n\\n\\n\\n 8\\n\\fwas neither an issue before the district court at the suppression hearing nor an issue\\n\\nbefore the jury.\\n\\n In any event, even were we to accept Mojisola’s argument that she made a\\n\\ntestimonial communication when she unlocked her phone, it would provide no\\n\\nmeaningful help to her defense because the fruit of that voluntary communication, even\\n\\nthough made without a Miranda warning, would nonetheless be admissible into evidence.\\n\\nIn Patane, officers failed to provide a Miranda warning to a suspect before asking him\\n\\nthe location of his firearm, which he then disclosed. 542 U.S. at 635. The plurality\\n\\nopinion in Patane deemed the firearm admissible, reasoning that “the Miranda rule is a\\n\\nprophylactic employed to protect against violations of the Self-Incrimination Clause” and\\n\\nthat the Clause “is not implicated by the admission into evidence of the physical fruit of a\\n\\nvoluntary statement.” Id. at 636 (emphasis added). The plurality therefore saw “no\\n\\njustification for extending the Miranda rule to this context,” explaining that “[t]he Clause\\n\\ncannot be violated by the introduction of nontestimonial evidence obtained as a result of\\n\\nvoluntary statements.” Id. at 636–38; see also id. at 644–45 (Kennedy, J., concurring)\\n\\n(agreeing with the plurality that “evidence obtained following an unwarned interrogation”\\n\\nis admissible). Accordingly, the admission into evidence of data from Mojisola’s phone\\n\\n— the fruit of her opening it — “present[ed] no risk that . . . coerced statements (however\\n\\ndefined) [would] be used against [her] at a criminal trial.” Id. at 643 (emphasis added).\\n\\n We conclude therefore that the district court did not err in denying Mojisola’s\\n\\nmotion to suppress.\\n\\n\\n\\n 9\\n\\f III\\n\\n Several defendants contend that the district court abused its discretion in admitting\\n\\ninto evidence under Federal Rule of Evidence 1006 a series of charts detailing selected\\n\\ndeposits made into their bank accounts. Ogundele and Oloyede note that the charts\\n\\nincluded deposits related to a “subjective list” of suspected victims and represented an\\n\\n“editorialized subsection of transactions.” They also maintain that many of the charts’\\n\\nentries, including those reflecting many of the cash deposits, were never proven to be\\n\\nrelated to fraudulent activity, but that admitting the charts into evidence implied that\\n\\nevery entry was fraudulent. Babatunde contends that the chart relating to his bank\\n\\naccount was erroneously admitted because there was no direct evidence that the account\\n\\nwas connected to fraudulent activity.\\n\\n In creating the charts introduced against Ogundele and Oloyede, FBI Forensic\\n\\nAccountant David Rutledge included selected deposits that had been made into the bank\\n\\naccounts consistent with the government’s theory of which deposits were tied to illegal\\n\\nactivity. For example, with respect to Ogundele’s accounts, while Rutledge included all\\n\\ncash deposits and all ATM deposits to the extent that bank records did not identify\\n\\nwhether it was a cash or check deposit, he included wire transfers only to the extent that\\n\\nthe bank statement identified the name of the sender and that name was on a list provided\\n\\nto him by the case agent. Similarly, he included check deposits only to the extent that the\\n\\ncheck was written by an individual on the list and out-of-state teller transfers only to the\\n\\nextent that a receipt associated with the transfer was included as an attachment in a batch\\n\\nof emails that Rutledge was provided.\\n\\n 10\\n\\f We agree with Ogundele and Oloyede that the charts relating to their accounts\\n\\nfailed to comport with Rule of Evidence 1006 because of their selectivity. They did not\\n\\nfully represent the accounts that they were purportedly summarizing. Rule 1006\\n\\nprovides:\\n\\n The proponent may use a summary, chart, or calculation to prove the\\n content of voluminous writings, recordings, or photographs that cannot be\\n conveniently examined in court. The proponent must make the originals or\\n duplicates available for examination or copying, or both, by other parties at\\n a reasonable time and place. And the court may order the proponent to\\n produce them in court.\\n\\nFed. R. Evid. 1006 (emphasis added). This rule authorizes the admission of charts into\\n\\nevidence that serve “as a surrogate for underlying voluminous records that would\\n\\notherwise be admissible into evidence,” thereby “reduc[ing] the volume of written\\n\\ndocuments that are introduced into evidence.” United States v. Janati, 374 F.3d 263, 272\\n\\n(4th Cir. 2004) (emphasis added). Stated otherwise, “the chart itself is admitted as\\n\\nevidence in order to give the jury evidence of the underlying documents,” id. at 273, and\\n\\ntherefore it must be an objectively accurate summarization of the underlying documents,\\n\\nnot a skewed selection of some of the documents to further the proponent’s theory of the\\n\\ncase, see id. at 272. “In this respect, Rule 1006 summary charts are distinguishable from\\n\\nother charts and summaries that may be presented under Federal Rule of Evidence 611(a)\\n\\nto facilitate the presentation and comprehension of evidence already in the record.” Id.\\n\\n(emphasis added). Rule 611(a) charts are not evidence themselves; they are used “merely\\n\\nto aid the jury in its understanding of the evidence that has already been admitted,” by,\\n\\nfor example, “reveal[ing] inferences drawn in a way that would assist the jury.” Id.\\n\\n\\n 11\\n\\f It is apparent that the government in this case was not using the charts as surrogate\\n\\nevidence offered in lieu of voluminous underlying bank records, but rather was seeking to\\n\\nhelp the jury understand how various related records demonstrated a pattern of suspicious\\n\\nactivity engaged in by the defendants. Thus, while the charts could have been shown to\\n\\nthe jury under Rule 611(a), it was improper to have admitted them into evidence under\\n\\nRule 1006. Nonetheless, in the circumstances of this case, we are confident that the error\\n\\ndid not affect the defendants’ substantial rights, particularly as the same information in\\n\\nthe same form could have been shown to the jury under Rule 611(a).\\n\\n But Ogundele and Oloyede argue further that their right to a fair trial was\\n\\nprejudiced because the government cherry-picked individual records, unfairly spinning\\n\\nthe facts. This argument, however, ignores the role of a trial, where each side selects the\\n\\nevidence to be presented to the jury. Each side can challenge facts and respond to the\\n\\nother’s facts. In this case, in creating the charts, the government applied criteria to help\\n\\npresent its theory of the case, and those criteria were clearly detailed to the jury. The\\n\\ndefendants were thus free to cross-examine the government’s witnesses about the\\n\\nsoundness of the selection, just as if the charts had been shown to the jury under Rule\\n\\n611(a).\\n\\n Babatunde contends with respect to the chart admitted under Rule 1006 for his\\n\\nbank account that, even though the chart did summarize all non-payroll deposits\\n\\ninvolving more than $1,000, the admission was erroneous because there was no direct\\n\\nevidence that the particular bank account represented by the chart was connected to\\n\\nfraudulent activity. But that objection goes to the relevance of the underlying bank\\n\\n 12\\n\\frecords — not to any requirement for admission of a chart under Rule 1006 — and those\\n\\nrecords were clearly relevant to the alleged money laundering activities and Babatunde’s\\n\\ninvolvement in them.\\n\\n\\n IV\\n\\n Next, Mojisola and Babatunde contend that the district court abused its discretion\\n\\nin denying their motions for a severance. They argue that, by being tried together with\\n\\nOgundele, they were denied the benefit of his testimony because he would not testify at a\\n\\njoint trial but, they believe, would have testified on their behalf had they been tried\\n\\nseparately. They also contend that they were prejudiced by a joint trial because of the\\n\\npossibility that the jury found them guilty by association. In denying this motion, the\\n\\ndistrict court concluded that they did not meet their threshold burden of showing that\\n\\nOgundele would waive his Fifth Amendment privilege and testify if there were a\\n\\nseverance. The court also rejected their argument that the disparity in the amount of\\n\\nevidence relating to them as compared to their codefendants warranted a severance.\\n\\n Federal Rule of Criminal Procedure 8(b) provides that the government may charge\\n\\ndefendants together “if they are alleged to have participated in the same act or\\n\\ntransaction, or in the same series of acts or transactions, constituting an offense or\\n\\noffenses,” while Rule 14 permits the district court to grant a severance if the joinder\\n\\n“appears to prejudice a defendant or the government.” In considering these rules, there is\\n\\n“a preference in the federal system for joint trials of defendants who are indicted\\n\\ntogether.” Zafiro v. United States, 506 U.S. 534, 537 (1993). Indeed, where, as here,\\n\\n\\n 13\\n\\f“defendants properly have been joined under Rule 8(b), a district court should grant a\\n\\nseverance under Rule 14 only if there is a serious risk that a joint trial would compromise\\n\\na specific trial right of one of the defendants, or prevent the jury from making a reliable\\n\\njudgment about guilt or innocence.” Id. at 539.\\n\\n In the case before us, Mojisola and Babatunde did not make the requisite showing.\\n\\nAs to obtaining Ogundele’s testimony, they were required to make a threshold showing\\n\\nthat it was likely “that [Ogundele] would testify at a second trial and waive his Fifth\\n\\nAmendment privilege.” United States v. Parodi, 703 F.2d 768, 779 (4th Cir. 1983).\\n\\nWhile they were not required to establish Ogundele’s willingness to testify at a severed\\n\\ntrial “to an absolute certainty,” they were required at least to show “[a] reasonable\\n\\nprobability . . . that the proffered testimony would, in fact[,] materialize.” Id. They did\\n\\nnot meet this threshold showing, however, conceding that they had no evidence that\\n\\nOgundele would waive his Fifth Amendment privilege. The district court accordingly\\n\\ndid not abuse its discretion in denying the severance motion on this basis.\\n\\n These defendants also contended in the district court that they would be prejudiced\\n\\nby the disparity in evidence against them and the other codefendants and by the “unfair\\n\\nspillover effect on [their] right to a fair trial.” But it would take an exceptional case to\\n\\ngrant a severance on this basis, and they have not made the necessary showing that the\\n\\ncourt abused its discretion. Indeed, we have previously recognized that “[a] defendant is\\n\\nnot entitled to severance merely because . . . the evidence against one defendant is not as\\n\\nstrong as that against the other.” United States v. Akinkoye, 185 F.3d 192, 197 (4th Cir.\\n\\n1999).\\n\\n 14\\n\\f At bottom, this is not one of the “rare” cases where a defendant properly joined\\n\\nunder Rule 8(b) with others has established that a severance was required to preserve his\\n\\nor her right to a fair trial. See United States v. Dinkins, 691 F.3d 358, 368 (4th Cir.\\n\\n2012). Accordingly, we affirm the district court’s denial of Mojisola and Babatunde’s\\n\\nmotions.\\n\\n\\n V\\n\\n Each defendant has raised challenges to evidentiary rulings made by the district\\n\\ncourt during the course of trial. Of course, it is well established that the district court, as\\n\\na trial court, has broad discretion to admit evidence in the management of a trial, and we\\n\\nwill overrule the district court’s evidentiary rulings only when the court has abused its\\n\\nbroad discretion to the prejudice of a party.\\n\\n\\n A\\n\\n First, Mojisola, Babatunde, and Ogundele contend that the district court abused its\\n\\ndiscretion in admitting inculpatory portions of a post-arrest statement given by Ogundele\\n\\nwhile excluding, as untrustworthy hearsay, other portions, including statements tending\\n\\nto exculpate Mojisola and Babatunde.\\n\\n After being arrested and read his Miranda rights, Ogundele agreed to be\\n\\ninterviewed by Special Agent Custer. In his statement, Ogundele said that he ran a used\\n\\ncar business and admitted that he used his business accounts to move money from the\\n\\nUnited States to Nigeria, working with Haruna, his brother-in-law in Nigeria, to do so.\\n\\nWhen shown a statement for one of his business bank accounts that reflected wire\\n\\n 15\\n\\ftransfers from various victims, he admitted that he did not always know the people who\\n\\nwere putting money into his account but stated that he believed they were exploring\\n\\nbusiness opportunities in Nigeria. After making those statements against his interests,\\n\\nOgundele also made statements to exculpate Babatunde and Mojisola. He said,\\n\\n“Babatunde Popoola does not help him with the business at all.” Similarly, he said that\\n\\nhis wife, Mojisola Popoola, was “not involved in the business at all,” but acknowledged\\n\\nthat after one of his accounts had been closed, she had “accepted deposits into her\\n\\naccount at [his] direction.” Nonetheless, he reiterated that she “does not know anything\\n\\nabout the business and [that] no one calls or contacts [her] to deal with the business.”\\n\\n At trial, the district court, applying Federal Rule of Evidence 801(d)(2)(A),\\n\\nallowed the government to introduce into evidence portions of the statement made by\\n\\nOgundele but excluded, as untrustworthy hearsay, the portions in which Ogundele\\n\\nexculpated Babatunde and Mojisola. In finding the exculpatory hearsay portions not\\n\\nsufficiently trustworthy to be admitted, the court explained that Ogundele was motivated\\n\\n“to shift blame away from” his wife and her brother “and onto himself.” The court also\\n\\nnoted “the nature and strength of the government’s proffered evidence.” The court\\n\\nrejected the defendants’ argument that the hearsay portions should be admitted under\\n\\nRule 106, the “rule of completeness,” noting that that rule only applies to written or\\n\\nrecorded statements and that, in any event, it could not be used to overrule explicit\\n\\nhearsay rules.\\n\\n Mojisola now contends that the court abused its discretion, arguing that the portion\\n\\nof the statement made by her husband about her accepting deposits into her account at his\\n\\n 16\\n\\fdirection rendered the entire exculpatory portion admissible under Rule 804(b)(3) as a\\n\\nstatement against Ogundele’s interest. Alternatively, she invokes Rule 807’s residual\\n\\nexception, which requires “equivalent circumstantial guarantees of trustworthiness.”\\n\\nWhile Rule 804(b)(3) does, as a general matter, provide a hearsay exception for\\n\\nstatements made against one’s interest, the particular portion of Ogundele’s statement\\n\\nthat Mojisola seeks to admit barely included any self-inculpatory material and was\\n\\ndirected mostly to shifting responsibility away from his wife. Thus, we conclude that the\\n\\ndistrict court did not abuse its discretion in relying on Ogundele’s motive for exculpating\\n\\nhis wife to find this portion of the statement untrustworthy. See Williamson v. United\\n\\nStates, 512 U.S. 594, 600–01 (1994) (holding that Rule 804(b)(3) “does not allow\\n\\nadmission of non-self-inculpatory statements, even if they are made within a broader\\n\\nnarrative that is generally self-inculpatory”); United States v. Dargan, 738 F.3d 643, 650\\n\\n(4th Cir. 2013) (identifying factors to assess trustworthiness).\\n\\n Ogundele and Babatunde also contend that the district court abused its discretion\\n\\nby not applying a common law rule of completeness to admit Ogundele’s entire post-\\n\\narrest statement. While they recognize that Rule 106 applies only to writings and\\n\\nrecorded statements, they maintain that there is a “still-viable common law on the rule of\\n\\ncompleteness” that should have allowed the entire statement to come in. While we doubt\\n\\nthat a residual common law rule of completeness survives Rule 106’s codification, we\\n\\nhold that any such common law rule cannot be used to justify the admission of\\n\\ninadmissible hearsay. See Fed. R. Evid. 802 (“Hearsay is not admissible unless any of\\n\\n\\n\\n 17\\n\\fthe following provides otherwise: a federal statute; these rules; or other rules prescribed\\n\\nby the Supreme Court”).\\n\\n Accordingly, we conclude that the district court did not abuse its discretion in\\n\\nallowing the government to introduce only portions of Ogundele’s post-arrest statement.\\n\\n\\n B\\n\\n In a similar vein, Babatunde contends that the district court abused its discretion in\\n\\nrestricting him from cross-examining an FBI agent about whether he had made certain\\n\\nexculpatory statements to that agent during his post-arrest interview. He argues that the\\n\\nstatements were not being offered for their truth but for the fact that he made them to the\\n\\nFBI. The district court rejected the argument, noting that if Babatunde wanted to rely on\\n\\nportions of his prior statement, he would have to take the stand and satisfy the\\n\\nrequirements of Rule 801(d)(1)(B) (providing that a statement is not hearsay if the\\n\\ndeclarant testifies and is subject to cross-examination about a prior consistent statement\\n\\nthat is offered to rebut a fabrication charge or to rehabilitate the declarant’s credibility).\\n\\nWe conclude the district court did not abuse its discretion in so ruling.\\n\\n\\n C\\n\\n Next, Babatunde contends that the district court abused its discretion in preventing\\n\\nhim from cross-examining Agent Custer about Custer’s knowledge of a Nigerian named\\n\\n“Marcus” — a man whom Babatunde claims was a car dealer in Nigeria with whom he\\n\\nwas doing legitimate business. The issue arose when counsel for Babatunde, cross-\\n\\nexamining Agent Custer, asked him if he knew to whom “chairman” referred in a\\n\\n 18\\n\\fcommunication in which an indicted coconspirator told Babatunde that the “chairman\\n\\nsaid [you] should give me $3900.” When Custer stated that he could not “answer that\\n\\nquestion with any specificity as [it] relates to this investigation,” Babatunde’s counsel\\n\\nsought to refresh his recollection by handing him a copy of a redacted email that Custer\\n\\nhad sent to the prosecutors describing information found on the coconspirator’s cell\\n\\nphone, including that Marcus’s phone number had been saved in the phone’s contacts\\n\\nunder “chairman.” After counsel attempted to describe the contents of the email, the\\n\\ngovernment objected, leading to a bench conference where Babatunde’s counsel stated\\n\\nthat he was trying to elicit that Agent Custer had “identified who Marcus is.” The court\\n\\nfirst indicated that Babatunde’s counsel could ask the agent “if, based on his refreshed\\n\\nrecollection, he knows who Marcus is,” but then the government indicated that on\\n\\nredirect, it would “ask the agent if he had seen other people in other documents\\n\\nreferenced as chairman,” which would create a problem because Ogundele is also\\n\\n“referenced as chairman in various other communications.” To avoid the confusion, the\\n\\ncourt then instructed Babatunde’s counsel simply not to “refer to the name Marcus.”\\n\\n We conclude that the district court did not abuse its discretion in so ruling and, in\\n\\nany event, any error was certainly not so serious as to warrant vacating Babatunde’s\\n\\nconvictions. Despite Babatunde’s assertions to the contrary, it is far from clear that\\n\\n“Marcus” was not also involved in the scheme, and if Babatunde’s counsel had been\\n\\nallowed to establish that the government had learned of Marcus during its investigation,\\n\\nthat fact would likely have done little to show that Babatunde’s dealings with Marcus\\n\\nwere legitimate.\\n\\n 19\\n\\f D\\n\\n Babatunde also contends that while the government introduced evidence at trial to\\n\\nshow his sophistication in tax and banking matters — including a college transcript\\n\\nreflecting his high grades in accounting courses — the court erroneously prevented his\\n\\ncounsel from eliciting from Agent Custer that Custer was aware of other fraud schemes\\n\\ntargeting attorneys in an effort to show that even sophisticated individuals could be fraud\\n\\nvictims. We conclude that the district court did not abuse its discretion in excluding this\\n\\nevidence as irrelevant. Moreover, even if its exclusion was error, it was clearly harmless.\\n\\n\\n E\\n\\n Babatunde contends finally that the district court abused its discretion in admitting\\n\\nhis tax returns for 2011 through 2013, arguing that “[t]his was simply done to inflame the\\n\\njury against [him] by suggesting [he] was not paying taxes on taxable income” and thus\\n\\n“committing a separate crime, tax evasion.” Again, we conclude that the court did not\\n\\nabuse its discretion in admitting the tax returns. The fact that Babatunde did not report\\n\\nthe substantial sums flowing through his account was relevant to the government’s effort\\n\\nto show that the funds were ill-gotten.\\n\\n\\n F\\n\\n Mojisola contends that the district court abused its discretion in allowing the\\n\\ngovernment to introduce (1) her 2013 federal bankruptcy filing; (2) her 2013 Maryland\\n\\nwelfare and food stamp application; and (3) her application to purchase a timeshare in\\n\\n2014 — none of which reported the funds that came through her bank account during the\\n\\n 20\\n\\frelevant time period. She asserts that the “government’s theory of admissibility” — that\\n\\nher failure to disclose those funds in those documents tended to show that she knew that\\n\\nthe funds coming through her account were illegitimate — “was based on a false premise\\n\\nabsent establishing through an expert witness that the money flowing in and out of her\\n\\naccount was her income [that] she had a duty to disclose on these various forms.”\\n\\nInvoking Federal Rules of Evidence 404(b) and 403, she maintains that the admission of\\n\\nthis evidence constituted a “thinly veiled attack on [her] character and any legitimate\\n\\nprobative value was outweighed by the serious risk of unfair prejudice.”\\n\\n We conclude, however, that these documents were admissible under Rule 404(b)\\n\\nas both relevant to and probative of her knowledge that the funds coming into her bank\\n\\naccount were illegitimate. See Fed. R. Evid. 404(b) (providing that evidence of a crime,\\n\\nwrong, or other act, while not admissible to prove a person’s character, is admissible for\\n\\nproving knowledge); see also United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997).\\n\\nMojisola was, of course, free to counter that inference by showing that she had no duty to\\n\\ndisclose the funds on the various forms because they only passed through her account.\\n\\n Moreover, we conclude that the district court did not abuse its discretion in ruling\\n\\nthat the probative value of the evidence was not substantially outweighed by a danger of\\n\\nunfair prejudice. See Fed. R. Evid. 403; Queen, 132 F.3d at 997–98.\\n\\n\\n VI\\n\\n The defendants next contend that the district court erred in giving three particular\\n\\ninstructions to the jury. We address each in turn.\\n\\n\\n 21\\n\\f A\\n\\n First, all defendants contend that the district court erred in giving a willful\\n\\nblindness instruction to the jury, maintaining “that there was not sufficient evidence as a\\n\\nthreshold matter to support the assertion that [they] deliberately avoided learning the\\n\\ntruth.”\\n\\n The willful blindness doctrine “is premised on the idea that defendants should not\\n\\nbe permitted to ‘escape the reach’ of criminal statutes that require proof that a defendant\\n\\nacted knowingly or willfully ‘by deliberately shielding themselves from clear evidence of\\n\\ncritical facts that are strongly suggested by the circumstances.’” United States v. Hale,\\n\\n857 F.3d 158, 168 (4th Cir. 2017) (quoting Global-Tech Appliances, Inc. v. SEB S.A., 563\\n\\nU.S. 754, 766 (2011)). “But, to ensure that the willful blindness doctrine retains ‘an\\n\\nappropriately limited scope that surpasses recklessness and negligence,’ its application\\n\\nhas ‘two basic requirements: (1) the defendant must subjectively believe that there is a\\n\\nhigh probability that a fact exists and (2) the defendant must take deliberate actions to\\n\\navoid learning of that fact.’” Id. (quoting Global-Tech Appliances, 563 U.S. at 769).\\n\\nThus, we have made clear that while “requests for willful blindness instructions should be\\n\\nhandled with caution,” it is nonetheless “appropriate to instruct the jury on willful\\n\\nblindness when the defendant claims lack of guilty knowledge in the face of evidence\\n\\nsupporting an inference of deliberate ignorance.” Id. (cleaned up).\\n\\n We conclude that, in this case, the evidence justified the district court’s decision to\\n\\ninstruct the jury on willful blindness, as it amply allowed the inference that the\\n\\ndefendants “subjectively believe[d] that there [was] a high probability” that the funds\\n\\n 22\\n\\fcoming into their bank accounts were illicit. Global-Tech Appliances, 563 U.S. at 769.\\n\\nFor instance, there was evidence that when banks closed certain defendants’ bank\\n\\naccounts, the defendants simply opened new ones and continued the same activity. There\\n\\nwas also evidence that many of the defendants’ bank statements reflected significant wire\\n\\ntransfers from individuals they did not know. And certain defendants took deliberate\\n\\nactions to avoid confirming that the money in fact represented proceeds of fraud. For\\n\\nexample, Ogundele indicated to the FBI that he told Haruna that he was uncomfortable\\n\\nseeing those names on his bank statements and that the deposits should be in cash or\\n\\notherwise structured to avoid that. The deposits into Oloyede’s accounts followed a\\n\\nsimilar pattern. Similarly, the jury could have inferred that Mojisola thought it was\\n\\nhighly likely that the funds flowing through her account were illegitimate but was careful\\n\\nnever to confirm the details of the operation with her husband. And while Oloyede\\n\\nargues that he gave testimony that he actually took affirmative steps to discover the\\n\\nsource of the funds and was reasonably assured by Haruna and Ogundele that the funds\\n\\nwere legitimate, the jury was not required to believe his version of events.\\n\\n In addition, the defendants challenge the form of the willful blindness instruction\\n\\ngiven by the district court, but, after carefully reviewing the instruction, we find no\\n\\nreversable error.\\n\\n\\n B\\n\\n Ogundele contends that the district court erred in instructing the jury on the\\n\\nelements of aggravated identity theft, particularly “the required mental state.”\\n\\n\\n 23\\n\\fSpecifically, he appears to contend that the district court did not instruct the jury that the\\n\\ngovernment must show that he knew that the means of identification belonged to another\\n\\nperson. But the record does not support his argument. The court specifically instructed\\n\\nthe jury that “the government must prove that the means of identification was that of an\\n\\nactual person either living or dead, and that the defendant knew that the means of\\n\\nidentification was that of a natural person.” (Emphasis added).\\n\\n\\n C\\n\\n Finally, Ogundele and Babatunde (adopting Ogundele’s argument) contend that\\n\\nthe court erred in giving the form of the aiding-and-abetting instruction that it gave when\\n\\napplied to aggravated identity theft, arguing that the instruction “did not sufficiently\\n\\ninform the jury of the required mental state” and relying on the Supreme Court’s decision\\n\\nin Rosemond v. United States, 572 U.S. 65 (2014). The Rosemond Court held that to\\n\\nprove that a defendant aided and abetted a violation of 18 U.S.C. § 924(c) — which\\n\\nprohibits using or carrying a firearm during and in relation to any crime of violence or\\n\\ndrug trafficking crime — the government must show “that the defendant actively\\n\\nparticipated in the underlying drug trafficking or violent crime with advance knowledge\\n\\nthat a confederate would use or carry a gun during the crime’s commission.” Id. at 67\\n\\n(emphasis added). It further concluded that the jury instructions given at Rosemond’s\\n\\ntrial “were erroneous because they failed to require that the defendant knew in advance\\n\\nthat one of his cohorts would be armed.” Id. Pointing to Rosemond, Ogundele argues\\n\\nthat the same “advanced knowledge” requirement should apply to the aggravated identity\\n\\n\\n 24\\n\\ftheft statute, 18 U.S.C. § 1028A, and that the jury instructions given in this case were\\n\\ndeficient because they “could allow the jury to determine that the defendants were guilty\\n\\nof aiding and abetting the crime without prior knowledge of the aggravated nature of the\\n\\ncrime.”\\n\\n We disagree. As the Rosemond Court explained, “a person aids and abets a crime\\n\\nwhen (in addition to taking the requisite act) he intends to facilitate that offense’s\\n\\ncommission,” and “the intent must go to the specific and entire crime charged.” 572 U.S.\\n\\nat 76; see also id. at 77 (“[F]or purposes of aiding and abetting law, a person who\\n\\nactively participates in a criminal scheme knowing its extent and character intends that\\n\\nscheme’s commission”). The problem in Rosemond was that the challenged instruction\\n\\nallowed the jury to convict if the defendant (1) “knowingly and actively participated in\\n\\nthe drug trafficking crime” and (2) “knew his cohort used a firearm in the drug\\n\\ntrafficking crime,” id. at 82 (emphasis added), thus allowing a conviction even if the\\n\\ndefendant had no advance knowledge that one of his confederates would be carrying a\\n\\ngun. Here, by contrast, the district court instructed the jury that “the government must\\n\\nestablish the defendant knowingly participated in the aggravated identity theft charged in\\n\\nCounts Three through Six.” The instruction also required the government to “prove that\\n\\nthe defendant engaged in some affirmative conduct or overt act for the specific purpose\\n\\nof bringing about that crime.” And elsewhere, the instructions made clear that the\\n\\ndefendant must have “participate[d] in the crime as something he or she wished to bring\\n\\nabout,” “knowingly associate[d] him or herself with the criminal venture,” and sought\\n\\n“by his or her actions to make the criminal venture succeed.” Accordingly, we conclude\\n\\n 25\\n\\fthat there was no Rosemond problem with the aiding-and-abetting instruction given by\\n\\ndistrict court.\\n\\n\\n VII\\n\\n Babatunde contends that the evidence was insufficient to support each of his\\n\\nconvictions — for conspiracy to commit wire fraud, conspiracy to commit money\\n\\nlaundering, and aggravated identity theft. Alternatively, he argues that, at the very least,\\n\\nthe district court should have granted his motion for a new trial based on the weakness of\\n\\nthe government’s case against him.\\n\\n As to his conviction for conspiracy to commit wire fraud, Babatunde argues that\\n\\n“there was absolutely no evidence tying [him] to the scheme to defraud the alleged\\n\\nvictims” and that instead the transactions at issue were “related to his automobile\\n\\nbusiness and from legitimate sources.” But while, as he notes, he “testified at trial that he\\n\\nwas not part of any scheme but was a legitimate businessman that performed a few\\n\\nfinancial transactions in relation to what he was led to believe was a legitimate business,”\\n\\nthe jury was not required to accept his account in light of the government’s substantial\\n\\nevidence to the contrary. Such evidence included Babatunde’s pattern of using other\\n\\npeople’s bank accounts to accept the fraudulent funds despite having his own bank\\n\\naccounts and his incriminating communications recovered from his cell phone, such as\\n\\ntext messages in which he instructed another charged coconspirator to structure\\n\\ntransactions to avoid a $10,000 reporting requirement.\\n\\n\\n\\n\\n 26\\n\\f Similarly, this and other evidence was sufficient to support Babatunde’s\\n\\nconviction for conspiracy to commit money laundering. Babatunde argues that this\\n\\n“conviction cannot be sustained because [he] did not conspire to ‘conceal’ the funds.”\\n\\nBut that ignores how, for example, he wrote himself 11 checks totaling $70,000 in 2011\\n\\nsolely to move money from one bank account to another and how he quickly withdrew\\n\\nvictims’ money from the bank accounts he controlled, engaging a pattern of maxing out\\n\\nATM withdrawals.\\n\\n Finally, Babatunde argues that the evidence was insufficient to support his\\n\\nconviction for aggravated identity theft. The aggravated identity theft statute imposes a\\n\\nmandatory consecutive two-year prison sentence against anyone who, “during and in\\n\\nrelation to [a qualifying felony], knowingly transfers, possesses, or uses, without lawful\\n\\nauthority, a means of identification of another person.” 18 U.S.C. § 1028A(a)(1). Here,\\n\\nboth Babatunde and Oloyede were convicted of aggravated identity theft based on their\\n\\nuse of the name and bank account number of one of Babatunde’s sisters, a woman named\\n\\nAbiola Akinmboni. Babatunde argues, however, that he had Akinmboni’s permission to\\n\\nuse her account and therefore possessed “lawful authority.” But we have previously\\n\\nrejected this precise argument. See United States v. Otuya, 720 F.3d 183, 189 (4th Cir.\\n\\n2013) (“[I]t is obvious that, with or without permission from its rightful owner, a\\n\\ndefendant who uses the means of identification of another ‘during and in relation to any\\n\\nfelony violation enumerated’ in the statute necessarily lacks a form of authorization\\n\\nrecognized by law”); see also id. at 190 (“[T]he plain meaning of § 1028A(a)(1) is\\n\\n\\n\\n 27\\n\\funambiguous: one who uses a means of identification to commit an enumerated felony\\n\\ndoes not act with ‘lawful authority’”).\\n\\n Accordingly, we conclude that the evidence was sufficient to support each of\\n\\nBabatunde’s convictions and that the district court did not abuse its discretion in denying\\n\\nhis motion for a new trial.\\n\\n\\n VIII\\n\\n Finally, three of the defendants raise issues pertaining to their sentences.\\n\\n First, Babatunde challenges the district court’s calculation of his advisory\\n\\nsentencing range — particularly, (1) its determination that he was accountable for a loss\\n\\nof more than $250,000 but less than $555,000, triggering a 12-level increase under\\n\\nU.S.S.G. § 2B1.1(b)(1)(G), as compared to the 8-level increase he argued was applicable\\n\\nfor a loss of $119,000; (2) its application of a 3-level enhancement under § 3B1.1(b) for\\n\\nhis role in the offense; and (3) its application of a 2-level enhancement under\\n\\n§ 2S1.1(b)(3) for sophisticated laundering. After carefully reviewing the record,\\n\\nhowever, we cannot conclude that the district court clearly erred in the factual findings\\n\\nsupporting any of these enhancements.\\n\\n Next, Ogundele challenges his sentence on the ground that the district court erred\\n\\nin its calculation of his advisory sentencing range by applying a 16-level increase to his\\n\\noffense level based on a finding that he was accountable for more than $1.5 million but\\n\\nless than $3.5 million in loss. The record shows, however, that this was a conservative\\n\\n\\n\\n\\n 28\\n\\festimate of the loss for which he was accountable based on the activity in his own bank\\n\\naccounts.\\n\\n Finally, Oloyede challenges the district court’s decision to hold him accountable\\n\\nfor a loss amount of $1.6 million. But that determination too was based on a reasonable\\n\\nestimate of the fraudulent proceeds that flowed through Oloyede’s bank accounts. He\\n\\nalso argues more broadly that his sentence was both “procedurally and substantively\\n\\nunreasonable because the court failed to make an individualized assessment of all factors\\n\\nset forth in 18 U.S.C. § 3553(a) and in so doing imposed a sentence greater than\\n\\nnecessary to accomplish the goals of sentencing.” But the record reflects that the district\\n\\ncourt thoroughly considered how the § 3553(a) factors applied to Oloyede in imposing a\\n\\nsentence that was at the top of the advisory sentencing range.\\n\\n * * *\\n\\n For the foregoing reasons, we affirm the judgments of the district court.\\n\\n AFFIRMED\\n\\n\\n\\n\\n 29\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2969,"cells":{"id":{"kind":"number","value":4644413,"string":"4,644,413"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Daniel Lamont MATHIS, A/K/A Gunna, A/K/A Mooch, A/K/A D-Man, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Mersadies Lachelle Shelton, A/K/A Lady Gunns, A/K/A Maisha Love Uhuru, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Shantai Monique Shelton, A/K/A Tai, A/K/A Lady Blaze, A/K/A Boss Lady, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Kweli Uhuru, A/K/A Travis Leon Bell, A/K/A K. Gunns, A/K/A Black Wolf, A/K/A Babi, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Anthony Darnell Stokes, A/K/A Face, A/K/A Black Face, A/K/A Kenyata Baraka, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Halisi Uhuru, A/K/A Arthur Lee Gert Wright, A/K/A Gritty, A/K/A Bones, A/K/A Big Homey, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Daniel Mathis"},"decision_date":{"kind":"string","value":"2019-07-31"},"docket_number":{"kind":"string","value":"16-4633; 16-4635; 16-4637; 16-4641; 16-4837; 16-4838"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fourth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Keenan, Diaz, Duncan\", \"parties\": \"\", \"opinions\": [{\"author\": \"BARBARA MILANO KEENAN, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"PUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 16-4633\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nDANIEL LAMONT MATHIS, a/k/a Gunna, a/k/a Mooch, a/k/a D-Man,\\n\\n Defendant - Appellant.\\n\\n\\n No. 16-4635\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nMERSADIES LACHELLE SHELTON, a/k/a Lady Gunns, a/k/a Maisha Love\\nUhuru,\\n\\n Defendant - Appellant.\\n\\n\\n No. 16-4637\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\fSHANTAI MONIQUE SHELTON, a/k/a Tai, a/k/a Lady Blaze, a/k/a Boss Lady,\\n\\n Defendant - Appellant.\\n\\n\\n No. 16-4641\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nKWELI UHURU, a/k/a Travis Leon Bell, a/k/a K. Gunns, a/k/a Black Wolf, a/k/a\\nBabi,\\n\\n Defendant - Appellant.\\n\\n\\n No. 16-4837\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nANTHONY DARNELL STOKES, a/k/a Face, a/k/a Black Face, a/k/a Kenyata\\nBaraka,\\n\\n Defendant - Appellant.\\n\\n\\n No. 16-4838\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n\\n 2\\n\\f v.\\n\\nHALISI UHURU, a/k/a Arthur Lee Gert Wright, a/k/a Gritty, a/k/a Bones, a/k/a Big\\nHomey,\\n\\n Defendant - Appellant.\\n\\n\\nAppeals from the United States District Court for the Western District of Virginia, at\\nCharlottesville. Glen E. Conrad, District Judge. (3:14-cr-00016-GEC-JCH-1; 3:14-cr-\\n00016-GEC-JCH-2; 3:14-cr-00016-GEC-JCH-3; 3:14-cr-00016-GEC-JCH-4; 3:14-cr-\\n00016-GEC-JCH-6; 3:14-cr-00016-GEC-JCH-7)\\n\\n\\nArgued: January 24, 2018 Decided: July 31, 2019\\n\\n\\nBefore KEENAN and DIAZ, Circuit Judges, and DUNCAN, Senior Circuit Judge.\\n\\n\\nAffirmed in part, vacated in part, and remanded by published opinion. Judge Keenan wrote\\nthe opinion, in which Judge Diaz and Senior Judge Duncan joined.\\n\\n\\nARGUED: Frederick T. Heblich, Jr., OFFICE OF THE FEDERAL PUBLIC\\nDEFENDER, Charlottesville, Virginia, for Appellant Daniel Lamont Mathis. Paul Graham\\nBeers, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke, Virginia, for\\nAppellant Anthony Darnell Stokes. Christopher R. Kavanaugh, OFFICE OF THE\\nUNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF:\\nLarry W. Shelton, Federal Public Defender, Roanoke, Virginia, Geremy C. Kamens,\\nFederal Public Defender, Alexandria, Virginia, Paul G. Gill, Assistant Federal Public\\nDefender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia;\\nAaron Lee Cook, Harrisonburg, Virginia; David Anthony Eustis, Charlottesville, Virginia;\\nRhonda E. Quagliana, Charlottesville, Virginia; Michael T. Hemenway, Charlottesville,\\nVirginia; Sherwin John Jacobs, Harrisonburg, Virginia, for Appellants. Rick A.\\nMountcastle, Acting United States Attorney, Roanoke, Virginia, Ronald M. Huber,\\nAssistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,\\nCharlottesville, Virginia, for Appellee.\\n\\n\\n\\n\\n 3\\n\\fBARBARA MILANO KEENAN, Circuit Judge:\\n\\n This case involves the prosecution of several members of a violent street gang\\n\\nknown as the Double Nine Goon Syndikate (DNGS). After a multi-week trial, a jury\\n\\nconvicted Halisi Uhuru (Halisi), Anthony Stokes (Stokes), Kweli Uhuru (Kweli),\\n\\nMersadies Shelton (Mersadies), Shantai Shelton (Shantai), and Daniel Mathis (Mathis)\\n\\n(collectively, the defendants) of conspiracy to violate the Racketeer Influenced and Corrupt\\n\\nOrganizations Act (RICO), 18 U.S.C. § 1962(d), based on their activities related to the\\n\\ngang.\\n\\n Mathis, Shantai, Mersadies, and Kweli (collectively, the capital defendants) also\\n\\nwere convicted, in relation to the murder of an off-duty police officer, of violent crimes in\\n\\naid of racketeering activity in violation of 18 U.S.C. § 1959 (VICAR) by committing\\n\\nkidnapping and murder under Virginia law, as well as witness tampering by means of\\n\\nmurder in violation of 18 U.S.C. § 1512(a). The capital defendants were sentenced to serve\\n\\nterms of life imprisonment. Halisi and Stokes additionally were convicted of obstruction\\n\\nof justice in violation of 18 U.S.C. § 1512(c)(1). 1\\n\\n On appeal, the defendants raise several challenges concerning their trial and\\n\\nsentences. Upon our review of these arguments, we vacate in part with respect to the capital\\n\\ndefendants’ convictions that are predicated on commission of kidnapping under Virginia\\n\\n\\n\\n 1\\n The other crimes of conviction include Hobbs Act robberies in violation of 18\\nU.S.C. § 1951(a), VICAR offenses in violation of 18 U.S.C. § 1959, and various\\nconvictions for the use or carry of a firearm during and in relation to a violent crime in\\nviolation of 18 U.S.C. § 924(c).\\n\\n 4\\n\\flaw. Accordingly, we also remand the capital defendants’ convictions for resentencing.\\n\\nWe affirm the balance of the district court’s judgments.\\n\\n\\n\\n I.\\n\\n The Bloods is a nationwide street gang. 2 Groups of Bloods are organized into “sets”\\n\\nor smaller, individual groups of Bloods. One of these sets, DNGS, was founded by Halisi,\\n\\nStokes, and Kweli in 2013 during their incarceration for crimes unrelated to the present\\n\\ncase.\\n\\n DNGS operates through a hierarchical structure. Halisi served as “high OG” or\\n\\n“Double OG,” DNGS’s leader. Stokes was second in command as “low [OG].” Kweli\\n\\nalso held a leadership role with the rank of “OG,” “Big Homey,” or a “Low 020.” Another\\n\\nDNGS leader was responsible for operations conducted by incarcerated DNGS members.\\n\\nThese four individuals composed DNGS’s “Roundtable,” or leadership council. Reporting\\n\\nto the council were members organized by rank, including sergeant, lieutenant, and major.\\n\\nNew DNGS members held the title of “soldier.”\\n\\n Upon gaining membership into the gang, members were given notebooks to study\\n\\nthat included the rules and the history of the Bloods gang and the DNGS set. Gang\\n\\nmembers communicated using certain codes and phrases in an effort to ensure that their\\n\\ncommunications remained incomprehensible to law enforcement authorities and others.\\n\\n\\n\\n\\n 2\\n We set forth the facts in the light most favorable to the government, the prevailing\\nparty at trial. Evans v. United States, 504 U.S. 255, 257 (1996).\\n 5\\n\\fMembers outwardly reflected their association with the Bloods and DNGS by wearing red\\n\\nclothing items, including red bandanas, and by obtaining tattoos reflecting gang insignia.\\n\\n DNGS financed itself through the proceeds of various illegal activities undertaken\\n\\nby members, including armed robberies, home invasions, and burglaries. Members were\\n\\nexpected to “put in work” to advance their rank in the gang, that is, to commit crimes in\\n\\norder to show their commitment and loyalty. If a member refused to “put in work,” that\\n\\nmember likely would have been “violated,” or beaten.\\n\\n Both while imprisoned and after their release, Stokes, Kweli, and Halisi began\\n\\nrecruiting new members to the newly formed DNGS set, including Shantai, Mersadies, and\\n\\nMathis. As the gang’s membership grew, DNGS members “put in work” committing a\\n\\nseries of crimes from late 2013 into early 2014. This spree of illegal activities included a\\n\\nnumber of armed robberies of convenience stores, home invasions, burglaries, and other\\n\\ncrimes committed in central Virginia.\\n\\n On the night of January 31, 2014, the capital defendants attacked Kevin Quick\\n\\n(Quick), an off-duty reserve captain with the Waynesboro, Virginia, Police Department, as\\n\\nhe was departing his vehicle. The four defendants compelled Quick back into his vehicle\\n\\nat gunpoint, drove him to a nearby ATM, and forced him to withdraw money from his\\n\\naccount. After learning that Quick was a police officer, and realizing that Quick had\\n\\n“already seen their face[s],” the capital defendants decided that “it was too late . . . to let\\n\\n[Quick] go.” They drove Quick to a remote area off the main roadway, removed Quick\\n\\n\\n\\n\\n 6\\n\\ffrom the car, and fired a single shot into Quick’s head, killing him and leaving his body\\n\\nbehind. 3\\n\\n The next day, the capital defendants met with Halisi and Stokes in Manassas,\\n\\nVirginia. The defendants rented two hotel rooms to host a “B-House,” or a meeting of\\n\\nDNGS members. Throughout that day, the defendants and other DNGS members\\n\\ndiscussed potential drug trafficking plans and engaged with other drug dealers in\\n\\ntransactions involving the distribution of quantities of drugs, including crack cocaine.\\n\\n The capital defendants left the hotel the next morning and drove in Quick’s vehicle\\n\\nto Front Royal, Virginia. Concerned that the vehicle could link them to the murder, the\\n\\ncapital defendants bought bleach, rubber gloves, and a jug to hold gasoline for setting the\\n\\nvehicle on fire. Leaving Kweli behind, Mathis, Shantai, and Mersadies drove the vehicle\\n\\nto a friend’s house where they cleaned the vehicle with bleach.\\n\\n Later that day, Mathis and Mersadies committed a robbery. During the robbery,\\n\\nMathis fired one shot from his pistol. Investigators later recovered a bullet and a cartridge\\n\\nfrom the scene of this robbery and matched these items through forensic testing to the\\n\\nweapon used in Quick’s murder and a previous robbery.\\n\\n Mathis and Mersadies quickly left the scene of the robbery in Quick’s vehicle,\\n\\nwhich malfunctioned shortly thereafter. They pushed the disabled vehicle to a nearby\\n\\ndriveway and doused the vehicle with additional bleach. After receiving a call from\\n\\nMersadies asking for help, Halisi and Stokes decided that Stokes would drive to meet\\n\\n\\n\\n 3\\n The record does not show which of the capital defendants fired the fatal shot.\\n 7\\n\\fMersadies and Mathis, as well as Shantai, who had reunited with Mersadies and Mathis.\\n\\nOnce Stokes reached the group, Mathis and Shantai told him that Quick’s vehicle needed\\n\\nto be destroyed, but Stokes stated that they would “find a way to get rid of it the next day.”\\n\\n Stokes and Halisi later obtained a hotel room in which Mersadies, Mathis, and\\n\\nShantai could “hide out.” 4 As Quick’s disappearance became publicized, Mersadies,\\n\\nMathis, and Shantai discussed absconding to Montana to avoid being arrested. Mersadies\\n\\ninformed Kweli of these discussions through frequent text messages.\\n\\n While Kweli was attempting to have Quick’s vehicle destroyed, law enforcement\\n\\nofficers located the abandoned vehicle. Evidence technicians recovered the following\\n\\nevidence from the vehicle: Kweli’s fingerprint on Quick’s driver’s license, which was\\n\\nfound in Quick’s wallet inside the vehicle; fingerprints belonging to Mathis, Shantai, and\\n\\nMersadies on the vehicle or on items within the vehicle; Mersadies’ DNA on a piece of\\n\\nchewing gum left in the vehicle’s ashtray; and Mathis’ DNA on rubber gloves left in the\\n\\nvehicle.\\n\\n Once news media reported that Quick’s vehicle had been recovered, the defendants\\n\\nplanned their escape to Montana and destroyed other evidence related to their crimes.\\n\\nHalisi ordered Leslie Casterlow (Casterlow), who frequently acted as a drug courier for\\n\\nDNGS, to “get rid of” Quick’s ATM card. Kweli ordered the other defendants to delete\\n\\nany incriminating text messages. Also, Shantai and one other DNGS member\\n\\ndisassembled the gun used to kill Quick and placed the gun components in a pillowcase.\\n\\n\\n 4\\n At this time, the defendants were spread out over various locations in Northern\\nVirginia.\\n 8\\n\\f A day after Quick’s vehicle was recovered, Mathis, Shantai, and Mersadies were\\n\\narrested at the hotel. After hearing news of the arrest, Halisi had his girlfriend destroy both\\n\\nhis and Casterlow’s phones. Casterlow, who still had possession of the murder weapon\\n\\nparts, hid those items behind a dumpster at their hotel.\\n\\n During this time, Stokes was traveling to Washington, D.C. and Maryland to\\n\\npurchase narcotics with an associate, Jamar Rice (Rice), who later became a government\\n\\nwitness. After receiving information from an unidentified caller that law enforcement had\\n\\nraided the hotel 5 to which Stokes was returning after his trip with Rice, Stokes told Rice\\n\\nthat his “homies” had carjacked and killed a police officer, and had left his body in the\\n\\nwoods.\\n\\n Stokes returned to Virginia to pick up Halisi, Halisi’s girlfriend, and Casterlow.\\n\\nStokes told Casterlow to retrieve the murder weapon components from behind the\\n\\ndumpster and to drive the group to a nearby interstate highway. As Casterlow drove along\\n\\nthe highway, Stokes threw the murder weapon parts over the wall bordering the road.\\n\\nThereafter, Halisi, Stokes, and Casterlow were arrested at the hotel. Law enforcement\\n\\nofficers later recovered the weapon parts with Casterlow’s assistance.\\n\\n The defendants were charged in a 36-count indictment with conspiring to participate\\n\\nin a racketeering enterprise that included the commission of assaults, robberies, burglaries,\\n\\nkidnapping, carjacking, murder, drug trafficking, and obstruction of justice. After the jury\\n\\nwas sworn during the first trial, the district court was informed that Kweli had removed\\n\\n\\n\\n 5\\n During this raid, law enforcement officers arrested Mathis, Mersadies, and Shantai.\\n 9\\n\\ffrom the courtroom a jury list containing identifying information about the jury panel\\n\\nmembers and their families. The district court thereafter granted the defendants’ motion\\n\\nfor a mistrial.\\n\\n A second trial was held in the Roanoke Division of the Western District of Virginia\\n\\nfollowing a request by some of the defendants to change venue. The district court also\\n\\ngranted the government’s request to empanel an anonymous jury. At the close of the\\n\\nsecond trial, a jury found the defendants guilty on all counts. The district court later\\n\\nsentenced the capital defendants each to serve a term of life imprisonment. Halisi and\\n\\nStokes received sentences of 144 and 160 months’ imprisonment, respectively. Several\\n\\nother sentences were imposed on the various defendants. This appeal followed.\\n\\n\\n\\n II.\\n\\n A.\\n\\n The defendants first argue that the district court committed reversible error in\\n\\ndeciding to empanel an anonymous jury. According to the defendants, there was no\\n\\nevidence supporting the district court’s finding that the defendants had the capacity to harm\\n\\nor to intimidate the jurors.\\n\\n We review a district court’s decision to empanel an anonymous jury for abuse of\\n\\ndiscretion. United States v. Dinkins, 691 F.3d 358, 371 (4th Cir. 2012). In a capital case,\\n\\na district court may empanel an anonymous jury only after determining “by a\\n\\npreponderance of the evidence that providing the [juror] list . . . may jeopardize the life or\\n\\nsafety of any person.” Id. at 372 (citing 18 U.S.C. § 3432). We choose to apply this strict\\n\\n 10\\n\\fstandard to both the capital defendants and the non-capital defendants, because the test is\\n\\nsatisfied for both groups.\\n\\n A district court must base its decision to empanel an anonymous jury on evidence\\n\\nin the record, rather than solely on the allegations in the indictment. Id. at 373. Use of an\\n\\nanonymous jury is appropriate “only in rare circumstances when two conditions are met:\\n\\n(1) there is strong reason to conclude that the jury needs protection from interference or\\n\\nharm, or that the integrity of the jury’s function will be compromised absent anonymity;\\n\\nand (2) reasonable safeguards have been adopted to minimize the risk that the rights of the\\n\\naccused will be infringed.” Id. at 372 (citations omitted).\\n\\n To determine whether there are “strong reason[s]” for empaneling an anonymous\\n\\njury, we consider five factors:\\n\\n (1) the defendant’s involvement in organized crime, (2) the defendant’s\\n participation in a group with the capacity to harm jurors, (3) the defendant’s\\n past attempts to interfere with the judicial process, (4) the potential that, if\\n convicted, the defendant will suffer a lengthy incarceration and substantial\\n monetary penalties, and (5) extensive publicity that could enhance the\\n possibility that jurors’ names would become public and expose them to\\n intimidation or harassment.\\n\\nId. at 373 (citing United States v. Ross, 33 F.3d 1507, 1520 (11th Cir. 1994)). These factors\\n\\nare not exhaustive but are meant to provide guidance in the district court’s fact-specific\\n\\ninquiry. Id.\\n\\n In the present case, during the first trial, the district court raised the question whether\\n\\nuse of an anonymous jury would be appropriate. When the defendants stated their\\n\\nopposition, the court took no further action. However, as noted above, the court later\\n\\nreceived information that Kweli had removed the jury panel list containing the members’\\n\\n 11\\n\\fpersonal information and had kept the list overnight in the jail. After the court informed\\n\\nthe jury members that the jury list had been retained by a defendant overnight, some of the\\n\\ndefendants moved for a mistrial, which the court granted.\\n\\n In view of these events, the government filed a motion at the beginning of the second\\n\\ntrial requesting an anonymous jury. The district court granted the government’s motion.\\n\\n Applying the standards outlined in Dinkins and reviewing the district court’s\\n\\nreasoning, we conclude for several reasons that the district court did not abuse its discretion\\n\\nin having the case heard by an anonymous jury. First, the indictment alleged that the\\n\\ndefendants were members of a violent street gang and were involved in a number of violent\\n\\ncriminal offenses, including witness tampering by murder. The record contained sworn\\n\\nstatements by various cooperating witnesses and DNGS members corroborating these\\n\\nallegations. This evidence strongly suggested that the defendants had associates who were\\n\\nnot incarcerated and could intimidate or harm the jurors. See Ross, 33 F.3d at 1520.\\n\\n Second, FBI special agent Scott Cullins expressed to the court concerns about juror\\n\\nsafety given the gang’s “history of not only retribution, but also preventative actions.”\\n\\nMoreover, Deputy United States Marshal Mark Haley informed the court that at least two\\n\\ndefendants, Kweli and Halisi, had continued their DNGS recruitment efforts from jail while\\n\\nawaiting trial. The circumstances leading to the mistrial thus more than justified the court’s\\n\\nconcern for juror safety. And third, if convicted, several of the defendants faced lengthy\\n\\nincarceration and substantial penalties that may have induced them to intimidate the jury\\n\\nin an attempt to influence the outcome of the trial. See id. at 1520–21.\\n\\n\\n\\n 12\\n\\f We also observe that the district court adopted reasonable safeguards to minimize\\n\\nthe risk that the defendants’ constitutional rights would be infringed by the use of an\\n\\nanonymous jury. Dinkins, 691 F.3d at 378. The court provided the venire members with\\n\\na neutral, non-prejudicial explanation of its decision that minimized the danger of prejudice\\n\\nto the defendants. See United States v. Hager, 721 F.3d 167, 188 (4th Cir. 2013). And the\\n\\ncourt’s decision did not interfere with the defendants’ ability to conduct a thorough voir\\n\\ndire examination. Counsel were given full access to all juror information, and the\\n\\ndefendants were permitted to review redacted juror questionnaires. Accordingly, upon our\\n\\nconsideration of all the facts and circumstances before the district court, we hold that the\\n\\ncourt’s decision to empanel an anonymous jury was supported by a preponderance of the\\n\\nevidence and, thus, was not an abuse of discretion.\\n\\n B.\\n\\n Before the jury heard evidence in the case, the court considered pretrial motions\\n\\nseeking the admission of a number of inculpatory co-conspirator statements. The court\\n\\nultimately overruled the defendants’ objections and received the statements into evidence\\n\\nduring the trial. The defendants argue that the district court erred in admitting three of\\n\\nthese statements, because they were not made in furtherance of the charged RICO\\n\\nconspiracy, and their admission violated the defendants’ rights under the Confrontation\\n\\nClause as detailed in Crawford v. Washington, 541 U.S. 36 (2004). We disagree with the\\n\\ndefendants’ arguments.\\n\\n 1.\\n\\n\\n\\n 13\\n\\f We review the district court’s decision to admit co-conspirator statements for abuse\\n\\nof discretion. United States v. Graham, 711 F.3d 445, 453 (4th Cir. 2013). To introduce\\n\\na co-conspirator’s statements under Federal Rule of Evidence 801(d)(2)(E), the\\n\\ngovernment was required to show by a preponderance of the evidence that (1) a conspiracy\\n\\nexisted, (2) the conspiracy included both the declarants and the defendants against whom\\n\\nthe statements were offered, and (3) the statements were made during the course of and in\\n\\nfurtherance of the conspiracy. Bourjaily v. United States, 483 U.S. 171, 175 (1987).\\n\\n The government proffered that it would establish that the statements were made\\n\\nduring and in relation to the broader DNGS racketeering conspiracy, which included\\n\\nQuick’s murder and the ensuing actions to avoid detection and arrest. 6 Shantai made the\\n\\nfirst challenged statement the morning after Quick’s murder, giving Anthony White\\n\\n(White), another DNGS member, a detailed account of the kidnapping and murder. This\\n\\nstatement included the fact that the capital defendants killed Quick, because “they found\\n\\nout he was a cop.” Both White and Shantai were members of the conspiracy. Although\\n\\nWhite had not participated in Quick’s murder, the statement provided information to White\\n\\non the status of the DNGS criminal enterprise, of which he was a member. See United\\n\\nStates v. Mandell, 752 F.3d 544, 552 (2d Cir. 2014) (noting that statements made between\\n\\nco-conspirators to “inform each other as to the progress or status of the conspiracy” are\\n\\n\\n 6\\n We find no merit in the defendants’ argument that Quick’s kidnapping and murder\\nand the later cover-up of those crimes were not part of the DNGS racketeering conspiracy.\\nAs noted, the government’s proffer alleged that Quick’s murder was one of many\\nracketeering acts done on behalf of the broader DNGS conspiracy. And our review of the\\nrecord evidence, discussed more fully below in Section II.E., leads us to conclude that\\nQuick’s kidnapping and murder were part of the larger-scale DNGS conspiracy.\\n 14\\n\\fstatements made in furtherance of that conspiracy). Accordingly, Shantai’s statement to\\n\\nWhite was admissible as a statement of a co-conspirator made “in furtherance of the\\n\\nconspiracy.”\\n\\n Kweli made the second challenged statement while he and Halisi were arranging for\\n\\nsomeone to destroy Quick’s vehicle. Kweli called Shiquan Jackson (Jackson), a DNGS\\n\\nmember, to inform him of the situation. Kweli told Jackson that “[Kweli] just did\\n\\nsomething bad,” and that he and the other capital defendants “just peter-rolled [i.e. killed]\\n\\na cop” and had to “lay low.” During this conversation, Kweli asked Jackson and Jackson’s\\n\\nbrother, Devante Jackson, also a DNGS member, to contact Halisi, find the vehicle, and\\n\\nquickly dispose of it. Again, all parties to this statement were members of the conspiracy,\\n\\nand Kweli’s comments to Jackson were made in furtherance of the conspiracy. Not only\\n\\nwas Kweli providing Jackson information regarding the status of the conspiracy, but he\\n\\nalso sought to “induce a coconspirator’s assistance” to destroy evidence for the purpose of\\n\\nevading detection and arrest. Id. Thus, because Kweli’s statement to his fellow DNGS\\n\\nmember was intended to “prolong the unlawful activities” of the DNGS enterprise, United\\n\\nStates v. Altomare, 625 F.2d 5, 8 n.9 (4th Cir. 1980), this statement was admissible under\\n\\nRule 801(d)(2)(E).\\n\\n The third challenged statement involves comments Mathis made to his girlfriend,\\n\\nDierra Lloyd (Lloyd), who was not a DNGS member. After Quick’s murder, Mathis\\n\\nconfessed to Lloyd that he and the other capital defendants “killed a cop.” Mathis also\\n\\n\\n\\n\\n 15\\n\\fasked Lloyd if she “knew a place where [he] could get rid of [Quick’s vehicle].” 7 Although\\n\\nthis statement was not made to a member of the DNGS enterprise, we have recognized that\\n\\n“even casual relationships to the conspiracy” will satisfy the nexus requirement of Rule\\n\\n801(d)(2)(E). United States v. Smith, 441 F.3d 254, 262 (4th Cir. 2006) (citation omitted).\\n\\nThis statement also was made “in furtherance of the conspiracy” because Mathis sought\\n\\nLloyd’s assistance in disposing of Quick’s vehicle. See Mandell, 752 F.3d at 552 (citation\\n\\nomitted). Therefore, Mathis’ statement likewise was admissible under Rule 801(d)(2)(E).\\n\\n 2.\\n\\n We turn to address the defendants’ contention that the admission of the co-\\n\\nconspirator statements violated their rights under the Confrontation Clause. We review de\\n\\nnovo this question of law. United States v. Lighty, 616 F.3d 321, 376 (4th Cir. 2010).\\n\\n The Confrontation Clause protects a defendant’s right to cross-examine a declarant\\n\\nmaking a “testimonial” statement. Davis v. Washington, 547 U.S. 813, 821 (2006).\\n\\nAlthough the Supreme Court has not articulated a precise definition of the term\\n\\n“testimonial,” the Court has provided concrete examples of testimonial evidence. At a\\n\\nminimum, such evidence includes testimony given at a preliminary hearing, before a grand\\n\\njury, and at a formal trial, as well as statements made during a police interrogation. See\\n\\nCrawford, 541 U.S. at 68. More recently, the Court has explained that a statement is\\n\\ntestimonial in nature if the statement was made or procured with the “primary purpose” of\\n\\n\\n\\n 7\\n It is not clear from the trial record whether Lloyd helped Mathis and the other\\nmembers destroy the vehicle following Mathis’ request.\\n\\n 16\\n\\fcreating an “out-of-court substitute for trial testimony.” Ohio v. Clark, 135 S. Ct. 2173,\\n\\n2180 (2015) (quoting Michigan v. Bryant, 562 U.S. 344, 358 (2011)).\\n\\n We conclude that the challenged co-conspirator statements were not testimonial in\\n\\nnature. The defendants made the challenged statements to co-conspirators and to Lloyd\\n\\nabout criminal activities related to the DNGS criminal enterprise. Moreover, all the\\n\\nstatements were made in furtherance of that criminal conspiracy and were not intended to\\n\\nbe used as a substitute for trial testimony. Accordingly, the admission of the challenged\\n\\nstatements did not violate the defendants’ rights under the Confrontation Clause. 8 See\\n\\nUnited States v. Jordan, 509 F.3d 191, 194, 201 (4th Cir. 2007) (holding that statements\\n\\nmade by declarant and alleged co-conspirator to the declarant’s friend describing events\\n\\nrelated to the murder of a drug courier were non-testimonial and, thus, did not violate the\\n\\nConfrontation Clause).\\n\\n C.\\n\\n The defendants next contend that the indictment was defective because it charged\\n\\nthat Quick was prevented from communicating “to a law enforcement officer,” rather than\\n\\n“to a law enforcement officer . . . of the United States,” as provided in the language of 18\\n\\nU.S.C. § 1512(a)(1)(C). The district court did not reach the merits of this argument,\\n\\ndetermining that the defendants’ motion to dismiss the witness tampering count and related\\n\\n\\n 8\\n Given that admission of the co-conspirator statements did not violate the\\nConfrontation Clause, we reject the defendants’ additional claim under Bruton v. United\\nStates, 391 U.S. 123 (1968). United States v. Dargan, 738 F.3d 643, 651 (4th Cir. 2013)\\n(“Statements that do not implicate the Confrontation Clause, a fortiori, do not implicate\\nBruton.”).\\n\\n 17\\n\\fSection 924(c) count was untimely and that they failed to establish “good cause” to excuse\\n\\ntheir untimely filing.\\n\\n The defendants concede that their motion to dismiss was untimely but argue that\\n\\nthey had good cause for the untimely filing, because some of the defendants’ attorneys\\n\\nwere unaware of the alleged defect in the indictment. The defendants alternatively\\n\\nmaintain that despite their untimely motion, this Court may review the merits of their\\n\\nargument for plain error, and conclude under that standard that the indictment was\\n\\ndefective. We conclude that the defendants failed to show good cause and that, in any\\n\\nevent, there was no defect in the indictment.\\n\\n We review the district court’s finding of lack of good cause for abuse of discretion.\\n\\nUnited States v. Soto, 794 F.3d 635, 655 (6th Cir. 2015); cf. United States v. Cowley, 814\\n\\nF.3d 691, 698 (4th Cir. 2016) (reviewing for abuse of discretion the district court’s finding\\n\\nthat defendant did not establish good cause to rebut the presumption of untimeliness under\\n\\nthe Innocence Protection Act). Under Federal Rule of Criminal Procedure 12, a challenge\\n\\nto a defect in an indictment “must be raised by pretrial motion if the basis for the motion\\n\\nis then reasonably available and the motion can be determined without a trial on the\\n\\nmerits.” 9 Fed. R. Crim. P. 12(b)(3)(B). If a party fails to meet this deadline, the motion is\\n\\n\\n 9\\n This version of Rule 12 took effect on December 1, 2014, a few weeks after the\\nindictment was returned by the grand jury. The defendants do not argue that the prior\\nversion of Rule 12 applies. In any event, we determine that the current version of Rule 12\\napplies, because this case was pending at the time the Rule took effect and the Rule’s\\napplication is “just and practicable.” See S. Ct. Order Amending Fed. R. Crim. P. at ¶ 2\\n(Apr. 25, 2014) (providing that the new rules “shall govern in all proceedings in criminal\\ncases thereafter commenced and, insofar as just and practicable, all proceedings then\\npending”).\\n 18\\n\\funtimely. Id. 12(c)(3). A district court “may consider” an untimely motion only if the\\n\\nmoving party “shows good cause” for its delayed action. Id.\\n\\n We conclude that the district court did not abuse its discretion in finding that the\\n\\nmotion was untimely, and that the defendants failed to show good cause for their delayed\\n\\nchallenge. Mathis’ counsel informed the court that he had “held onto” the perceived defect\\n\\nin the indictment “for quite [awhile]” because of his “hope that [he] would get into serious\\n\\nplea negotiations with the government, and that if [he] did get in serious plea negotiations\\n\\nwith the government, that [he] could get some mileage out of it.” Counsel further admitted\\n\\nthat he “could have filed [the motion to dismiss] right before trial, [he] could have filed it\\n\\nbefore the jury was picked, [he] could have filed it any of those times, and [he] didn’t.”\\n\\n A party’s affirmative decision to delay filing a motion in an attempt to gain a\\n\\nstrategic advantage at trial does not amount to good cause for purposes of Rule 12. See\\n\\nUnited States v. Ramirez, 324 F.3d 1225, 1228 (11th Cir. 2003) (holding that defense tactic\\n\\nof “sandbagging” is not good cause for failure to file motion to dismiss (citation omitted));\\n\\nsee also United States v. Oldfield, 859 F.2d 392, 397 (6th Cir. 1988) (noting that one\\n\\npurpose of Rule 12 is to “restrict[] the defense tactic of ‘sandbagging’” (citation omitted)).\\n\\nAccordingly, we affirm the district court’s denial of the defendants’ untimely motion to\\n\\ndismiss the witness tampering charge and the related Section 924(c) counts of the\\n\\nindictment. 10\\n\\n\\n 10\\n We are not persuaded by the defendants’ argument that there was good cause for\\nthe untimely motion because some attorneys for the other defendants were unaware of the\\nalleged defect. See United States v. Ruhe, 191 F.3d 376, 386–87 (4th Cir. 1999) (holding\\n(Continued)\\n 19\\n\\f More fundamentally, there was no defect, plain or otherwise, in the indictment.\\n\\nGenerally, an indictment is sufficient if it “(1) indicate[s] the elements of the offense and\\n\\nfairly inform[s] the defendant of the exact charges and (2) enable[s] the defendant to plead\\n\\ndouble jeopardy in subsequent prosecutions for the same offense.” United States v.\\n\\nWilliams, 152 F.3d 294, 299 (4th Cir. 1998) (citation omitted). The fact that the language\\n\\nat issue in the indictment did not track the precise language of the statute did not constitute\\n\\nerror under these circumstances. Id. The indictment detailed the factual basis for the\\n\\nwitness tampering charge and cited to the correct statute, fairly apprising the defendants of\\n\\nthe crime charged and its required elements. Id. Therefore, we reject the defendants’ claim\\n\\nof error.\\n\\n D.\\n\\n The defendants next argue that the district court violated their Fifth Amendment\\n\\nrights by amending the indictment through the court’s instructions to the jury. According\\n\\nto the defendants, although the indictment alleged that the Bloods gang was the criminal\\n\\nenterprise underlying the RICO charge, the court instead instructed the jury that DNGS\\n\\nwas the alleged enterprise.\\n\\n We do not address the merits of this argument because the defendants invited the\\n\\nclaimed error. United States v. Herrera, 23 F.3d 74, 75 (4th Cir. 1994) (“[A] court can not\\n\\nbe asked by counsel to take a step in a case and later be convicted of error, because it has\\n\\ncomplied with such request.” (quoting Shields v. United States, 273 U.S. 583, 586 (1927))).\\n\\n\\nthat there was no good cause to raise an untimely suppression motion when the defendant\\ncould have with due diligence discovered the information necessary to raise the issue).\\n 20\\n\\fAt the charging conference near the end of the trial, the defendants argued that the jury\\n\\nshould be instructed that the alleged enterprise was only the Bloods, and did not include\\n\\nDNGS. The government noted that the indictment referred to the Bloods and DNGS\\n\\ninterchangeably and ultimately offered, with the district court’s approval, that the exact\\n\\nlanguage contained in the indictment be used in the jury instructions. Nonetheless, the\\n\\ndefendants declined this proposed course of action and requested that the instructions\\n\\nnaming only DNGS be used. Thus, even if the court’s instruction was improper, the\\n\\ndefendants could have cured any such error but did not. 11 See United States v. Lespier, 725\\n\\nF.3d 437, 445–46, 449–51 (4th Cir. 2013) (holding that the invited error doctrine applies\\n\\nwhen the defendant opposed provision of a particular instruction and then argued on appeal\\n\\nthat it was error for instruction not to have been given).\\n\\n E.\\n\\n The defendants challenge the sufficiency of the evidence to convict them of the\\n\\nRICO conspiracy under 18 U.S.C. § 1962(d). 12 The capital defendants also argue that their\\n\\nfederal witness tampering convictions under 18 U.S.C. § 1512(a)(1)(C) are not supported\\n\\n\\n 11\\n The defendants do not argue that an exception to the invited error doctrine is\\napplicable in this case. See United States v. Lespier, 725 F.3d 437, 450–51 (4th Cir. 2013).\\n 12\\n The defendants also challenge the sufficiency of the evidence underlying their\\nnumerous VICAR convictions under 18 U.S.C. § 1959(a)(3), and violations of 18 U.S.C.\\n§ 924(c), based on the underlying VICAR offenses. VICAR imposes criminal liability on\\nan individual who commits a crime of violence “for the purpose of gaining entrance to or\\nmaintaining or increasing position in an enterprise engaged in racketeering activity.” 18\\nU.S.C. § 1959(a). As Section 1959(a) incorporates the same definition of “enterprise” as\\nRICO, 18 U.S.C. § 1959(b), our analysis of the defendants’ challenge to the RICO\\nconspiracy convictions applies equally to the VICAR and related Section 924(c)\\nconvictions.\\n 21\\n\\fby the evidence. Additionally, Halisi and Stokes challenge the sufficiency of the evidence\\n\\nto support their convictions for obstruction of justice under 18 U.S.C. § 1512(c)(1).\\n\\n We will sustain a jury’s verdict when there is substantial evidence, construed in the\\n\\nlight most favorable to the government, supporting the verdict. United States v. Hackley,\\n\\n662 F.3d 671, 678 (4th Cir. 2011). We address the defendants’ arguments in turn, setting\\n\\nforth additional facts as necessary to decide each argument.\\n\\n 1.\\n\\n The defendants each were convicted of conspiracy to participate in a racketeering\\n\\nenterprise in violation of 18 U.S.C. § 1962(d). To obtain a conviction under this statute,\\n\\nthe government was required to prove “that an enterprise affecting interstate commerce\\n\\nexisted; that each defendant knowingly and intentionally agreed with another person to\\n\\nconduct or participate in the affairs of the enterprise; and . . . that each defendant knowingly\\n\\nand willfully agreed that he or some other member of the conspiracy would commit at least\\n\\ntwo racketeering acts.” United States v. Mouzone, 687 F.3d 207, 218 (4th Cir. 2012)\\n\\n(citations and internal quotation marks omitted).\\n\\n a.\\n\\n The defendants argue that: (1) DNGS was not an “enterprise,” as the term is used in\\n\\nthe RICO statute; and (2) their crimes were “unplanned, disorganized, and spontaneous”\\n\\nand, thus, did not constitute a pattern of racketeering activity. We find no merit in either\\n\\nargument.\\n\\n The RICO statute defines the term “enterprise” as “any . . . group of individuals\\n\\nassociated in fact although not a legal entity.” 18 U.S.C. § 1961(4). A RICO enterprise\\n\\n 22\\n\\f“is proved by evidence of an ongoing organization, formal or informal, and by evidence\\n\\nthat the various associates function[ed] as a continuing unit.” United States v. Turkette,\\n\\n452 U.S. 576, 583 (1981). The Supreme Court has explained that an “association-in-fact\\n\\nenterprise” must have “at least three structural features: a purpose, relationships among\\n\\nthose associated with the enterprise, and longevity sufficient to permit these associates to\\n\\npursue the enterprise’s purpose.” Boyle v. United States, 556 U.S. 938, 946 (2009).\\n\\n Here, the government presented sufficient evidence from which a reasonable jury\\n\\ncould conclude that DNGS was an “enterprise,” within the meaning of the RICO statute.\\n\\nDNGS members received tattoos and wore red clothing signifying their membership in the\\n\\ngang, congregated regularly at membership meetings, and had a set of governing rules that\\n\\nmembers were expected to follow. Members shared a common function and purpose,\\n\\nnamely, to enrich members of the gang by “putting in work” through the commission of\\n\\nviolent crimes and selling drugs. DNGS members also agreed to provide, and did provide,\\n\\nprotection for one another. Although an “enterprise” “need not have a hierarchical\\n\\nstructure or chain of command,” id. at 948, the presence of such organizational features\\n\\nprovides additional evidence of a functioning “enterprise.” And here, the government’s\\n\\nevidence established that DNGS had a clearly delineated leadership structure.\\n\\n Although the RICO statute does not define the phrase “pattern of racketeering\\n\\nactivity,” see 18 U.S.C. § 1962, the statute specifies that proof of a “pattern of racketeering\\n\\nactivity” requires evidence of “at least two acts of racketeering activity” committed within\\n\\na ten-year period, 18 U.S.C. § 1961(5). The Supreme Court further has explained that to\\n\\nestablish a pattern of racketeering activity, the racketeering predicate acts must be related\\n\\n 23\\n\\fto each other (the “relatedness prong”), and must amount to, or pose a threat of, continued\\n\\ncriminal activity (the “continuity prong”). H.J. Inc. v. N.W. Bell Tel. Co., 492 U.S. 229,\\n\\n239 (1989) (“It is this factor of continuity plus relationship which combines to produce a\\n\\npattern.” (citation omitted)).\\n\\n At issue here is the relatedness prong of the pattern analysis. 13 Racketeering acts\\n\\nare related if they “have the same or similar purposes, results, participants, victims, or\\n\\nmethods of commission, or otherwise are interrelated by distinguishing characteristics and\\n\\nare not isolated events.” Id. at 240 (citation omitted). In making this determination, we\\n\\nemploy the “commonsense, everyday understanding” of the statutory language. Id. at 241.\\n\\n We conclude that the government sufficiently established a “pattern of racketeering\\n\\nactivity.” The government introduced evidence of twelve racketeering acts leading up to\\n\\nQuick’s kidnapping and murder. Various combinations of DNGS members committed\\n\\nthese crimes together. Those crimes shared the common purpose of enriching DNGS\\n\\n\\n\\n 13\\n While the defendants have not, apart from a single conclusory statement, raised a\\ncontinuity argument, we determine that the continuity prong is satisfied here. H.J. Inc.,\\n492 U.S. at 241–42 (holding that the continuity prong can be met by showing that related\\npredicate offenses continued over a substantial period of time or posed a threat of\\ncontinuing activity). Although the predicate acts established at trial were committed over\\nthe span of five months, the racketeering offenses were part of an ongoing criminal\\nenterprise and were committed to enrich DNGS members and to facilitate future criminal\\nacts. See id. at 242–43 (noting that “the threat of continuity is sufficiently established\\nwhere the predicates can be attributed to a defendant operating as part of a long-term\\nassociation that exists for criminal purposes”). DNGS also worked to protect its members\\nfrom apprehension by law enforcement authorities. See United States v. Aulicino, 44 F.3d\\n1102, 1111 (2d Cir. 1995) (holding that “in cases where the acts of the defendant or the\\nenterprise were inherently unlawful, such as murder or obstruction of justice, and were in\\npursuit of inherently unlawful goals . . . courts generally have concluded that the requisite\\nthreat of continuity was adequately established”).\\n 24\\n\\fmembers, bolstering the gang’s reputation for violence, or evading law enforcement\\nauthorities. In committing these crimes, the defendants employed firearms, threats of\\nphysical force, and actual physical force. The jury could conclude, based on this\\nevidence, that the defendants had engaged in a “pattern of racketeering activity.”\\n b.\\n\\n Halisi and Stokes separately argue that the government failed to prove that either of\\n\\nthem agreed to the commission of at least two of the charged racketeering acts. The\\n\\ngovernment offered evidence of three categories of racketeering acts: drug trafficking,\\n\\nobstruction of justice, and robbery, in violation of state and federal law. 14 Although Halisi\\n\\nand Stokes do not dispute that they conspired to distribute narcotics, they argue that these\\n\\nactivities were not related to DNGS and, thus, were not part of the RICO conspiracy. Halisi\\n\\nand Stokes also claim that their acts of obstruction did not constitute racketeering acts,\\n\\nbecause those acts occurred after the completion of the RICO conspiracy. We disagree\\n\\nwith these arguments.\\n\\n “[A] defendant can conspire to violate RICO and violate [Section] 1962(d) without\\n\\nhimself committing or agreeing to commit the two or more acts of racketeering activity.”\\n\\nMouzone, 687 F.3d at 218 (internal brackets and quotation marks omitted) (citing Salinas\\n\\nv. United States, 522 U.S. 52, 65 (1997)). He need only “agree to pursue the same criminal\\n\\nobjective” as that of the enterprise. Salinas, 522 U.S. at 63–64. This agreement is apparent\\n\\nfrom Halisi and Stokes’ role within DNGS. Both men were the enterprise’s founders and\\n\\nleaders. Both defendants had a central role in directing the enterprise, which required its\\n\\n\\n 14\\n Because we conclude that Halisi and Stokes participated in the racketeering acts\\nof drug trafficking and obstruction of justice, we need not decide whether there was\\nsufficient evidence to prove that they also participated in the other racketeering activities\\nalleged in the indictment, including robbery.\\n 25\\n\\fmembers to commit crimes for the gang’s welfare and support. These facts strongly\\n\\nsupport the jury’s conclusion that Halisi and Stokes were actively involved in the RICO\\n\\nconspiracy conducted by DNGS, including the robberies committed by the capital\\n\\ndefendants and others.\\n\\n Abundant evidence showed that DNGS members distributed controlled substances\\n\\nand discussed arrangements for expanding their drug distribution networks at DNGS\\n\\nmeetings. Other evidence showed that drug trafficking was done for the benefit of DNGS,\\n\\nand copies of DNGS-related documents introduced at trial reflected a detailed code used\\n\\nby DNGS members to disguise their intended language when discussing narcotics. DNGS\\n\\nmembers also sought to invest money obtained from robberies and theft into the gang’s\\n\\ndrug distribution network. Thus, the jury could conclude from the evidence that the\\n\\ndistribution of controlled substances was a centerpiece of the DNGS criminal enterprise.\\n\\n The government also produced substantial evidence that the acts of obstruction\\n\\ncommitted by Halisi and Stokes were done during and in furtherance of the conspiracy.\\n\\nHalisi and Stokes ordered the destruction of, or directly destroyed, evidence related to\\n\\nQuick’s murder, including Quick’s ATM card, the murder weapon, and the phones\\n\\nbelonging to DNGS members. Halisi and Stokes took these actions not only to “cover up”\\n\\nthe crimes that had been committed, but also to prolong the unlawful activities of the DNGS\\n\\nenterprise and to protect the DNGS members from being arrested. Accordingly, the jury\\n\\ncould conclude from this evidence that the obstructive acts committed by Halisi and Stokes\\n\\nconstituted acts of racketeering. Altomare, 625 F.2d at 8 n.9 (explaining that defendant’s\\n\\nattempt to obstruct was “not merely an attempt to cover up a previously completed crime,\\n\\n 26\\n\\fbut was an effort to prolong the unlawful activities of the enterprise in which he and his\\n\\nco-conspirators were engaged”).\\n\\n 2.\\n\\n The capital defendants argue that the evidence was insufficient to prove that they\\n\\nengaged in witness tampering by murder to prevent Quick from reporting a carjacking\\n\\noffense. In particular, they assert that their witness tampering convictions cannot stand,\\n\\nbecause the government failed to prove the underlying crime of carjacking. We find no\\n\\nmerit in this argument.\\n\\n The federal witness tampering statute prohibits “kill[ing] another person, with intent\\n\\nto . . . prevent the communication by any person to a law enforcement officer . . . of the\\n\\nUnited States” of “information relating to the . . . possible commission of a Federal\\n\\noffense.” 18 U.S.C. § 1512(a)(1)(C) (emphasis added). Section 1512 does not require that\\n\\nthe government prove the completion of an underlying federal offense to establish witness\\n\\ntampering. 15 Instead, inclusion of the word “possible” in the statutory language reflects\\n\\nthat a conviction under Section 1512 requires only that a witness was prevented from\\n\\ncommunicating to the authorities information about a possible or actual federal offense.\\n\\n 3.\\n\\n\\n\\n 15\\n For the same reason, we reject the capital defendants’ more specific argument that\\nthe government failed to adduce evidence establishing the federal nexus required by the\\ncarjacking statute. See 18 U.S.C. § 2119 (prohibiting the taking of “a motor vehicle that\\nhas been transported, shipped, or received in interstate or foreign commerce” (emphasis\\nadded)). For the purposes of the witness tampering conviction, the government was not\\nrequired to proffer evidence proving the elements of the underlying crime of carjacking,\\nincluding the federal nexus requirement.\\n 27\\n\\f Halisi and Stokes contend that the evidence was insufficient to support their\\n\\nconvictions for obstruction of justice under 18 U.S.C. § 1512(c)(1), which, in relevant part,\\n\\nprohibits a person from “corruptly . . . alter[ing], destroy[ing], mutilat[ing], or conceal[ing]\\n\\na record, document, or other object, or attempt[ing] to do so, with the intent to impair the\\n\\nobject’s integrity or availability for use in an official proceeding.” We consider their\\n\\nseparate arguments in turn.\\n\\n Halisi argues that, because he only instructed other individuals to destroy evidence\\n\\nand did not directly destroy any evidence himself, he did not commit the crime of\\n\\nobstruction of justice. 16 We disagree.\\n\\n Under the doctrines of vicarious liability and co-conspirator liability, a defendant is\\n\\nliable for the substantive offenses committed by a co-conspirator when the commission of\\n\\nthe acts is reasonably foreseeable and is done in furtherance of the conspiracy. United\\n\\nStates v. Ashley, 606 F.3d 135, 143 (4th Cir. 2010). The jury properly was instructed on\\n\\nboth these theories of liability. 17 The evidence at trial established that Halisi ordered\\n\\nCasterlow to destroy Quick’s ATM card, instructed his girlfriend to destroy his and\\n\\nCasterlow’s phones, and gave Stokes the disassembled murder weapon in order for Stokes\\n\\nto discard the component parts. Thus, the jury reasonably could determine under a theory\\n\\nof either vicarious or co-conspirator liability that Halisi was responsible for destroying\\n\\n\\n\\n 16\\n The indictment alleged that Halisi was involved “in directing the efforts of the\\nenterprise in the destruction of documents and evidence associated with” Quick’s murder.\\n 17\\n These theories of liability need not be charged in the indictment. See Ashley, 606\\nF.3d at 143.\\n 28\\n\\fevidence by commanding others to do so on his behalf. Accordingly, we affirm his\\n\\nconviction for obstruction of justice.\\n\\n Stokes advances a separate challenge to his conviction for obstruction of justice. He\\n\\nargues that: (1) his conviction is invalid because a federal grand jury had not been convened\\n\\nto consider the crimes charged at the time that he purportedly obstructed justice; and (2)\\n\\nthe government failed to prove that, at the time of his actions, he contemplated an official\\n\\nproceeding that was federal in nature. We reject both these arguments, which are\\n\\nforeclosed by the plain language of Section 1512.\\n\\n Section 1512(f)(1) provides, in relevant part, that “[f]or the purposes of this section\\n\\n. . . an official proceeding need not be pending or about to be instituted at the time of the\\n\\noffense.” And Section 1512(g)(1) provides that “[i]n a prosecution for an offense under\\n\\nthis section, no state of mind need be proved with respect to the circumstance . . . that the\\n\\nofficial proceeding . . . is before a judge or court of the United States, a United States\\n\\nmagistrate judge, . . . a Federal grand jury, or a Federal Government agency.”\\n\\n Despite this plain language, however, Stokes maintains that the Supreme Court’s\\n\\ndecision in Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), clarified that the\\n\\ngovernment was required to prove that Stokes contemplated a particular and foreseeable\\n\\nfederal grand jury or federal court proceeding. The Supreme Court held in Arthur Andersen\\n\\nthat certain other provisions of the witness tampering statute, Section 1512(b)(2)(A) and\\n\\n(B), require that the government prove a “nexus” between the defendant’s conduct and a\\n\\nforeseeable official proceeding. 544 U.S. at 698, 707–08. We will assume, without\\n\\ndeciding, that Section 1512(c)(1) imposed the same burden on the government in the\\n\\n 29\\n\\fpresent case, requiring the government to establish a “nexus” between Stokes’ obstructive\\n\\naction and a foreseeable official proceeding. See United States v. Young, 916 F.3d 368,\\n\\n386 (4th Cir. 2019) (holding that the “nexus” requirement applies to Section 1512(c)(2)).\\n\\nThe evidence before us easily satisfied such a requirement.\\n\\n Rice, who was with Stokes days after Quick’s murder, testified that Stokes received\\n\\na call that “the fed—the police had kicked in the door to [the DNGS members’ hotel].”\\n\\nStokes responded to Rice that the murder weapon was still in Casterlow’s possession, and\\n\\nthat Stokes was “concerned” the gun could be traced “back to the murder” and link him to\\n\\nthe crime. The evidence further established that Stokes later took action to dispose of the\\n\\nmurder weapon. The jury could conclude from this evidence that Stokes thought that his\\n\\nacts likely would affect a foreseeable official proceeding. See Arthur Anderson, 544 U.S.\\n\\nat 707.\\n\\n Nor was the government required to establish that Stokes contemplated an official\\n\\nproceeding that was federal in nature in order to secure a conviction under Section 1512(c).\\n\\nAs quoted above, the language of Section 1512(g)(1) plainly refutes such a contention. See\\n\\nUnited States v. Phillips, 583 F.3d 1261, 1264–65 (10th Cir. 2009) (holding that in a\\n\\nprosecution under Section 1512(c), “the government need not prove [that] the defendant\\n\\nknew that the official proceeding at issue was a federal proceeding such as a grand jury\\n\\ninvestigation”). Accordingly, we conclude that the evidence was sufficient to support\\n\\nStokes’ conviction for obstruction of justice under Section 1512(c)(1).\\n\\n F.\\n\\n\\n\\n 30\\n\\f The defendants next challenge a number of their convictions under 18 U.S.C. §\\n\\n924(c) for use of a firearm during a crime of violence. They argue that the predicate\\n\\noffenses underlying their Section 924(c) convictions do not qualify as crimes of violence\\n\\nunder the statute’s “force clause,” 18 U.S.C. § 924(c)(3)(A). With respect to the statute’s\\n\\n“residual clause,” id. § 924(c)(3)(B), the defendants argue that the clause is\\n\\nunconstitutionally vague in light of the Supreme Court’s decision in Johnson v. United\\n\\nStates, 135 S. Ct. 2551 (2015) (Johnson II).\\n\\n We review de novo the question whether an offense qualifies as a crime of violence.\\n\\nSee United States v. McNeal, 818 F.3d 141, 151 (4th Cir. 2016). An offense under Section\\n\\n924(c) arises when a defendant uses or carries a firearm during or in relation to a “crime of\\n\\nviolence.” 18 U.S.C. § 924(c)(1)(A). Subsection (c)(3) defines the term “crime of\\n\\nviolence” as a felony offense that:\\n\\n (A) has as an element the use, attempted use, or threatened use of physical\\n force against the person or property of another, or\\n\\n (B) that by its nature, involves a substantial risk that physical force against\\n the person or property of another may be used in the course of committing\\n the offense.\\n\\n18 U.S.C. § 924(c)(3). We refer to Section 924(c)(3)(A) as the “force clause,” and to Section\\n\\n924(c)(3)(B) as the “residual clause” or the “924(c) residual clause.” United States v. Fuertes,\\n\\n805 F.3d 485, 498 (4th Cir. 2015).\\n\\n The Supreme Court recently agreed with the defendants’ argument that the 924(c)\\n\\nresidual clause is unconstitutionally vague. United States v. Davis, 139 S. Ct. 2319, 2336\\n\\n(2019). The Court held that like similarly worded residual clauses struck down in Johnson\\n\\n\\n 31\\n\\fII, 135 S. Ct. at 2557, and Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018), the 924(c)\\n\\nresidual clause improperly required the sentencing judge’s “estimation of the degree of risk\\n\\nposed by a crime’s imagined ‘ordinary case.’” Davis, 139 S. Ct. at 2325-26, 2336. 18 Our\\n\\nanalysis therefore is limited to considering whether the defendants’ prior convictions qualify\\n\\nas crimes of violence under the force clause.\\n\\n To determine whether an offense qualifies as a crime of violence under Section\\n\\n924(c)(3)(A), we apply the categorical approach or the modified categorical approach,\\n\\ndepending on the nature of the offense. Id. The categorical approach focuses “on the\\n\\nelements of the prior offense rather than the conduct underlying the conviction.” United\\n\\nStates v. Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir. 2013) (citation omitted). Thus,\\n\\nwe do not inquire “whether the defendant’s conduct could support a conviction for a crime\\n\\nof violence” but instead inquire “whether the defendant was in fact convicted of a crime\\n\\nthat qualifies as a crime of violence.” Id.\\n\\n In a “narrow range of cases,” involving statutes that are comprised of “multiple,\\n\\nalternative versions of the crime,” we apply the modified categorical approach. Descamps\\n\\nv. United States, 570 U.S. 254, 261–62 (2013) (citing Taylor v. United States, 495 U.S.\\n\\n575, 602 (1990)). When confronted with such a “divisible” statute, we review certain\\n\\nunderlying documents, including the indictment, “to determine what crime, with what\\n\\n\\n 18\\n The Supreme Court rejected the government’s argument that unlike the residual\\nclauses at issue in Johnson II and Dimaya, the 924(c) residual clause permits a case-specific\\napproach allowing consideration of the defendant’s actual conduct in the predicate crime,\\nrather than the crime in the “ordinary” sense. Davis, 139 S. Ct. at 2327−33. The Court\\nreasoned that the statutory language and historical context of the 924(c) residual clause did\\nnot permit a “case-specific reading.” Id.\\n 32\\n\\felements,” formed the basis of a defendant’s conviction. Mathis v. United States, 136 S.\\n\\nCt. 2243, 2249 (2016) (citations omitted).\\n\\n With this framework in mind, we turn to consider each predicate offense underlying\\n\\nthe defendants’ Section 924(c) convictions. These predicate offenses are: (1) VICAR in\\n\\nviolation of 18 U.S.C. § 1959 by committing murder in violation of Virginia law, Virginia\\n\\nCode § 18.2-32; (2) witness tampering by means of murder in violation of 18 U.S.C. §\\n\\n1512(a); (3) Hobbs Act robbery in violation of 18 U.S.C. § 1951(a); and (4) VICAR by\\n\\ncommitting kidnapping in violation of Virginia law, Virginia Code § 18.2-47.\\n\\n 1.\\n\\n We begin by addressing whether the capital defendants’ Section 924(c) convictions,\\n\\nwhich involve (1) commission of VICAR by committing first-degree murder under\\n\\nVirginia law 19 and (2) federal witness tampering by means of murder under federal law,\\n\\nqualify as crimes of violence under the force clause. The capital defendants contend that\\n\\nVirginia’s definition of first-degree murder, 20 prohibited under Virginia Code § 18.2-32,\\n\\ndoes not require the use or threatened use of force against another, because a defendant can\\n\\nviolate the statute by using non-violent, indirect means, such as “poison[ing]” a victim.\\n\\n\\n\\n 19\\n Neither party contests the applicability of the categorical approach to the VICAR-\\nmurder, agreeing that Virginia’s murder statute is indivisible.\\n 20\\n Virginia Code § 18.2-32 specifies “[a]ll murder other than capital murder and\\nmurder in the first degree is murder of the second degree.” Although the indictment did\\nnot specify whether the VICAR conviction was predicated on a first-degree or second-\\ndegree murder, the district court instructed the jury on first-degree murder. The parties do\\nnot dispute that the capital defendants’ VICAR convictions stem from commission of first-\\ndegree murder under Virginia law.\\n 33\\n\\fAdvancing the same rationale, the capital defendants also assert that federal witness\\n\\ntampering by murder, under 18 U.S.C. § 1512(a)(1)(C), is not categorically a crime of\\n\\nviolence.\\n\\n This line of reasoning, however, is foreclosed by the Supreme Court’s decision in\\n\\nUnited States v. Castleman, in which the Court held that “physical force is simply force\\n\\nexerted by and through” human action and that, therefore, a person need not “directly”\\n\\ntouch his victim to exert “physical force.” 572 U.S. 157, 170−71 (2014) (citations and\\n\\ninternal quotation marks omitted). Accordingly, so long as an offender’s use of physical\\n\\nforce, whether direct or indirect, could cause a violent result, the force used categorically\\n\\nis violent. See id. at 1415; see also In re Irby, 858 F.3d 231, 236, 238 (4th Cir. 2017)\\n\\n(holding that second-degree retaliatory murder is a crime of violence under Section\\n\\n924(c)’s force clause and noting that the “distinction . . . between indirect and direct\\n\\napplications of force . . . no longer remains valid in light of Castleman’s explicit rejection\\n\\nof such a distinction”) (citations and internal quotation marks omitted).\\n\\n A conviction for first-degree murder under Virginia law requires the “willful,\\n\\ndeliberate, and premeditated” killing of another. Va. Code § 18.2-32. Murder “requires\\n\\nthe use of force capable of causing physical pain or injury to another person” irrespective\\n\\nwhether that force is exerted directly or indirectly by a defendant. See In re Irby, 858 F.3d\\n\\nat 236, 238. Therefore, we conclude that the crime of first-degree murder under Virginia\\n\\nlaw qualifies categorically as a crime of violence under the force clause, and we affirm the\\n\\ncapital defendants’ Section 924(c) convictions that are based on the commission of this\\n\\nVirginia offense.\\n\\n 34\\n\\f Likewise, because federal witness tampering by murder also requires the unlawful\\n\\nkilling of another, which may be accomplished by force exerted either directly or indirectly,\\n\\nwe find no merit in the capital defendants’ challenge to their federal witness tampering\\n\\nconvictions under 18 U.S.C. § 1512(a)(1)(C). 21 See In re Irby, 858 F.3d at 236.\\n\\nAccordingly, we affirm the Section 924(c) convictions predicated on the capital\\n\\ndefendants’ convictions for federal witness tampering by murder, in violation of Section\\n\\n1512(a)(1)(C).\\n\\n 2.\\n\\n We next consider the defendants’ argument that their Section 924(c) convictions\\n\\nbased on Hobbs Act robbery do not qualify as crimes of violence. 22 The defendants argue\\n\\nthat because Hobbs Act robbery can be committed by placing a victim in fear of injury, the\\n\\noffense does not necessarily include as an element the “use, attempted use, or threatened\\n\\n\\n\\n\\n 21\\n Because this offense can be committed in various ways, the statute is divisible.\\nSee Descamps, 570 U.S. at 262. However, we need not apply the modified categorical\\napproach here, because the parties agree and the record establishes that the capital\\ndefendants were convicted of witness tampering by means of murder under Section\\n1512(a)(1)(C). See United States v. Carthorne, 726 F.3d 503, 512 (4th Cir. 2013).\\n 22\\n The defendants convicted of Hobbs Act robbery and the related Section 924(c)\\ncharge are Shantai, Mersadies, and Mathis.\\n 35\\n\\fuse of force,” as required by the force clause. The defendants also contend that because\\n\\nHobbs Act robbery may be accomplished by threatening another with injury to intangible\\n\\nproperty, such as shares of stock in a corporation, Hobbs Act robbery does not qualify as a\\n\\ncrime of violence under the force clause. We disagree with both arguments. 23\\n\\n The Hobbs Act penalizes a person who “in any way or degree obstructs, delays, or\\n\\naffects commerce . . . by robbery or extortion or attempts or conspires so to do, or commits\\n\\nor threatens physical violence to any person or property in furtherance of a plan or purpose\\n\\nto do anything in violation of this section.” 18 U.S.C. § 1951. “Robbery” is defined, in\\n\\nrelevant part, as the taking of personal property from another “by means of actual or\\n\\nthreatened force, or violence, or fear of injury, immediate or future, to his person or\\n\\nproperty.” Id. § 1951(b)(1) (emphasis added).\\n\\n The question whether Hobbs Act robbery, when committed by means of causing\\n\\nfear of injury, qualifies as a crime of violence is guided by our decision in McNeal, 818\\n\\nF.3d 141. In McNeal, we held that the crime of federal bank robbery, which may be\\n\\ncommitted by “force and violence, or by intimidation,” 18 U.S.C. § 2113(a) (emphasis\\n\\nadded), qualifies as a crime of violence under the force clause. 818 F.3d at 152–53. We\\n\\nexplained that the use of intimidation, as proscribed by the bank robbery statute, necessarily\\n\\n“involves the threat to use [physical] force.” Id. at 153. Although the bank robbery statute,\\n\\n\\n\\n 23\\n The Hobbs Act is a divisible statute that prescribes two alternative methods of\\nviolating the Hobbs Act, namely, robbery and extortion. 18 U.S.C. § 1952(b)(1), (2). As\\nbefore, however, we need not apply the modified categorical approach here, because the\\nparties do not dispute and the record supports that the defendants were charged with and\\nconvicted of Hobbs Act robbery. See Carthorne, 726 F.3d at 512.\\n 36\\n\\fSection 2113, refers to use of “intimidation,” rather than “fear of injury,” we see no material\\n\\ndifference between the two terms for purposes of determining whether a particular type of\\n\\nrobbery qualifies as a crime of violence. Nor are we aware of any case in which a court\\n\\nhas interpreted the phrase “fear of injury” as meaning anything other than intimidation.\\n\\n We also observe that both Section 924(c) and Hobbs Act robbery reference the use\\n\\nof force or threatened use of force against “property” generally, without further defining\\n\\nthe term “property.” Compare 18 U.S.C. § 924(c)(3)(A) (defining a “crime of violence”\\n\\nas having “as an element the use, attempted use, or threatened use of physical force against\\n\\n. . . property of another”), with 18 U.S.C. § 1951 (defining “robbery” as a taking “by means\\n\\nof actual or threatened force, or violence, or fear of injury, immediate or future, to his . . .\\n\\nproperty”). And neither provision draws any distinction between tangible and intangible\\n\\nproperty. Thus, we do not discern any basis in the text of either statutory provision for\\n\\ncreating a distinction between threats of injury to tangible and intangible property for\\n\\npurposes of defining a crime of violence. Accordingly, we conclude that Hobbs Act\\n\\nrobbery constitutes a crime of violence under the force clause of Section 924(c). 24 See\\n\\nUnited States v. Garcia-Ortiz, 904 F.3d 102, 109 (1st Cir. 2018); United States v. Hill, 890\\n\\n\\n\\n\\n 24\\n The defendants offer two additional arguments in support of their contention that\\nHobbs Act robbery is not a crime of violence. The defendants first assert that a threat of\\ninjury does not require the threat of violent force, such as when a perpetrator threatens\\nanother’s property by throwing paint on someone’s house. The defendants also assert that\\nbecause Hobbs Act robbery is akin to common law robbery, Hobbs Act robbery does not\\ncontain the required force element. After reviewing these arguments, we conclude that\\nneither has merit.\\n\\n 37\\n\\fF.3d 51, 60 (2d Cir. 2018); United States v. Rivera, 847 F.3d 847, 849 (7th Cir. 2017); In\\n\\nre Fleur, 824 F.3d 1337, 1340–41 (11th Cir. 2016).\\n\\n 3.\\n\\n Finally, the capital defendants challenge their Section 924(c) convictions predicated\\n\\non their VICAR convictions for kidnapping under Virginia law. They argue that because\\n\\nkidnapping under Virginia law can be committed by deception, the offense is not\\n\\ncategorically a crime of violence under the force clause. See Va. Code § 18.2-47(A). 25 We\\n\\nagree.\\n\\n Virginia’s kidnapping statute generally prohibits an individual from seizing or\\n\\ntaking another person “by force, intimidation, or deception” with the intent to deprive that\\n\\nperson of his or her liberty. Va. Code § 18.2-47(A). Although the statute describes various\\n\\nways that an individual may commit the act of kidnapping, namely, by force, intimidation,\\n\\nor deception, these alternatives represent various means of committing the crime, not\\n\\nalternative elements of the crime. See Fuertes, 805 F.3d at 498 (“[A]lthough § 1591(a)\\n\\nrefers to alternative means of commission, it contains a single, indivisible set of elements,\\n\\nand the categorical approach applies.”). Accordingly, we conclude that Virginia Code §\\n\\n18.2-47(A) is indivisible, requiring application of the categorical approach. See id.\\n\\n\\n\\n 25\\n The capital defendants also assert that kidnapping under Virginia law does not\\nqualify as a crime of violence under the 924(c) residual clause, because that clause is\\nunconstitutional in light of the Supreme Court’s holding in Johnson II, 135 S. Ct. 2551.\\nAs we explained above, the Supreme Court recently has concluded that the 924(c) residual\\nclause is unconstitutionally vague. Davis, 139 S. Ct. at 2336. Accordingly, our\\ndetermination explained below, that kidnapping under Virginia law does not qualify as a\\ncrime of violence offense under the force clause, is dispositive.\\n 38\\n\\f A review of the statute’s language and the decisions by Virginia’s appellate courts\\n\\ninterpreting that language indicates that the offense may be committed in a non-violent\\n\\nmanner through deceptive means. 26 Va. Code § 18.2-47; Jerman v. Dir. of the Dep’t of\\n\\nCorrs., 593 S.E.2d 255, 259 (Va. 2004) (affirming a kidnapping conviction when the\\n\\nevidence proved that one of the defendant’s confederates convinced the victim to come\\n\\nwith her under the ruse of selling illegal narcotics when the defendant’s true intent was to\\n\\nharm the victim); Kent v. Commonwealth, 183 S.E. 177, 177–78 (Va. 1936) (affirming a\\n\\nconviction for kidnapping committed by fraud and coercion and without the use of force\\n\\nor restraint). Because Virginia defines kidnapping in a manner that allows for both violent\\n\\nand nonviolent means of committing the offense, the statute “sweep[s] more broadly” than\\n\\nthe force clause’s requirement that the offense be committed with the use, or attempted or\\n\\nthreatened use, of physical force. See Descamps, 570 U.S. at 261; 18 U.S.C. §\\n\\n924(c)(3)(A). Thus, we conclude that kidnapping under Virginia law does not qualify\\n\\ncategorically as a crime of violence under the force clause. We therefore vacate the capital\\n\\ndefendants’ Section 924(c) convictions stemming from the commission of VICAR based\\n\\non kidnapping under Virginia law.\\n\\n G.\\n\\n\\n\\n\\n 26\\n To determine if a state conviction qualifies as a crime of violence, we look to the\\nlanguage of the statute as well as decisions by the state’s courts. See United States v.\\nDoctor, 842 F.3d 306, 312 (4th Cir. 2016).\\n 39\\n\\f Finally, the capital defendants argue that the fines imposed on each of them should\\n\\nbe vacated as substantively unreasonable. 27 We disagree.\\n\\n We review the substantive reasonableness of any part of a sentence for abuse of\\n\\ndiscretion. Gall v. United States, 552 U.S. 38, 51 (2007). After considering the factors\\n\\noutlined in Sentencing Guidelines Section 5E1.2(d) and concluding that a fine was\\n\\nwarranted, the district court imposed on each defendant a $5,000 fine, a sum well below\\n\\nthe advisory guidelines range. 28 See U.S.S.G. § 5E1.2. The defendants have not offered\\n\\nany evidence rebutting the presumption of reasonableness that we apply to the district\\n\\ncourt’s below-Guidelines imposition of fines. United States v. Perez-Jiminez, 654 F.3d\\n\\n1136, 1146–47 (10th Cir. 2011). Therefore, we hold that the court did not abuse its\\n\\ndiscretion in imposing those fines in this case.\\n\\n\\n\\n III.\\n\\n For these reasons, we affirm in part the district court’s judgment, vacate the capital\\n\\ndefendants’ Section 924(c) convictions predicated on their VICAR convictions for\\n\\nkidnapping under Virginia law, and remand for resentencing of those capital defendants,\\n\\nnamely, Mathis, Shantai, Mersadies, and Kweli.\\n\\n\\n 27\\n The defendants do not challenge the assessment of their fines as procedurally\\nunreasonable.\\n 28\\n Kweli is the only capital defendant whose sentencing transcript was included in\\nthe record before this Court. Because the defendants have not raised an objection to the\\ncompleteness of the record, our analysis of the substantive reasonableness of the fines\\nassessed against each defendant stems from our review of Kweli’s sentencing transcript\\nonly.\\n 40\\n\\f AFFIRMED IN PART,\\n VACATED IN PART,\\n AND REMANDED\\n\\n\\n\\n\\n41\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4421666/\", \"author_raw\": \"BARBARA MILANO KEENAN, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"KEENAN"},"judge2":{"kind":"string","value":"DIAZ"},"judge3":{"kind":"string","value":"DUNCAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4644413/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Daniel Lamont MATHIS, A/K/A Gunna, A/K/A Mooch, A/K/A D-Man, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Mersadies Lachelle Shelton, A/K/A Lady Gunns, A/K/A Maisha Love Uhuru, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Shantai Monique Shelton, A/K/A Tai, A/K/A Lady Blaze, A/K/A Boss Lady, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Kweli Uhuru, A/K/A Travis Leon Bell, A/K/A K. Gunns, A/K/A Black Wolf, A/K/A Babi, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Anthony Darnell Stokes, A/K/A Face, A/K/A Black Face, A/K/A Kenyata Baraka, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Halisi Uhuru, A/K/A Arthur Lee Gert Wright, A/K/A Gritty, A/K/A Bones, A/K/A Big Homey, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Fourth Circuit\nDate decided: 2019-07-31\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 16-4633\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nDANIEL LAMONT MATHIS, a/k/a Gunna, a/k/a Mooch, a/k/a D-Man,\n\n Defendant - Appellant.\n\n\n No. 16-4635\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nMERSADIES LACHELLE SHELTON, a/k/a Lady Gunns, a/k/a Maisha Love\nUhuru,\n\n Defendant - Appellant.\n\n\n No. 16-4637\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\fSHANTAI MONIQUE SHELTON, a/k/a Tai, a/k/a Lady Blaze, a/k/a Boss Lady,\n\n Defendant - Appellant.\n\n\n No. 16-4641\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nKWELI UHURU, a/k/a Travis Leon Bell, a/k/a K. Gunns, a/k/a Black Wolf, a/k/a\nBabi,\n\n Defendant - Appellant.\n\n\n No. 16-4837\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nANTHONY DARNELL STOKES, a/k/a Face, a/k/a Black Face, a/k/a Kenyata\nBaraka,\n\n Defendant - Appellant.\n\n\n No. 16-4838\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n\n 2\n\f v.\n\nHALISI UHURU, a/k/a Arthur Lee Gert Wright, a/k/a Gritty, a/k/a Bones, a/k/a Big\nHomey,\n\n Defendant - Appellant.\n\n\nAppeals from the United States District Court for the Western District of Virginia, at\nCharlottesville. Glen E. Conrad, District Judge. (3:14-cr-00016-GEC-JCH-1; 3:14-cr-\n00016-GEC-JCH-2; 3:14-cr-00016-GEC-JCH-3; 3:14-cr-00016-GEC-JCH-4; 3:14-cr-\n00016-GEC-JCH-6; 3:14-cr-00016-GEC-JCH-7)\n\n\nArgued: January 24, 2018 Decided: July 31, 2019\n\n\nBefore KEENAN and DIAZ, Circuit Judges, and DUNCAN, Senior Circuit Judge.\n\n\nAffirmed in part, vacated in part, and remanded by published opinion. Judge Keenan wrote\nthe opinion, in which Judge Diaz and Senior Judge Duncan joined.\n\n\nARGUED: Frederick T. Heblich, Jr., OFFICE OF THE FEDERAL PUBLIC\nDEFENDER, Charlottesville, Virginia, for Appellant Daniel Lamont Mathis. Paul Graham\nBeers, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke, Virginia, for\nAppellant Anthony Darnell Stokes. Christopher R. Kavanaugh, OFFICE OF THE\nUNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF:\nLarry W. Shelton, Federal Public Defender, Roanoke, Virginia, Geremy C. Kamens,\nFederal Public Defender, Alexandria, Virginia, Paul G. Gill, Assistant Federal Public\nDefender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia;\nAaron Lee Cook, Harrisonburg, Virginia; David Anthony Eustis, Charlottesville, Virginia;\nRhonda E. Quagliana, Charlottesville, Virginia; Michael T. Hemenway, Charlottesville,\nVirginia; Sherwin John Jacobs, Harrisonburg, Virginia, for Appellants. Rick A.\nMountcastle, Acting United States Attorney, Roanoke, Virginia, Ronald M. Huber,\nAssistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,\nCharlottesville, Virginia, for Appellee.\n\n\n\n\n 3\n\fBARBARA MILANO KEENAN, Circuit Judge:\n\n This case involves the prosecution of several members of a violent street gang\n\nknown as the Double Nine Goon Syndikate (DNGS). After a multi-week trial, a jury\n\nconvicted Halisi Uhuru (Halisi), Anthony Stokes (Stokes), Kweli Uhuru (Kweli),\n\nMersadies Shelton (Mersadies), Shantai Shelton (Shantai), and Daniel Mathis (Mathis)\n\n(collectively, the defendants) of conspiracy to violate the Racketeer Influenced and Corrupt\n\nOrganizations Act (RICO), 18 U.S.C. § 1962(d), based on their activities related to the\n\ngang.\n\n Mathis, Shantai, Mersadies, and Kweli (collectively, the capital defendants) also\n\nwere convicted, in relation to the murder of an off-duty police officer, of violent crimes in\n\naid of racketeering activity in violation of 18 U.S.C. § 1959 (VICAR) by committing\n\nkidnapping and murder under Virginia law, as well as witness tampering by means of\n\nmurder in violation of 18 U.S.C. § 1512(a). The capital defendants were sentenced to serve\n\nterms of life imprisonment. Halisi and Stokes additionally were convicted of obstruction\n\nof justice in violation of 18 U.S.C. § 1512(c)(1). 1\n\n On appeal, the defendants raise several challenges concerning their trial and\n\nsentences. Upon our review of these arguments, we vacate in part with respect to the capital\n\ndefendants’ convictions that are predicated on commission of kidnapping under Virginia\n\n\n\n 1\n The other crimes of conviction include Hobbs Act robberies in violation of 18\nU.S.C. § 1951(a), VICAR offenses in violation of 18 U.S.C. § 1959, and various\nconvictions for the use or carry of a firearm during and in relation to a violent crime in\nviolation of 18 U.S.C. § 924(c).\n\n 4\n\flaw. Accordingly, we also remand the capital defendants’ convictions for resentencing.\n\nWe affirm the balance of the district court’s judgments.\n\n\n\n I.\n\n The Bloods is a nationwide street gang. 2 Groups of Bloods are organized into “sets”\n\nor smaller, individual groups of Bloods. One of these sets, DNGS, was founded by Halisi,\n\nStokes, and Kweli in 2013 during their incarceration for crimes unrelated to the present\n\ncase.\n\n DNGS operates through a hierarchical structure. Halisi served as “high OG” or\n\n“Double OG,” DNGS’s leader. Stokes was second in command as “low [OG].” Kweli\n\nalso held a leadership role with the rank of “OG,” “Big Homey,” or a “Low 020.” Another\n\nDNGS leader was responsible for operations conducted by incarcerated DNGS members.\n\nThese four individuals composed DNGS’s “Roundtable,” or leadership council. Reporting\n\nto the council were members organized by rank, including sergeant, lieutenant, and major.\n\nNew DNGS members held the title of “soldier.”\n\n Upon gaining membership into the gang, members were given notebooks to study\n\nthat included the rules and the history of the Bloods gang and the DNGS set. Gang\n\nmembers communicated using certain codes and phrases in an effort to ensure that their\n\ncommunications remained incomprehensible to law enforcement authorities and others.\n\n\n\n\n 2\n We set forth the facts in the light most favorable to the government, the prevailing\nparty at trial. Evans v. United States, 504 U.S. 255, 257 (1996).\n 5\n\fMembers outwardly reflected their association with the Bloods and DNGS by wearing red\n\nclothing items, including red bandanas, and by obtaining tattoos reflecting gang insignia.\n\n DNGS financed itself through the proceeds of various illegal activities undertaken\n\nby members, including armed robberies, home invasions, and burglaries. Members were\n\nexpected to “put in work” to advance their rank in the gang, that is, to commit crimes in\n\norder to show their commitment and loyalty. If a member refused to “put in work,” that\n\nmember likely would have been “violated,” or beaten.\n\n Both while imprisoned and after their release, Stokes, Kweli, and Halisi began\n\nrecruiting new members to the newly formed DNGS set, including Shantai, Mersadies, and\n\nMathis. As the gang’s membership grew, DNGS members “put in work” committing a\n\nseries of crimes from late 2013 into early 2014. This spree of illegal activities included a\n\nnumber of armed robberies of convenience stores, home invasions, burglaries, and other\n\ncrimes committed in central Virginia.\n\n On the night of January 31, 2014, the capital defendants attacked Kevin Quick\n\n(Quick), an off-duty reserve captain with the Waynesboro, Virginia, Police Department, as\n\nhe was departing his vehicle. The four defendants compelled Quick back into his vehicle\n\nat gunpoint, drove him to a nearby ATM, and forced him to withdraw money from his\n\naccount. After learning that Quick was a police officer, and realizing that Quick had\n\n“already seen their face[s],” the capital defendants decided that “it was too late . . . to let\n\n[Quick] go.” They drove Quick to a remote area off the main roadway, removed Quick\n\n\n\n\n 6\n\ffrom the car, and fired a single shot into Quick’s head, killing him and leaving his body\n\nbehind. 3\n\n The next day, the capital defendants met with Halisi and Stokes in Manassas,\n\nVirginia. The defendants rented two hotel rooms to host a “B-House,” or a meeting of\n\nDNGS members. Throughout that day, the defendants and other DNGS members\n\ndiscussed potential drug trafficking plans and engaged with other drug dealers in\n\ntransactions involving the distribution of quantities of drugs, including crack cocaine.\n\n The capital defendants left the hotel the next morning and drove in Quick’s vehicle\n\nto Front Royal, Virginia. Concerned that the vehicle could link them to the murder, the\n\ncapital defendants bought bleach, rubber gloves, and a jug to hold gasoline for setting the\n\nvehicle on fire. Leaving Kweli behind, Mathis, Shantai, and Mersadies drove the vehicle\n\nto a friend’s house where they cleaned the vehicle with bleach.\n\n Later that day, Mathis and Mersadies committed a robbery. During the robbery,\n\nMathis fired one shot from his pistol. Investigators later recovered a bullet and a cartridge\n\nfrom the scene of this robbery and matched these items through forensic testing to the\n\nweapon used in Quick’s murder and a previous robbery.\n\n Mathis and Mersadies quickly left the scene of the robbery in Quick’s vehicle,\n\nwhich malfunctioned shortly thereafter. They pushed the disabled vehicle to a nearby\n\ndriveway and doused the vehicle with additional bleach. After receiving a call from\n\nMersadies asking for help, Halisi and Stokes decided that Stokes would drive to meet\n\n\n\n 3\n The record does not show which of the capital defendants fired the fatal shot.\n 7\n\fMersadies and Mathis, as well as Shantai, who had reunited with Mersadies and Mathis.\n\nOnce Stokes reached the group, Mathis and Shantai told him that Quick’s vehicle needed\n\nto be destroyed, but Stokes stated that they would “find a way to get rid of it the next day.”\n\n Stokes and Halisi later obtained a hotel room in which Mersadies, Mathis, and\n\nShantai could “hide out.” 4 As Quick’s disappearance became publicized, Mersadies,\n\nMathis, and Shantai discussed absconding to Montana to avoid being arrested. Mersadies\n\ninformed Kweli of these discussions through frequent text messages.\n\n While Kweli was attempting to have Quick’s vehicle destroyed, law enforcement\n\nofficers located the abandoned vehicle. Evidence technicians recovered the following\n\nevidence from the vehicle: Kweli’s fingerprint on Quick’s driver’s license, which was\n\nfound in Quick’s wallet inside the vehicle; fingerprints belonging to Mathis, Shantai, and\n\nMersadies on the vehicle or on items within the vehicle; Mersadies’ DNA on a piece of\n\nchewing gum left in the vehicle’s ashtray; and Mathis’ DNA on rubber gloves left in the\n\nvehicle.\n\n Once news media reported that Quick’s vehicle had been recovered, the defendants\n\nplanned their escape to Montana and destroyed other evidence related to their crimes.\n\nHalisi ordered Leslie Casterlow (Casterlow), who frequently acted as a drug courier for\n\nDNGS, to “get rid of” Quick’s ATM card. Kweli ordered the other defendants to delete\n\nany incriminating text messages. Also, Shantai and one other DNGS member\n\ndisassembled the gun used to kill Quick and placed the gun components in a pillowcase.\n\n\n 4\n At this time, the defendants were spread out over various locations in Northern\nVirginia.\n 8\n\f A day after Quick’s vehicle was recovered, Mathis, Shantai, and Mersadies were\n\narrested at the hotel. After hearing news of the arrest, Halisi had his girlfriend destroy both\n\nhis and Casterlow’s phones. Casterlow, who still had possession of the murder weapon\n\nparts, hid those items behind a dumpster at their hotel.\n\n During this time, Stokes was traveling to Washington, D.C. and Maryland to\n\npurchase narcotics with an associate, Jamar Rice (Rice), who later became a government\n\nwitness. After receiving information from an unidentified caller that law enforcement had\n\nraided the hotel 5 to which Stokes was returning after his trip with Rice, Stokes told Rice\n\nthat his “homies” had carjacked and killed a police officer, and had left his body in the\n\nwoods.\n\n Stokes returned to Virginia to pick up Halisi, Halisi’s girlfriend, and Casterlow.\n\nStokes told Casterlow to retrieve the murder weapon components from behind the\n\ndumpster and to drive the group to a nearby interstate highway. As Casterlow drove along\n\nthe highway, Stokes threw the murder weapon parts over the wall bordering the road.\n\nThereafter, Halisi, Stokes, and Casterlow were arrested at the hotel. Law enforcement\n\nofficers later recovered the weapon parts with Casterlow’s assistance.\n\n The defendants were charged in a 36-count indictment with conspiring to participate\n\nin a racketeering enterprise that included the commission of assaults, robberies, burglaries,\n\nkidnapping, carjacking, murder, drug trafficking, and obstruction of justice. After the jury\n\nwas sworn during the first trial, the district court was informed that Kweli had removed\n\n\n\n 5\n During this raid, law enforcement officers arrested Mathis, Mersadies, and Shantai.\n 9\n\ffrom the courtroom a jury list containing identifying information about the jury panel\n\nmembers and their families. The district court thereafter granted the defendants’ motion\n\nfor a mistrial.\n\n A second trial was held in the Roanoke Division of the Western District of Virginia\n\nfollowing a request by some of the defendants to change venue. The district court also\n\ngranted the government’s request to empanel an anonymous jury. At the close of the\n\nsecond trial, a jury found the defendants guilty on all counts. The district court later\n\nsentenced the capital defendants each to serve a term of life imprisonment. Halisi and\n\nStokes received sentences of 144 and 160 months’ imprisonment, respectively. Several\n\nother sentences were imposed on the various defendants. This appeal followed.\n\n\n\n II.\n\n A.\n\n The defendants first argue that the district court committed reversible error in\n\ndeciding to empanel an anonymous jury. According to the defendants, there was no\n\nevidence supporting the district court’s finding that the defendants had the capacity to harm\n\nor to intimidate the jurors.\n\n We review a district court’s decision to empanel an anonymous jury for abuse of\n\ndiscretion. United States v. Dinkins, 691 F.3d 358, 371 (4th Cir. 2012). In a capital case,\n\na district court may empanel an anonymous jury only after determining “by a\n\npreponderance of the evidence that providing the [juror] list . . . may jeopardize the life or\n\nsafety of any person.” Id. at 372 (citing 18 U.S.C. § 3432). We choose to apply this strict\n\n 10\n\fstandard to both the capital defendants and the non-capital defendants, because the test is\n\nsatisfied for both groups.\n\n A district court must base its decision to empanel an anonymous jury on evidence\n\nin the record, rather than solely on the allegations in the indictment. Id. at 373. Use of an\n\nanonymous jury is appropriate “only in rare circumstances when two conditions are met:\n\n(1) there is strong reason to conclude that the jury needs protection from interference or\n\nharm, or that the integrity of the jury’s function will be compromised absent anonymity;\n\nand (2) reasonable safeguards have been adopted to minimize the risk that the rights of the\n\naccused will be infringed.” Id. at 372 (citations omitted).\n\n To determine whether there are “strong reason[s]” for empaneling an anonymous\n\njury, we consider five factors:\n\n (1) the defendant’s involvement in organized crime, (2) the defendant’s\n participation in a group with the capacity to harm jurors, (3) the defendant’s\n past attempts to interfere with the judicial process, (4) the potential that, if\n convicted, the defendant will suffer a lengthy incarceration and substantial\n monetary penalties, and (5) extensive publicity that could enhance the\n possibility that jurors’ names would become public and expose them to\n intimidation or harassment.\n\nId. at 373 (citing United States v. Ross, 33 F.3d 1507, 1520 (11th Cir. 1994)). These factors\n\nare not exhaustive but are meant to provide guidance in the district court’s fact-specific\n\ninquiry. Id.\n\n In the present case, during the first trial, the district court raised the question whether\n\nuse of an anonymous jury would be appropriate. When the defendants stated their\n\nopposition, the court took no further action. However, as noted above, the court later\n\nreceived information that Kweli had removed the jury panel list containing the members’\n\n 11\n\fpersonal information and had kept the list overnight in the jail. After the court informed\n\nthe jury members that the jury list had been retained by a defendant overnight, some of the\n\ndefendants moved for a mistrial, which the court granted.\n\n In view of these events, the government filed a motion at the beginning of the second\n\ntrial requesting an anonymous jury. The district court granted the government’s motion.\n\n Applying the standards outlined in Dinkins and reviewing the district court’s\n\nreasoning, we conclude for several reasons that the district court did not abuse its discretion\n\nin having the case heard by an anonymous jury. First, the indictment alleged that the\n\ndefendants were members of a violent street gang and were involved in a number of violent\n\ncriminal offenses, including witness tampering by murder. The record contained sworn\n\nstatements by various cooperating witnesses and DNGS members corroborating these\n\nallegations. This evidence strongly suggested that the defendants had associates who were\n\nnot incarcerated and could intimidate or harm the jurors. See Ross, 33 F.3d at 1520.\n\n Second, FBI special agent Scott Cullins expressed to the court concerns about juror\n\nsafety given the gang’s “history of not only retribution, but also preventative actions.”\n\nMoreover, Deputy United States Marshal Mark Haley informed the court that at least two\n\ndefendants, Kweli and Halisi, had continued their DNGS recruitment efforts from jail while\n\nawaiting trial. The circumstances leading to the mistrial thus more than justified the court’s\n\nconcern for juror safety. And third, if convicted, several of the defendants faced lengthy\n\nincarceration and substantial penalties that may have induced them to intimidate the jury\n\nin an attempt to influence the outcome of the trial. See id. at 1520–21.\n\n\n\n 12\n\f We also observe that the district court adopted reasonable safeguards to minimize\n\nthe risk that the defendants’ constitutional rights would be infringed by the use of an\n\nanonymous jury. Dinkins, 691 F.3d at 378. The court provided the venire members with\n\na neutral, non-prejudicial explanation of its decision that minimized the danger of prejudice\n\nto the defendants. See United States v. Hager, 721 F.3d 167, 188 (4th Cir. 2013). And the\n\ncourt’s decision did not interfere with the defendants’ ability to conduct a thorough voir\n\ndire examination. Counsel were given full access to all juror information, and the\n\ndefendants were permitted to review redacted juror questionnaires. Accordingly, upon our\n\nconsideration of all the facts and circumstances before the district court, we hold that the\n\ncourt’s decision to empanel an anonymous jury was supported by a preponderance of the\n\nevidence and, thus, was not an abuse of discretion.\n\n B.\n\n Before the jury heard evidence in the case, the court considered pretrial motions\n\nseeking the admission of a number of inculpatory co-conspirator statements. The court\n\nultimately overruled the defendants’ objections and received the statements into evidence\n\nduring the trial. The defendants argue that the district court erred in admitting three of\n\nthese statements, because they were not made in furtherance of the charged RICO\n\nconspiracy, and their admission violated the defendants’ rights under the Confrontation\n\nClause as detailed in Crawford v. Washington, 541 U.S. 36 (2004). We disagree with the\n\ndefendants’ arguments.\n\n 1.\n\n\n\n 13\n\f We review the district court’s decision to admit co-conspirator statements for abuse\n\nof discretion. United States v. Graham, 711 F.3d 445, 453 (4th Cir. 2013). To introduce\n\na co-conspirator’s statements under Federal Rule of Evidence 801(d)(2)(E), the\n\ngovernment was required to show by a preponderance of the evidence that (1) a conspiracy\n\nexisted, (2) the conspiracy included both the declarants and the defendants against whom\n\nthe statements were offered, and (3) the statements were made during the course of and in\n\nfurtherance of the conspiracy. Bourjaily v. United States, 483 U.S. 171, 175 (1987).\n\n The government proffered that it would establish that the statements were made\n\nduring and in relation to the broader DNGS racketeering conspiracy, which included\n\nQuick’s murder and the ensuing actions to avoid detection and arrest. 6 Shantai made the\n\nfirst challenged statement the morning after Quick’s murder, giving Anthony White\n\n(White), another DNGS member, a detailed account of the kidnapping and murder. This\n\nstatement included the fact that the capital defendants killed Quick, because “they found\n\nout he was a cop.” Both White and Shantai were members of the conspiracy. Although\n\nWhite had not participated in Quick’s murder, the statement provided information to White\n\non the status of the DNGS criminal enterprise, of which he was a member. See United\n\nStates v. Mandell, 752 F.3d 544, 552 (2d Cir. 2014) (noting that statements made between\n\nco-conspirators to “inform each other as to the progress or status of the conspiracy” are\n\n\n 6\n We find no merit in the defendants’ argument that Quick’s kidnapping and murder\nand the later cover-up of those crimes were not part of the DNGS racketeering conspiracy.\nAs noted, the government’s proffer alleged that Quick’s murder was one of many\nracketeering acts done on behalf of the broader DNGS conspiracy. And our review of the\nrecord evidence, discussed more fully below in Section II.E., leads us to conclude that\nQuick’s kidnapping and murder were part of the larger-scale DNGS conspiracy.\n 14\n\fstatements made in furtherance of that conspiracy). Accordingly, Shantai’s statement to\n\nWhite was admissible as a statement of a co-conspirator made “in furtherance of the\n\nconspiracy.”\n\n Kweli made the second challenged statement while he and Halisi were arranging for\n\nsomeone to destroy Quick’s vehicle. Kweli called Shiquan Jackson (Jackson), a DNGS\n\nmember, to inform him of the situation. Kweli told Jackson that “[Kweli] just did\n\nsomething bad,” and that he and the other capital defendants “just peter-rolled [i.e. killed]\n\na cop” and had to “lay low.” During this conversation, Kweli asked Jackson and Jackson’s\n\nbrother, Devante Jackson, also a DNGS member, to contact Halisi, find the vehicle, and\n\nquickly dispose of it. Again, all parties to this statement were members of the conspiracy,\n\nand Kweli’s comments to Jackson were made in furtherance of the conspiracy. Not only\n\nwas Kweli providing Jackson information regarding the status of the conspiracy, but he\n\nalso sought to “induce a coconspirator’s assistance” to destroy evidence for the purpose of\n\nevading detection and arrest. Id. Thus, because Kweli’s statement to his fellow DNGS\n\nmember was intended to “prolong the unlawful activities” of the DNGS enterprise, United\n\nStates v. Altomare, 625 F.2d 5, 8 n.9 (4th Cir. 1980), this statement was admissible under\n\nRule 801(d)(2)(E).\n\n The third challenged statement involves comments Mathis made to his girlfriend,\n\nDierra Lloyd (Lloyd), who was not a DNGS member. After Quick’s murder, Mathis\n\nconfessed to Lloyd that he and the other capital defendants “killed a cop.” Mathis also\n\n\n\n\n 15\n\fasked Lloyd if she “knew a place where [he] could get rid of [Quick’s vehicle].” 7 Although\n\nthis statement was not made to a member of the DNGS enterprise, we have recognized that\n\n“even casual relationships to the conspiracy” will satisfy the nexus requirement of Rule\n\n801(d)(2)(E). United States v. Smith, 441 F.3d 254, 262 (4th Cir. 2006) (citation omitted).\n\nThis statement also was made “in furtherance of the conspiracy” because Mathis sought\n\nLloyd’s assistance in disposing of Quick’s vehicle. See Mandell, 752 F.3d at 552 (citation\n\nomitted). Therefore, Mathis’ statement likewise was admissible under Rule 801(d)(2)(E).\n\n 2.\n\n We turn to address the defendants’ contention that the admission of the co-\n\nconspirator statements violated their rights under the Confrontation Clause. We review de\n\nnovo this question of law. United States v. Lighty, 616 F.3d 321, 376 (4th Cir. 2010).\n\n The Confrontation Clause protects a defendant’s right to cross-examine a declarant\n\nmaking a “testimonial” statement. Davis v. Washington, 547 U.S. 813, 821 (2006).\n\nAlthough the Supreme Court has not articulated a precise definition of the term\n\n“testimonial,” the Court has provided concrete examples of testimonial evidence. At a\n\nminimum, such evidence includes testimony given at a preliminary hearing, before a grand\n\njury, and at a formal trial, as well as statements made during a police interrogation. See\n\nCrawford, 541 U.S. at 68. More recently, the Court has explained that a statement is\n\ntestimonial in nature if the statement was made or procured with the “primary purpose” of\n\n\n\n 7\n It is not clear from the trial record whether Lloyd helped Mathis and the other\nmembers destroy the vehicle following Mathis’ request.\n\n 16\n\fcreating an “out-of-court substitute for trial testimony.” Ohio v. Clark, 135 S. Ct. 2173,\n\n2180 (2015) (quoting Michigan v. Bryant, 562 U.S. 344, 358 (2011)).\n\n We conclude that the challenged co-conspirator statements were not testimonial in\n\nnature. The defendants made the challenged statements to co-conspirators and to Lloyd\n\nabout criminal activities related to the DNGS criminal enterprise. Moreover, all the\n\nstatements were made in furtherance of that criminal conspiracy and were not intended to\n\nbe used as a substitute for trial testimony. Accordingly, the admission of the challenged\n\nstatements did not violate the defendants’ rights under the Confrontation Clause. 8 See\n\nUnited States v. Jordan, 509 F.3d 191, 194, 201 (4th Cir. 2007) (holding that statements\n\nmade by declarant and alleged co-conspirator to the declarant’s friend describing events\n\nrelated to the murder of a drug courier were non-testimonial and, thus, did not violate the\n\nConfrontation Clause).\n\n C.\n\n The defendants next contend that the indictment was defective because it charged\n\nthat Quick was prevented from communicating “to a law enforcement officer,” rather than\n\n“to a law enforcement officer . . . of the United States,” as provided in the language of 18\n\nU.S.C. § 1512(a)(1)(C). The district court did not reach the merits of this argument,\n\ndetermining that the defendants’ motion to dismiss the witness tampering count and related\n\n\n 8\n Given that admission of the co-conspirator statements did not violate the\nConfrontation Clause, we reject the defendants’ additional claim under Bruton v. United\nStates, 391 U.S. 123 (1968). United States v. Dargan, 738 F.3d 643, 651 (4th Cir. 2013)\n(“Statements that do not implicate the Confrontation Clause, a fortiori, do not implicate\nBruton.”).\n\n 17\n\fSection 924(c) count was untimely and that they failed to establish “good cause” to excuse\n\ntheir untimely filing.\n\n The defendants concede that their motion to dismiss was untimely but argue that\n\nthey had good cause for the untimely filing, because some of the defendants’ attorneys\n\nwere unaware of the alleged defect in the indictment. The defendants alternatively\n\nmaintain that despite their untimely motion, this Court may review the merits of their\n\nargument for plain error, and conclude under that standard that the indictment was\n\ndefective. We conclude that the defendants failed to show good cause and that, in any\n\nevent, there was no defect in the indictment.\n\n We review the district court’s finding of lack of good cause for abuse of discretion.\n\nUnited States v. Soto, 794 F.3d 635, 655 (6th Cir. 2015); cf. United States v. Cowley, 814\n\nF.3d 691, 698 (4th Cir. 2016) (reviewing for abuse of discretion the district court’s finding\n\nthat defendant did not establish good cause to rebut the presumption of untimeliness under\n\nthe Innocence Protection Act). Under Federal Rule of Criminal Procedure 12, a challenge\n\nto a defect in an indictment “must be raised by pretrial motion if the basis for the motion\n\nis then reasonably available and the motion can be determined without a trial on the\n\nmerits.” 9 Fed. R. Crim. P. 12(b)(3)(B). If a party fails to meet this deadline, the motion is\n\n\n 9\n This version of Rule 12 took effect on December 1, 2014, a few weeks after the\nindictment was returned by the grand jury. The defendants do not argue that the prior\nversion of Rule 12 applies. In any event, we determine that the current version of Rule 12\napplies, because this case was pending at the time the Rule took effect and the Rule’s\napplication is “just and practicable.” See S. Ct. Order Amending Fed. R. Crim. P. at ¶ 2\n(Apr. 25, 2014) (providing that the new rules “shall govern in all proceedings in criminal\ncases thereafter commenced and, insofar as just and practicable, all proceedings then\npending”).\n 18\n\funtimely. Id. 12(c)(3). A district court “may consider” an untimely motion only if the\n\nmoving party “shows good cause” for its delayed action. Id.\n\n We conclude that the district court did not abuse its discretion in finding that the\n\nmotion was untimely, and that the defendants failed to show good cause for their delayed\n\nchallenge. Mathis’ counsel informed the court that he had “held onto” the perceived defect\n\nin the indictment “for quite [awhile]” because of his “hope that [he] would get into serious\n\nplea negotiations with the government, and that if [he] did get in serious plea negotiations\n\nwith the government, that [he] could get some mileage out of it.” Counsel further admitted\n\nthat he “could have filed [the motion to dismiss] right before trial, [he] could have filed it\n\nbefore the jury was picked, [he] could have filed it any of those times, and [he] didn’t.”\n\n A party’s affirmative decision to delay filing a motion in an attempt to gain a\n\nstrategic advantage at trial does not amount to good cause for purposes of Rule 12. See\n\nUnited States v. Ramirez, 324 F.3d 1225, 1228 (11th Cir. 2003) (holding that defense tactic\n\nof “sandbagging” is not good cause for failure to file motion to dismiss (citation omitted));\n\nsee also United States v. Oldfield, 859 F.2d 392, 397 (6th Cir. 1988) (noting that one\n\npurpose of Rule 12 is to “restrict[] the defense tactic of ‘sandbagging’” (citation omitted)).\n\nAccordingly, we affirm the district court’s denial of the defendants’ untimely motion to\n\ndismiss the witness tampering charge and the related Section 924(c) counts of the\n\nindictment. 10\n\n\n 10\n We are not persuaded by the defendants’ argument that there was good cause for\nthe untimely motion because some attorneys for the other defendants were unaware of the\nalleged defect. See United States v. Ruhe, 191 F.3d 376, 386–87 (4th Cir. 1999) (holding\n(Continued)\n 19\n\f More fundamentally, there was no defect, plain or otherwise, in the indictment.\n\nGenerally, an indictment is sufficient if it “(1) indicate[s] the elements of the offense and\n\nfairly inform[s] the defendant of the exact charges and (2) enable[s] the defendant to plead\n\ndouble jeopardy in subsequent prosecutions for the same offense.” United States v.\n\nWilliams, 152 F.3d 294, 299 (4th Cir. 1998) (citation omitted). The fact that the language\n\nat issue in the indictment did not track the precise language of the statute did not constitute\n\nerror under these circumstances. Id. The indictment detailed the factual basis for the\n\nwitness tampering charge and cited to the correct statute, fairly apprising the defendants of\n\nthe crime charged and its required elements. Id. Therefore, we reject the defendants’ claim\n\nof error.\n\n D.\n\n The defendants next argue that the district court violated their Fifth Amendment\n\nrights by amending the indictment through the court’s instructions to the jury. According\n\nto the defendants, although the indictment alleged that the Bloods gang was the criminal\n\nenterprise underlying the RICO charge, the court instead instructed the jury that DNGS\n\nwas the alleged enterprise.\n\n We do not address the merits of this argument because the defendants invited the\n\nclaimed error. United States v. Herrera, 23 F.3d 74, 75 (4th Cir. 1994) (“[A] court can not\n\nbe asked by counsel to take a step in a case and later be convicted of error, because it has\n\ncomplied with such request.” (quoting Shields v. United States, 273 U.S. 583, 586 (1927))).\n\n\nthat there was no good cause to raise an untimely suppression motion when the defendant\ncould have with due diligence discovered the information necessary to raise the issue).\n 20\n\fAt the charging conference near the end of the trial, the defendants argued that the jury\n\nshould be instructed that the alleged enterprise was only the Bloods, and did not include\n\nDNGS. The government noted that the indictment referred to the Bloods and DNGS\n\ninterchangeably and ultimately offered, with the district court’s approval, that the exact\n\nlanguage contained in the indictment be used in the jury instructions. Nonetheless, the\n\ndefendants declined this proposed course of action and requested that the instructions\n\nnaming only DNGS be used. Thus, even if the court’s instruction was improper, the\n\ndefendants could have cured any such error but did not. 11 See United States v. Lespier, 725\n\nF.3d 437, 445–46, 449–51 (4th Cir. 2013) (holding that the invited error doctrine applies\n\nwhen the defendant opposed provision of a particular instruction and then argued on appeal\n\nthat it was error for instruction not to have been given).\n\n E.\n\n The defendants challenge the sufficiency of the evidence to convict them of the\n\nRICO conspiracy under 18 U.S.C. § 1962(d). 12 The capital defendants also argue that their\n\nfederal witness tampering convictions under 18 U.S.C. § 1512(a)(1)(C) are not supported\n\n\n 11\n The defendants do not argue that an exception to the invited error doctrine is\napplicable in this case. See United States v. Lespier, 725 F.3d 437, 450–51 (4th Cir. 2013).\n 12\n The defendants also challenge the sufficiency of the evidence underlying their\nnumerous VICAR convictions under 18 U.S.C. § 1959(a)(3), and violations of 18 U.S.C.\n§ 924(c), based on the underlying VICAR offenses. VICAR imposes criminal liability on\nan individual who commits a crime of violence “for the purpose of gaining entrance to or\nmaintaining or increasing position in an enterprise engaged in racketeering activity.” 18\nU.S.C. § 1959(a). As Section 1959(a) incorporates the same definition of “enterprise” as\nRICO, 18 U.S.C. § 1959(b), our analysis of the defendants’ challenge to the RICO\nconspiracy convictions applies equally to the VICAR and related Section 924(c)\nconvictions.\n 21\n\fby the evidence. Additionally, Halisi and Stokes challenge the sufficiency of the evidence\n\nto support their convictions for obstruction of justice under 18 U.S.C. § 1512(c)(1).\n\n We will sustain a jury’s verdict when there is substantial evidence, construed in the\n\nlight most favorable to the government, supporting the verdict. United States v. Hackley,\n\n662 F.3d 671, 678 (4th Cir. 2011). We address the defendants’ arguments in turn, setting\n\nforth additional facts as necessary to decide each argument.\n\n 1.\n\n The defendants each were convicted of conspiracy to participate in a racketeering\n\nenterprise in violation of 18 U.S.C. § 1962(d). To obtain a conviction under this statute,\n\nthe government was required to prove “that an enterprise affecting interstate commerce\n\nexisted; that each defendant knowingly and intentionally agreed with another person to\n\nconduct or participate in the affairs of the enterprise; and . . . that each defendant knowingly\n\nand willfully agreed that he or some other member of the conspiracy would commit at least\n\ntwo racketeering acts.” United States v. Mouzone, 687 F.3d 207, 218 (4th Cir. 2012)\n\n(citations and internal quotation marks omitted).\n\n a.\n\n The defendants argue that: (1) DNGS was not an “enterprise,” as the term is used in\n\nthe RICO statute; and (2) their crimes were “unplanned, disorganized, and spontaneous”\n\nand, thus, did not constitute a pattern of racketeering activity. We find no merit in either\n\nargument.\n\n The RICO statute defines the term “enterprise” as “any . . . group of individuals\n\nassociated in fact although not a legal entity.” 18 U.S.C. § 1961(4). A RICO enterprise\n\n 22\n\f“is proved by evidence of an ongoing organization, formal or informal, and by evidence\n\nthat the various associates function[ed] as a continuing unit.” United States v. Turkette,\n\n452 U.S. 576, 583 (1981). The Supreme Court has explained that an “association-in-fact\n\nenterprise” must have “at least three structural features: a purpose, relationships among\n\nthose associated with the enterprise, and longevity sufficient to permit these associates to\n\npursue the enterprise’s purpose.” Boyle v. United States, 556 U.S. 938, 946 (2009).\n\n Here, the government presented sufficient evidence from which a reasonable jury\n\ncould conclude that DNGS was an “enterprise,” within the meaning of the RICO statute.\n\nDNGS members received tattoos and wore red clothing signifying their membership in the\n\ngang, congregated regularly at membership meetings, and had a set of governing rules that\n\nmembers were expected to follow. Members shared a common function and purpose,\n\nnamely, to enrich members of the gang by “putting in work” through the commission of\n\nviolent crimes and selling drugs. DNGS members also agreed to provide, and did provide,\n\nprotection for one another. Although an “enterprise” “need not have a hierarchical\n\nstructure or chain of command,” id. at 948, the presence of such organizational features\n\nprovides additional evidence of a functioning “enterprise.” And here, the government’s\n\nevidence established that DNGS had a clearly delineated leadership structure.\n\n Although the RICO statute does not define the phrase “pattern of racketeering\n\nactivity,” see 18 U.S.C. § 1962, the statute specifies that proof of a “pattern of racketeering\n\nactivity” requires evidence of “at least two acts of racketeering activity” committed within\n\na ten-year period, 18 U.S.C. § 1961(5). The Supreme Court further has explained that to\n\nestablish a pattern of racketeering activity, the racketeering predicate acts must be related\n\n 23\n\fto each other (the “relatedness prong”), and must amount to, or pose a threat of, continued\n\ncriminal activity (the “continuity prong”). H.J. Inc. v. N.W. Bell Tel. Co., 492 U.S. 229,\n\n239 (1989) (“It is this factor of continuity plus relationship which combines to produce a\n\npattern.” (citation omitted)).\n\n At issue here is the relatedness prong of the pattern analysis. 13 Racketeering acts\n\nare related if they “have the same or similar purposes, results, participants, victims, or\n\nmethods of commission, or otherwise are interrelated by distinguishing characteristics and\n\nare not isolated events.” Id. at 240 (citation omitted). In making this determination, we\n\nemploy the “commonsense, everyday understanding” of the statutory language. Id. at 241.\n\n We conclude that the government sufficiently established a “pattern of racketeering\n\nactivity.” The government introduced evidence of twelve racketeering acts leading up to\n\nQuick’s kidnapping and murder. Various combinations of DNGS members committed\n\nthese crimes together. Those crimes shared the common purpose of enriching DNGS\n\n\n\n 13\n While the defendants have not, apart from a single conclusory statement, raised a\ncontinuity argument, we determine that the continuity prong is satisfied here. H.J. Inc.,\n492 U.S. at 241–42 (holding that the continuity prong can be met by showing that related\npredicate offenses continued over a substantial period of time or posed a threat of\ncontinuing activity). Although the predicate acts established at trial were committed over\nthe span of five months, the racketeering offenses were part of an ongoing criminal\nenterprise and were committed to enrich DNGS members and to facilitate future criminal\nacts. See id. at 242–43 (noting that “the threat of continuity is sufficiently established\nwhere the predicates can be attributed to a defendant operating as part of a long-term\nassociation that exists for criminal purposes”). DNGS also worked to protect its members\nfrom apprehension by law enforcement authorities. See United States v. Aulicino, 44 F.3d\n1102, 1111 (2d Cir. 1995) (holding that “in cases where the acts of the defendant or the\nenterprise were inherently unlawful, such as murder or obstruction of justice, and were in\npursuit of inherently unlawful goals . . . courts generally have concluded that the requisite\nthreat of continuity was adequately established”).\n 24\n\fmembers, bolstering the gang’s reputation for violence, or evading law enforcement\nauthorities. In committing these crimes, the defendants employed firearms, threats of\nphysical force, and actual physical force. The jury could conclude, based on this\nevidence, that the defendants had engaged in a “pattern of racketeering activity.”\n b.\n\n Halisi and Stokes separately argue that the government failed to prove that either of\n\nthem agreed to the commission of at least two of the charged racketeering acts. The\n\ngovernment offered evidence of three categories of racketeering acts: drug trafficking,\n\nobstruction of justice, and robbery, in violation of state and federal law. 14 Although Halisi\n\nand Stokes do not dispute that they conspired to distribute narcotics, they argue that these\n\nactivities were not related to DNGS and, thus, were not part of the RICO conspiracy. Halisi\n\nand Stokes also claim that their acts of obstruction did not constitute racketeering acts,\n\nbecause those acts occurred after the completion of the RICO conspiracy. We disagree\n\nwith these arguments.\n\n “[A] defendant can conspire to violate RICO and violate [Section] 1962(d) without\n\nhimself committing or agreeing to commit the two or more acts of racketeering activity.”\n\nMouzone, 687 F.3d at 218 (internal brackets and quotation marks omitted) (citing Salinas\n\nv. United States, 522 U.S. 52, 65 (1997)). He need only “agree to pursue the same criminal\n\nobjective” as that of the enterprise. Salinas, 522 U.S. at 63–64. This agreement is apparent\n\nfrom Halisi and Stokes’ role within DNGS. Both men were the enterprise’s founders and\n\nleaders. Both defendants had a central role in directing the enterprise, which required its\n\n\n 14\n Because we conclude that Halisi and Stokes participated in the racketeering acts\nof drug trafficking and obstruction of justice, we need not decide whether there was\nsufficient evidence to prove that they also participated in the other racketeering activities\nalleged in the indictment, including robbery.\n 25\n\fmembers to commit crimes for the gang’s welfare and support. These facts strongly\n\nsupport the jury’s conclusion that Halisi and Stokes were actively involved in the RICO\n\nconspiracy conducted by DNGS, including the robberies committed by the capital\n\ndefendants and others.\n\n Abundant evidence showed that DNGS members distributed controlled substances\n\nand discussed arrangements for expanding their drug distribution networks at DNGS\n\nmeetings. Other evidence showed that drug trafficking was done for the benefit of DNGS,\n\nand copies of DNGS-related documents introduced at trial reflected a detailed code used\n\nby DNGS members to disguise their intended language when discussing narcotics. DNGS\n\nmembers also sought to invest money obtained from robberies and theft into the gang’s\n\ndrug distribution network. Thus, the jury could conclude from the evidence that the\n\ndistribution of controlled substances was a centerpiece of the DNGS criminal enterprise.\n\n The government also produced substantial evidence that the acts of obstruction\n\ncommitted by Halisi and Stokes were done during and in furtherance of the conspiracy.\n\nHalisi and Stokes ordered the destruction of, or directly destroyed, evidence related to\n\nQuick’s murder, including Quick’s ATM card, the murder weapon, and the phones\n\nbelonging to DNGS members. Halisi and Stokes took these actions not only to “cover up”\n\nthe crimes that had been committed, but also to prolong the unlawful activities of the DNGS\n\nenterprise and to protect the DNGS members from being arrested. Accordingly, the jury\n\ncould conclude from this evidence that the obstructive acts committed by Halisi and Stokes\n\nconstituted acts of racketeering. Altomare, 625 F.2d at 8 n.9 (explaining that defendant’s\n\nattempt to obstruct was “not merely an attempt to cover up a previously completed crime,\n\n 26\n\fbut was an effort to prolong the unlawful activities of the enterprise in which he and his\n\nco-conspirators were engaged”).\n\n 2.\n\n The capital defendants argue that the evidence was insufficient to prove that they\n\nengaged in witness tampering by murder to prevent Quick from reporting a carjacking\n\noffense. In particular, they assert that their witness tampering convictions cannot stand,\n\nbecause the government failed to prove the underlying crime of carjacking. We find no\n\nmerit in this argument.\n\n The federal witness tampering statute prohibits “kill[ing] another person, with intent\n\nto . . . prevent the communication by any person to a law enforcement officer . . . of the\n\nUnited States” of “information relating to the . . . possible commission of a Federal\n\noffense.” 18 U.S.C. § 1512(a)(1)(C) (emphasis added). Section 1512 does not require that\n\nthe government prove the completion of an underlying federal offense to establish witness\n\ntampering. 15 Instead, inclusion of the word “possible” in the statutory language reflects\n\nthat a conviction under Section 1512 requires only that a witness was prevented from\n\ncommunicating to the authorities information about a possible or actual federal offense.\n\n 3.\n\n\n\n 15\n For the same reason, we reject the capital defendants’ more specific argument that\nthe government failed to adduce evidence establishing the federal nexus required by the\ncarjacking statute. See 18 U.S.C. § 2119 (prohibiting the taking of “a motor vehicle that\nhas been transported, shipped, or received in interstate or foreign commerce” (emphasis\nadded)). For the purposes of the witness tampering conviction, the government was not\nrequired to proffer evidence proving the elements of the underlying crime of carjacking,\nincluding the federal nexus requirement.\n 27\n\f Halisi and Stokes contend that the evidence was insufficient to support their\n\nconvictions for obstruction of justice under 18 U.S.C. § 1512(c)(1), which, in relevant part,\n\nprohibits a person from “corruptly . . . alter[ing], destroy[ing], mutilat[ing], or conceal[ing]\n\na record, document, or other object, or attempt[ing] to do so, with the intent to impair the\n\nobject’s integrity or availability for use in an official proceeding.” We consider their\n\nseparate arguments in turn.\n\n Halisi argues that, because he only instructed other individuals to destroy evidence\n\nand did not directly destroy any evidence himself, he did not commit the crime of\n\nobstruction of justice. 16 We disagree.\n\n Under the doctrines of vicarious liability and co-conspirator liability, a defendant is\n\nliable for the substantive offenses committed by a co-conspirator when the commission of\n\nthe acts is reasonably foreseeable and is done in furtherance of the conspiracy. United\n\nStates v. Ashley, 606 F.3d 135, 143 (4th Cir. 2010). The jury properly was instructed on\n\nboth these theories of liability. 17 The evidence at trial established that Halisi ordered\n\nCasterlow to destroy Quick’s ATM card, instructed his girlfriend to destroy his and\n\nCasterlow’s phones, and gave Stokes the disassembled murder weapon in order for Stokes\n\nto discard the component parts. Thus, the jury reasonably could determine under a theory\n\nof either vicarious or co-conspirator liability that Halisi was responsible for destroying\n\n\n\n 16\n The indictment alleged that Halisi was involved “in directing the efforts of the\nenterprise in the destruction of documents and evidence associated with” Quick’s murder.\n 17\n These theories of liability need not be charged in the indictment. See Ashley, 606\nF.3d at 143.\n 28\n\fevidence by commanding others to do so on his behalf. Accordingly, we affirm his\n\nconviction for obstruction of justice.\n\n Stokes advances a separate challenge to his conviction for obstruction of justice. He\n\nargues that: (1) his conviction is invalid because a federal grand jury had not been convened\n\nto consider the crimes charged at the time that he purportedly obstructed justice; and (2)\n\nthe government failed to prove that, at the time of his actions, he contemplated an official\n\nproceeding that was federal in nature. We reject both these arguments, which are\n\nforeclosed by the plain language of Section 1512.\n\n Section 1512(f)(1) provides, in relevant part, that “[f]or the purposes of this section\n\n. . . an official proceeding need not be pending or about to be instituted at the time of the\n\noffense.” And Section 1512(g)(1) provides that “[i]n a prosecution for an offense under\n\nthis section, no state of mind need be proved with respect to the circumstance . . . that the\n\nofficial proceeding . . . is before a judge or court of the United States, a United States\n\nmagistrate judge, . . . a Federal grand jury, or a Federal Government agency.”\n\n Despite this plain language, however, Stokes maintains that the Supreme Court’s\n\ndecision in Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), clarified that the\n\ngovernment was required to prove that Stokes contemplated a particular and foreseeable\n\nfederal grand jury or federal court proceeding. The Supreme Court held in Arthur Andersen\n\nthat certain other provisions of the witness tampering statute, Section 1512(b)(2)(A) and\n\n(B), require that the government prove a “nexus” between the defendant’s conduct and a\n\nforeseeable official proceeding. 544 U.S. at 698, 707–08. We will assume, without\n\ndeciding, that Section 1512(c)(1) imposed the same burden on the government in the\n\n 29\n\fpresent case, requiring the government to establish a “nexus” between Stokes’ obstructive\n\naction and a foreseeable official proceeding. See United States v. Young, 916 F.3d 368,\n\n386 (4th Cir. 2019) (holding that the “nexus” requirement applies to Section 1512(c)(2)).\n\nThe evidence before us easily satisfied such a requirement.\n\n Rice, who was with Stokes days after Quick’s murder, testified that Stokes received\n\na call that “the fed—the police had kicked in the door to [the DNGS members’ hotel].”\n\nStokes responded to Rice that the murder weapon was still in Casterlow’s possession, and\n\nthat Stokes was “concerned” the gun could be traced “back to the murder” and link him to\n\nthe crime. The evidence further established that Stokes later took action to dispose of the\n\nmurder weapon. The jury could conclude from this evidence that Stokes thought that his\n\nacts likely would affect a foreseeable official proceeding. See Arthur Anderson, 544 U.S.\n\nat 707.\n\n Nor was the government required to establish that Stokes contemplated an official\n\nproceeding that was federal in nature in order to secure a conviction under Section 1512(c).\n\nAs quoted above, the language of Section 1512(g)(1) plainly refutes such a contention. See\n\nUnited States v. Phillips, 583 F.3d 1261, 1264–65 (10th Cir. 2009) (holding that in a\n\nprosecution under Section 1512(c), “the government need not prove [that] the defendant\n\nknew that the official proceeding at issue was a federal proceeding such as a grand jury\n\ninvestigation”). Accordingly, we conclude that the evidence was sufficient to support\n\nStokes’ conviction for obstruction of justice under Section 1512(c)(1).\n\n F.\n\n\n\n 30\n\f The defendants next challenge a number of their convictions under 18 U.S.C. §\n\n924(c) for use of a firearm during a crime of violence. They argue that the predicate\n\noffenses underlying their Section 924(c) convictions do not qualify as crimes of violence\n\nunder the statute’s “force clause,” 18 U.S.C. § 924(c)(3)(A). With respect to the statute’s\n\n“residual clause,” id. § 924(c)(3)(B), the defendants argue that the clause is\n\nunconstitutionally vague in light of the Supreme Court’s decision in Johnson v. United\n\nStates, 135 S. Ct. 2551 (2015) (Johnson II).\n\n We review de novo the question whether an offense qualifies as a crime of violence.\n\nSee United States v. McNeal, 818 F.3d 141, 151 (4th Cir. 2016). An offense under Section\n\n924(c) arises when a defendant uses or carries a firearm during or in relation to a “crime of\n\nviolence.” 18 U.S.C. § 924(c)(1)(A). Subsection (c)(3) defines the term “crime of\n\nviolence” as a felony offense that:\n\n (A) has as an element the use, attempted use, or threatened use of physical\n force against the person or property of another, or\n\n (B) that by its nature, involves a substantial risk that physical force against\n the person or property of another may be used in the course of committing\n the offense.\n\n18 U.S.C. § 924(c)(3). We refer to Section 924(c)(3)(A) as the “force clause,” and to Section\n\n924(c)(3)(B) as the “residual clause” or the “924(c) residual clause.” United States v. Fuertes,\n\n805 F.3d 485, 498 (4th Cir. 2015).\n\n The Supreme Court recently agreed with the defendants’ argument that the 924(c)\n\nresidual clause is unconstitutionally vague. United States v. Davis, 139 S. Ct. 2319, 2336\n\n(2019). The Court held that like similarly worded residual clauses struck down in Johnson\n\n\n 31\n\fII, 135 S. Ct. at 2557, and Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018), the 924(c)\n\nresidual clause improperly required the sentencing judge’s “estimation of the degree of risk\n\nposed by a crime’s imagined ‘ordinary case.’” Davis, 139 S. Ct. at 2325-26, 2336. 18 Our\n\nanalysis therefore is limited to considering whether the defendants’ prior convictions qualify\n\nas crimes of violence under the force clause.\n\n To determine whether an offense qualifies as a crime of violence under Section\n\n924(c)(3)(A), we apply the categorical approach or the modified categorical approach,\n\ndepending on the nature of the offense. Id. The categorical approach focuses “on the\n\nelements of the prior offense rather than the conduct underlying the conviction.” United\n\nStates v. Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir. 2013) (citation omitted). Thus,\n\nwe do not inquire “whether the defendant’s conduct could support a conviction for a crime\n\nof violence” but instead inquire “whether the defendant was in fact convicted of a crime\n\nthat qualifies as a crime of violence.” Id.\n\n In a “narrow range of cases,” involving statutes that are comprised of “multiple,\n\nalternative versions of the crime,” we apply the modified categorical approach. Descamps\n\nv. United States, 570 U.S. 254, 261–62 (2013) (citing Taylor v. United States, 495 U.S.\n\n575, 602 (1990)). When confronted with such a “divisible” statute, we review certain\n\nunderlying documents, including the indictment, “to determine what crime, with what\n\n\n 18\n The Supreme Court rejected the government’s argument that unlike the residual\nclauses at issue in Johnson II and Dimaya, the 924(c) residual clause permits a case-specific\napproach allowing consideration of the defendant’s actual conduct in the predicate crime,\nrather than the crime in the “ordinary” sense. Davis, 139 S. Ct. at 2327−33. The Court\nreasoned that the statutory language and historical context of the 924(c) residual clause did\nnot permit a “case-specific reading.” Id.\n 32\n\felements,” formed the basis of a defendant’s conviction. Mathis v. United States, 136 S.\n\nCt. 2243, 2249 (2016) (citations omitted).\n\n With this framework in mind, we turn to consider each predicate offense underlying\n\nthe defendants’ Section 924(c) convictions. These predicate offenses are: (1) VICAR in\n\nviolation of 18 U.S.C. § 1959 by committing murder in violation of Virginia law, Virginia\n\nCode § 18.2-32; (2) witness tampering by means of murder in violation of 18 U.S.C. §\n\n1512(a); (3) Hobbs Act robbery in violation of 18 U.S.C. § 1951(a); and (4) VICAR by\n\ncommitting kidnapping in violation of Virginia law, Virginia Code § 18.2-47.\n\n 1.\n\n We begin by addressing whether the capital defendants’ Section 924(c) convictions,\n\nwhich involve (1) commission of VICAR by committing first-degree murder under\n\nVirginia law 19 and (2) federal witness tampering by means of murder under federal law,\n\nqualify as crimes of violence under the force clause. The capital defendants contend that\n\nVirginia’s definition of first-degree murder, 20 prohibited under Virginia Code § 18.2-32,\n\ndoes not require the use or threatened use of force against another, because a defendant can\n\nviolate the statute by using non-violent, indirect means, such as “poison[ing]” a victim.\n\n\n\n 19\n Neither party contests the applicability of the categorical approach to the VICAR-\nmurder, agreeing that Virginia’s murder statute is indivisible.\n 20\n Virginia Code § 18.2-32 specifies “[a]ll murder other than capital murder and\nmurder in the first degree is murder of the second degree.” Although the indictment did\nnot specify whether the VICAR conviction was predicated on a first-degree or second-\ndegree murder, the district court instructed the jury on first-degree murder. The parties do\nnot dispute that the capital defendants’ VICAR convictions stem from commission of first-\ndegree murder under Virginia law.\n 33\n\fAdvancing the same rationale, the capital defendants also assert that federal witness\n\ntampering by murder, under 18 U.S.C. § 1512(a)(1)(C), is not categorically a crime of\n\nviolence.\n\n This line of reasoning, however, is foreclosed by the Supreme Court’s decision in\n\nUnited States v. Castleman, in which the Court held that “physical force is simply force\n\nexerted by and through” human action and that, therefore, a person need not “directly”\n\ntouch his victim to exert “physical force.” 572 U.S. 157, 170−71 (2014) (citations and\n\ninternal quotation marks omitted). Accordingly, so long as an offender’s use of physical\n\nforce, whether direct or indirect, could cause a violent result, the force used categorically\n\nis violent. See id. at 1415; see also In re Irby, 858 F.3d 231, 236, 238 (4th Cir. 2017)\n\n(holding that second-degree retaliatory murder is a crime of violence under Section\n\n924(c)’s force clause and noting that the “distinction . . . between indirect and direct\n\napplications of force . . . no longer remains valid in light of Castleman’s explicit rejection\n\nof such a distinction”) (citations and internal quotation marks omitted).\n\n A conviction for first-degree murder under Virginia law requires the “willful,\n\ndeliberate, and premeditated” killing of another. Va. Code § 18.2-32. Murder “requires\n\nthe use of force capable of causing physical pain or injury to another person” irrespective\n\nwhether that force is exerted directly or indirectly by a defendant. See In re Irby, 858 F.3d\n\nat 236, 238. Therefore, we conclude that the crime of first-degree murder under Virginia\n\nlaw qualifies categorically as a crime of violence under the force clause, and we affirm the\n\ncapital defendants’ Section 924(c) convictions that are based on the commission of this\n\nVirginia offense.\n\n 34\n\f Likewise, because federal witness tampering by murder also requires the unlawful\n\nkilling of another, which may be accomplished by force exerted either directly or indirectly,\n\nwe find no merit in the capital defendants’ challenge to their federal witness tampering\n\nconvictions under 18 U.S.C. § 1512(a)(1)(C). 21 See In re Irby, 858 F.3d at 236.\n\nAccordingly, we affirm the Section 924(c) convictions predicated on the capital\n\ndefendants’ convictions for federal witness tampering by murder, in violation of Section\n\n1512(a)(1)(C).\n\n 2.\n\n We next consider the defendants’ argument that their Section 924(c) convictions\n\nbased on Hobbs Act robbery do not qualify as crimes of violence. 22 The defendants argue\n\nthat because Hobbs Act robbery can be committed by placing a victim in fear of injury, the\n\noffense does not necessarily include as an element the “use, attempted use, or threatened\n\n\n\n\n 21\n Because this offense can be committed in various ways, the statute is divisible.\nSee Descamps, 570 U.S. at 262. However, we need not apply the modified categorical\napproach here, because the parties agree and the record establishes that the capital\ndefendants were convicted of witness tampering by means of murder under Section\n1512(a)(1)(C). See United States v. Carthorne, 726 F.3d 503, 512 (4th Cir. 2013).\n 22\n The defendants convicted of Hobbs Act robbery and the related Section 924(c)\ncharge are Shantai, Mersadies, and Mathis.\n 35\n\fuse of force,” as required by the force clause. The defendants also contend that because\n\nHobbs Act robbery may be accomplished by threatening another with injury to intangible\n\nproperty, such as shares of stock in a corporation, Hobbs Act robbery does not qualify as a\n\ncrime of violence under the force clause. We disagree with both arguments. 23\n\n The Hobbs Act penalizes a person who “in any way or degree obstructs, delays, or\n\naffects commerce . . . by robbery or extortion or attempts or conspires so to do, or commits\n\nor threatens physical violence to any person or property in furtherance of a plan or purpose\n\nto do anything in violation of this section.” 18 U.S.C. § 1951. “Robbery” is defined, in\n\nrelevant part, as the taking of personal property from another “by means of actual or\n\nthreatened force, or violence, or fear of injury, immediate or future, to his person or\n\nproperty.” Id. § 1951(b)(1) (emphasis added).\n\n The question whether Hobbs Act robbery, when committed by means of causing\n\nfear of injury, qualifies as a crime of violence is guided by our decision in McNeal, 818\n\nF.3d 141. In McNeal, we held that the crime of federal bank robbery, which may be\n\ncommitted by “force and violence, or by intimidation,” 18 U.S.C. § 2113(a) (emphasis\n\nadded), qualifies as a crime of violence under the force clause. 818 F.3d at 152–53. We\n\nexplained that the use of intimidation, as proscribed by the bank robbery statute, necessarily\n\n“involves the threat to use [physical] force.” Id. at 153. Although the bank robbery statute,\n\n\n\n 23\n The Hobbs Act is a divisible statute that prescribes two alternative methods of\nviolating the Hobbs Act, namely, robbery and extortion. 18 U.S.C. § 1952(b)(1), (2). As\nbefore, however, we need not apply the modified categorical approach here, because the\nparties do not dispute and the record supports that the defendants were charged with and\nconvicted of Hobbs Act robbery. See Carthorne, 726 F.3d at 512.\n 36\n\fSection 2113, refers to use of “intimidation,” rather than “fear of injury,” we see no material\n\ndifference between the two terms for purposes of determining whether a particular type of\n\nrobbery qualifies as a crime of violence. Nor are we aware of any case in which a court\n\nhas interpreted the phrase “fear of injury” as meaning anything other than intimidation.\n\n We also observe that both Section 924(c) and Hobbs Act robbery reference the use\n\nof force or threatened use of force against “property” generally, without further defining\n\nthe term “property.” Compare 18 U.S.C. § 924(c)(3)(A) (defining a “crime of violence”\n\nas having “as an element the use, attempted use, or threatened use of physical force against\n\n. . . property of another”), with 18 U.S.C. § 1951 (defining “robbery” as a taking “by means\n\nof actual or threatened force, or violence, or fear of injury, immediate or future, to his . . .\n\nproperty”). And neither provision draws any distinction between tangible and intangible\n\nproperty. Thus, we do not discern any basis in the text of either statutory provision for\n\ncreating a distinction between threats of injury to tangible and intangible property for\n\npurposes of defining a crime of violence. Accordingly, we conclude that Hobbs Act\n\nrobbery constitutes a crime of violence under the force clause of Section 924(c). 24 See\n\nUnited States v. Garcia-Ortiz, 904 F.3d 102, 109 (1st Cir. 2018); United States v. Hill, 890\n\n\n\n\n 24\n The defendants offer two additional arguments in support of their contention that\nHobbs Act robbery is not a crime of violence. The defendants first assert that a threat of\ninjury does not require the threat of violent force, such as when a perpetrator threatens\nanother’s property by throwing paint on someone’s house. The defendants also assert that\nbecause Hobbs Act robbery is akin to common law robbery, Hobbs Act robbery does not\ncontain the required force element. After reviewing these arguments, we conclude that\nneither has merit.\n\n 37\n\fF.3d 51, 60 (2d Cir. 2018); United States v. Rivera, 847 F.3d 847, 849 (7th Cir. 2017); In\n\nre Fleur, 824 F.3d 1337, 1340–41 (11th Cir. 2016).\n\n 3.\n\n Finally, the capital defendants challenge their Section 924(c) convictions predicated\n\non their VICAR convictions for kidnapping under Virginia law. They argue that because\n\nkidnapping under Virginia law can be committed by deception, the offense is not\n\ncategorically a crime of violence under the force clause. See Va. Code § 18.2-47(A). 25 We\n\nagree.\n\n Virginia’s kidnapping statute generally prohibits an individual from seizing or\n\ntaking another person “by force, intimidation, or deception” with the intent to deprive that\n\nperson of his or her liberty. Va. Code § 18.2-47(A). Although the statute describes various\n\nways that an individual may commit the act of kidnapping, namely, by force, intimidation,\n\nor deception, these alternatives represent various means of committing the crime, not\n\nalternative elements of the crime. See Fuertes, 805 F.3d at 498 (“[A]lthough § 1591(a)\n\nrefers to alternative means of commission, it contains a single, indivisible set of elements,\n\nand the categorical approach applies.”). Accordingly, we conclude that Virginia Code §\n\n18.2-47(A) is indivisible, requiring application of the categorical approach. See id.\n\n\n\n 25\n The capital defendants also assert that kidnapping under Virginia law does not\nqualify as a crime of violence under the 924(c) residual clause, because that clause is\nunconstitutional in light of the Supreme Court’s holding in Johnson II, 135 S. Ct. 2551.\nAs we explained above, the Supreme Court recently has concluded that the 924(c) residual\nclause is unconstitutionally vague. Davis, 139 S. Ct. at 2336. Accordingly, our\ndetermination explained below, that kidnapping under Virginia law does not qualify as a\ncrime of violence offense under the force clause, is dispositive.\n 38\n\f A review of the statute’s language and the decisions by Virginia’s appellate courts\n\ninterpreting that language indicates that the offense may be committed in a non-violent\n\nmanner through deceptive means. 26 Va. Code § 18.2-47; Jerman v. Dir. of the Dep’t of\n\nCorrs., 593 S.E.2d 255, 259 (Va. 2004) (affirming a kidnapping conviction when the\n\nevidence proved that one of the defendant’s confederates convinced the victim to come\n\nwith her under the ruse of selling illegal narcotics when the defendant’s true intent was to\n\nharm the victim); Kent v. Commonwealth, 183 S.E. 177, 177–78 (Va. 1936) (affirming a\n\nconviction for kidnapping committed by fraud and coercion and without the use of force\n\nor restraint). Because Virginia defines kidnapping in a manner that allows for both violent\n\nand nonviolent means of committing the offense, the statute “sweep[s] more broadly” than\n\nthe force clause’s requirement that the offense be committed with the use, or attempted or\n\nthreatened use, of physical force. See Descamps, 570 U.S. at 261; 18 U.S.C. §\n\n924(c)(3)(A). Thus, we conclude that kidnapping under Virginia law does not qualify\n\ncategorically as a crime of violence under the force clause. We therefore vacate the capital\n\ndefendants’ Section 924(c) convictions stemming from the commission of VICAR based\n\non kidnapping under Virginia law.\n\n G.\n\n\n\n\n 26\n To determine if a state conviction qualifies as a crime of violence, we look to the\nlanguage of the statute as well as decisions by the state’s courts. See United States v.\nDoctor, 842 F.3d 306, 312 (4th Cir. 2016).\n 39\n\f Finally, the capital defendants argue that the fines imposed on each of them should\n\nbe vacated as substantively unreasonable. 27 We disagree.\n\n We review the substantive reasonableness of any part of a sentence for abuse of\n\ndiscretion. Gall v. United States, 552 U.S. 38, 51 (2007). After considering the factors\n\noutlined in Sentencing Guidelines Section 5E1.2(d) and concluding that a fine was\n\nwarranted, the district court imposed on each defendant a $5,000 fine, a sum well below\n\nthe advisory guidelines range. 28 See U.S.S.G. § 5E1.2. The defendants have not offered\n\nany evidence rebutting the presumption of reasonableness that we apply to the district\n\ncourt’s below-Guidelines imposition of fines. United States v. Perez-Jiminez, 654 F.3d\n\n1136, 1146–47 (10th Cir. 2011). Therefore, we hold that the court did not abuse its\n\ndiscretion in imposing those fines in this case.\n\n\n\n III.\n\n For these reasons, we affirm in part the district court’s judgment, vacate the capital\n\ndefendants’ Section 924(c) convictions predicated on their VICAR convictions for\n\nkidnapping under Virginia law, and remand for resentencing of those capital defendants,\n\nnamely, Mathis, Shantai, Mersadies, and Kweli.\n\n\n 27\n The defendants do not challenge the assessment of their fines as procedurally\nunreasonable.\n 28\n Kweli is the only capital defendant whose sentencing transcript was included in\nthe record before this Court. Because the defendants have not raised an objection to the\ncompleteness of the record, our analysis of the substantive reasonableness of the fines\nassessed against each defendant stems from our review of Kweli’s sentencing transcript\nonly.\n 40\n\f AFFIRMED IN PART,\n VACATED IN PART,\n AND REMANDED\n\n\n\n\n41\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Daniel Lamont MATHIS, A/K/A Gunna, A/K/A Mooch, A/K/A D-Man, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Mersadies Lachelle Shelton, A/K/A Lady Gunns, A/K/A Maisha Love Uhuru, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Shantai Monique Shelton, A/K/A Tai, A/K/A Lady Blaze, A/K/A Boss Lady, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Kweli Uhuru, A/K/A Travis Leon Bell, A/K/A K. Gunns, A/K/A Black Wolf, A/K/A Babi, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Anthony Darnell Stokes, A/K/A Face, A/K/A Black Face, A/K/A Kenyata Baraka, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Halisi Uhuru, A/K/A Arthur Lee Gert Wright, A/K/A Gritty, A/K/A Bones, A/K/A Big Homey, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Fourth Circuit\\nDate decided: 2019-07-31\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nPUBLISHED\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE FOURTH CIRCUIT\\n\\n\\n No. 16-4633\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nDANIEL LAMONT MATHIS, a/k/a Gunna, a/k/a Mooch, a/k/a D-Man,\\n\\n Defendant - Appellant.\\n\\n\\n No. 16-4635\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nMERSADIES LACHELLE SHELTON, a/k/a Lady Gunns, a/k/a Maisha Love\\nUhuru,\\n\\n Defendant - Appellant.\\n\\n\\n No. 16-4637\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\fSHANTAI MONIQUE SHELTON, a/k/a Tai, a/k/a Lady Blaze, a/k/a Boss Lady,\\n\\n Defendant - Appellant.\\n\\n\\n No. 16-4641\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nKWELI UHURU, a/k/a Travis Leon Bell, a/k/a K. Gunns, a/k/a Black Wolf, a/k/a\\nBabi,\\n\\n Defendant - Appellant.\\n\\n\\n No. 16-4837\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v.\\n\\nANTHONY DARNELL STOKES, a/k/a Face, a/k/a Black Face, a/k/a Kenyata\\nBaraka,\\n\\n Defendant - Appellant.\\n\\n\\n No. 16-4838\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n\\n 2\\n\\f v.\\n\\nHALISI UHURU, a/k/a Arthur Lee Gert Wright, a/k/a Gritty, a/k/a Bones, a/k/a Big\\nHomey,\\n\\n Defendant - Appellant.\\n\\n\\nAppeals from the United States District Court for the Western District of Virginia, at\\nCharlottesville. Glen E. Conrad, District Judge. (3:14-cr-00016-GEC-JCH-1; 3:14-cr-\\n00016-GEC-JCH-2; 3:14-cr-00016-GEC-JCH-3; 3:14-cr-00016-GEC-JCH-4; 3:14-cr-\\n00016-GEC-JCH-6; 3:14-cr-00016-GEC-JCH-7)\\n\\n\\nArgued: January 24, 2018 Decided: July 31, 2019\\n\\n\\nBefore KEENAN and DIAZ, Circuit Judges, and DUNCAN, Senior Circuit Judge.\\n\\n\\nAffirmed in part, vacated in part, and remanded by published opinion. Judge Keenan wrote\\nthe opinion, in which Judge Diaz and Senior Judge Duncan joined.\\n\\n\\nARGUED: Frederick T. Heblich, Jr., OFFICE OF THE FEDERAL PUBLIC\\nDEFENDER, Charlottesville, Virginia, for Appellant Daniel Lamont Mathis. Paul Graham\\nBeers, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke, Virginia, for\\nAppellant Anthony Darnell Stokes. Christopher R. Kavanaugh, OFFICE OF THE\\nUNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF:\\nLarry W. Shelton, Federal Public Defender, Roanoke, Virginia, Geremy C. Kamens,\\nFederal Public Defender, Alexandria, Virginia, Paul G. Gill, Assistant Federal Public\\nDefender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia;\\nAaron Lee Cook, Harrisonburg, Virginia; David Anthony Eustis, Charlottesville, Virginia;\\nRhonda E. Quagliana, Charlottesville, Virginia; Michael T. Hemenway, Charlottesville,\\nVirginia; Sherwin John Jacobs, Harrisonburg, Virginia, for Appellants. Rick A.\\nMountcastle, Acting United States Attorney, Roanoke, Virginia, Ronald M. Huber,\\nAssistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,\\nCharlottesville, Virginia, for Appellee.\\n\\n\\n\\n\\n 3\\n\\fBARBARA MILANO KEENAN, Circuit Judge:\\n\\n This case involves the prosecution of several members of a violent street gang\\n\\nknown as the Double Nine Goon Syndikate (DNGS). After a multi-week trial, a jury\\n\\nconvicted Halisi Uhuru (Halisi), Anthony Stokes (Stokes), Kweli Uhuru (Kweli),\\n\\nMersadies Shelton (Mersadies), Shantai Shelton (Shantai), and Daniel Mathis (Mathis)\\n\\n(collectively, the defendants) of conspiracy to violate the Racketeer Influenced and Corrupt\\n\\nOrganizations Act (RICO), 18 U.S.C. § 1962(d), based on their activities related to the\\n\\ngang.\\n\\n Mathis, Shantai, Mersadies, and Kweli (collectively, the capital defendants) also\\n\\nwere convicted, in relation to the murder of an off-duty police officer, of violent crimes in\\n\\naid of racketeering activity in violation of 18 U.S.C. § 1959 (VICAR) by committing\\n\\nkidnapping and murder under Virginia law, as well as witness tampering by means of\\n\\nmurder in violation of 18 U.S.C. § 1512(a). The capital defendants were sentenced to serve\\n\\nterms of life imprisonment. Halisi and Stokes additionally were convicted of obstruction\\n\\nof justice in violation of 18 U.S.C. § 1512(c)(1). 1\\n\\n On appeal, the defendants raise several challenges concerning their trial and\\n\\nsentences. Upon our review of these arguments, we vacate in part with respect to the capital\\n\\ndefendants’ convictions that are predicated on commission of kidnapping under Virginia\\n\\n\\n\\n 1\\n The other crimes of conviction include Hobbs Act robberies in violation of 18\\nU.S.C. § 1951(a), VICAR offenses in violation of 18 U.S.C. § 1959, and various\\nconvictions for the use or carry of a firearm during and in relation to a violent crime in\\nviolation of 18 U.S.C. § 924(c).\\n\\n 4\\n\\flaw. Accordingly, we also remand the capital defendants’ convictions for resentencing.\\n\\nWe affirm the balance of the district court’s judgments.\\n\\n\\n\\n I.\\n\\n The Bloods is a nationwide street gang. 2 Groups of Bloods are organized into “sets”\\n\\nor smaller, individual groups of Bloods. One of these sets, DNGS, was founded by Halisi,\\n\\nStokes, and Kweli in 2013 during their incarceration for crimes unrelated to the present\\n\\ncase.\\n\\n DNGS operates through a hierarchical structure. Halisi served as “high OG” or\\n\\n“Double OG,” DNGS’s leader. Stokes was second in command as “low [OG].” Kweli\\n\\nalso held a leadership role with the rank of “OG,” “Big Homey,” or a “Low 020.” Another\\n\\nDNGS leader was responsible for operations conducted by incarcerated DNGS members.\\n\\nThese four individuals composed DNGS’s “Roundtable,” or leadership council. Reporting\\n\\nto the council were members organized by rank, including sergeant, lieutenant, and major.\\n\\nNew DNGS members held the title of “soldier.”\\n\\n Upon gaining membership into the gang, members were given notebooks to study\\n\\nthat included the rules and the history of the Bloods gang and the DNGS set. Gang\\n\\nmembers communicated using certain codes and phrases in an effort to ensure that their\\n\\ncommunications remained incomprehensible to law enforcement authorities and others.\\n\\n\\n\\n\\n 2\\n We set forth the facts in the light most favorable to the government, the prevailing\\nparty at trial. Evans v. United States, 504 U.S. 255, 257 (1996).\\n 5\\n\\fMembers outwardly reflected their association with the Bloods and DNGS by wearing red\\n\\nclothing items, including red bandanas, and by obtaining tattoos reflecting gang insignia.\\n\\n DNGS financed itself through the proceeds of various illegal activities undertaken\\n\\nby members, including armed robberies, home invasions, and burglaries. Members were\\n\\nexpected to “put in work” to advance their rank in the gang, that is, to commit crimes in\\n\\norder to show their commitment and loyalty. If a member refused to “put in work,” that\\n\\nmember likely would have been “violated,” or beaten.\\n\\n Both while imprisoned and after their release, Stokes, Kweli, and Halisi began\\n\\nrecruiting new members to the newly formed DNGS set, including Shantai, Mersadies, and\\n\\nMathis. As the gang’s membership grew, DNGS members “put in work” committing a\\n\\nseries of crimes from late 2013 into early 2014. This spree of illegal activities included a\\n\\nnumber of armed robberies of convenience stores, home invasions, burglaries, and other\\n\\ncrimes committed in central Virginia.\\n\\n On the night of January 31, 2014, the capital defendants attacked Kevin Quick\\n\\n(Quick), an off-duty reserve captain with the Waynesboro, Virginia, Police Department, as\\n\\nhe was departing his vehicle. The four defendants compelled Quick back into his vehicle\\n\\nat gunpoint, drove him to a nearby ATM, and forced him to withdraw money from his\\n\\naccount. After learning that Quick was a police officer, and realizing that Quick had\\n\\n“already seen their face[s],” the capital defendants decided that “it was too late . . . to let\\n\\n[Quick] go.” They drove Quick to a remote area off the main roadway, removed Quick\\n\\n\\n\\n\\n 6\\n\\ffrom the car, and fired a single shot into Quick’s head, killing him and leaving his body\\n\\nbehind. 3\\n\\n The next day, the capital defendants met with Halisi and Stokes in Manassas,\\n\\nVirginia. The defendants rented two hotel rooms to host a “B-House,” or a meeting of\\n\\nDNGS members. Throughout that day, the defendants and other DNGS members\\n\\ndiscussed potential drug trafficking plans and engaged with other drug dealers in\\n\\ntransactions involving the distribution of quantities of drugs, including crack cocaine.\\n\\n The capital defendants left the hotel the next morning and drove in Quick’s vehicle\\n\\nto Front Royal, Virginia. Concerned that the vehicle could link them to the murder, the\\n\\ncapital defendants bought bleach, rubber gloves, and a jug to hold gasoline for setting the\\n\\nvehicle on fire. Leaving Kweli behind, Mathis, Shantai, and Mersadies drove the vehicle\\n\\nto a friend’s house where they cleaned the vehicle with bleach.\\n\\n Later that day, Mathis and Mersadies committed a robbery. During the robbery,\\n\\nMathis fired one shot from his pistol. Investigators later recovered a bullet and a cartridge\\n\\nfrom the scene of this robbery and matched these items through forensic testing to the\\n\\nweapon used in Quick’s murder and a previous robbery.\\n\\n Mathis and Mersadies quickly left the scene of the robbery in Quick’s vehicle,\\n\\nwhich malfunctioned shortly thereafter. They pushed the disabled vehicle to a nearby\\n\\ndriveway and doused the vehicle with additional bleach. After receiving a call from\\n\\nMersadies asking for help, Halisi and Stokes decided that Stokes would drive to meet\\n\\n\\n\\n 3\\n The record does not show which of the capital defendants fired the fatal shot.\\n 7\\n\\fMersadies and Mathis, as well as Shantai, who had reunited with Mersadies and Mathis.\\n\\nOnce Stokes reached the group, Mathis and Shantai told him that Quick’s vehicle needed\\n\\nto be destroyed, but Stokes stated that they would “find a way to get rid of it the next day.”\\n\\n Stokes and Halisi later obtained a hotel room in which Mersadies, Mathis, and\\n\\nShantai could “hide out.” 4 As Quick’s disappearance became publicized, Mersadies,\\n\\nMathis, and Shantai discussed absconding to Montana to avoid being arrested. Mersadies\\n\\ninformed Kweli of these discussions through frequent text messages.\\n\\n While Kweli was attempting to have Quick’s vehicle destroyed, law enforcement\\n\\nofficers located the abandoned vehicle. Evidence technicians recovered the following\\n\\nevidence from the vehicle: Kweli’s fingerprint on Quick’s driver’s license, which was\\n\\nfound in Quick’s wallet inside the vehicle; fingerprints belonging to Mathis, Shantai, and\\n\\nMersadies on the vehicle or on items within the vehicle; Mersadies’ DNA on a piece of\\n\\nchewing gum left in the vehicle’s ashtray; and Mathis’ DNA on rubber gloves left in the\\n\\nvehicle.\\n\\n Once news media reported that Quick’s vehicle had been recovered, the defendants\\n\\nplanned their escape to Montana and destroyed other evidence related to their crimes.\\n\\nHalisi ordered Leslie Casterlow (Casterlow), who frequently acted as a drug courier for\\n\\nDNGS, to “get rid of” Quick’s ATM card. Kweli ordered the other defendants to delete\\n\\nany incriminating text messages. Also, Shantai and one other DNGS member\\n\\ndisassembled the gun used to kill Quick and placed the gun components in a pillowcase.\\n\\n\\n 4\\n At this time, the defendants were spread out over various locations in Northern\\nVirginia.\\n 8\\n\\f A day after Quick’s vehicle was recovered, Mathis, Shantai, and Mersadies were\\n\\narrested at the hotel. After hearing news of the arrest, Halisi had his girlfriend destroy both\\n\\nhis and Casterlow’s phones. Casterlow, who still had possession of the murder weapon\\n\\nparts, hid those items behind a dumpster at their hotel.\\n\\n During this time, Stokes was traveling to Washington, D.C. and Maryland to\\n\\npurchase narcotics with an associate, Jamar Rice (Rice), who later became a government\\n\\nwitness. After receiving information from an unidentified caller that law enforcement had\\n\\nraided the hotel 5 to which Stokes was returning after his trip with Rice, Stokes told Rice\\n\\nthat his “homies” had carjacked and killed a police officer, and had left his body in the\\n\\nwoods.\\n\\n Stokes returned to Virginia to pick up Halisi, Halisi’s girlfriend, and Casterlow.\\n\\nStokes told Casterlow to retrieve the murder weapon components from behind the\\n\\ndumpster and to drive the group to a nearby interstate highway. As Casterlow drove along\\n\\nthe highway, Stokes threw the murder weapon parts over the wall bordering the road.\\n\\nThereafter, Halisi, Stokes, and Casterlow were arrested at the hotel. Law enforcement\\n\\nofficers later recovered the weapon parts with Casterlow’s assistance.\\n\\n The defendants were charged in a 36-count indictment with conspiring to participate\\n\\nin a racketeering enterprise that included the commission of assaults, robberies, burglaries,\\n\\nkidnapping, carjacking, murder, drug trafficking, and obstruction of justice. After the jury\\n\\nwas sworn during the first trial, the district court was informed that Kweli had removed\\n\\n\\n\\n 5\\n During this raid, law enforcement officers arrested Mathis, Mersadies, and Shantai.\\n 9\\n\\ffrom the courtroom a jury list containing identifying information about the jury panel\\n\\nmembers and their families. The district court thereafter granted the defendants’ motion\\n\\nfor a mistrial.\\n\\n A second trial was held in the Roanoke Division of the Western District of Virginia\\n\\nfollowing a request by some of the defendants to change venue. The district court also\\n\\ngranted the government’s request to empanel an anonymous jury. At the close of the\\n\\nsecond trial, a jury found the defendants guilty on all counts. The district court later\\n\\nsentenced the capital defendants each to serve a term of life imprisonment. Halisi and\\n\\nStokes received sentences of 144 and 160 months’ imprisonment, respectively. Several\\n\\nother sentences were imposed on the various defendants. This appeal followed.\\n\\n\\n\\n II.\\n\\n A.\\n\\n The defendants first argue that the district court committed reversible error in\\n\\ndeciding to empanel an anonymous jury. According to the defendants, there was no\\n\\nevidence supporting the district court’s finding that the defendants had the capacity to harm\\n\\nor to intimidate the jurors.\\n\\n We review a district court’s decision to empanel an anonymous jury for abuse of\\n\\ndiscretion. United States v. Dinkins, 691 F.3d 358, 371 (4th Cir. 2012). In a capital case,\\n\\na district court may empanel an anonymous jury only after determining “by a\\n\\npreponderance of the evidence that providing the [juror] list . . . may jeopardize the life or\\n\\nsafety of any person.” Id. at 372 (citing 18 U.S.C. § 3432). We choose to apply this strict\\n\\n 10\\n\\fstandard to both the capital defendants and the non-capital defendants, because the test is\\n\\nsatisfied for both groups.\\n\\n A district court must base its decision to empanel an anonymous jury on evidence\\n\\nin the record, rather than solely on the allegations in the indictment. Id. at 373. Use of an\\n\\nanonymous jury is appropriate “only in rare circumstances when two conditions are met:\\n\\n(1) there is strong reason to conclude that the jury needs protection from interference or\\n\\nharm, or that the integrity of the jury’s function will be compromised absent anonymity;\\n\\nand (2) reasonable safeguards have been adopted to minimize the risk that the rights of the\\n\\naccused will be infringed.” Id. at 372 (citations omitted).\\n\\n To determine whether there are “strong reason[s]” for empaneling an anonymous\\n\\njury, we consider five factors:\\n\\n (1) the defendant’s involvement in organized crime, (2) the defendant’s\\n participation in a group with the capacity to harm jurors, (3) the defendant’s\\n past attempts to interfere with the judicial process, (4) the potential that, if\\n convicted, the defendant will suffer a lengthy incarceration and substantial\\n monetary penalties, and (5) extensive publicity that could enhance the\\n possibility that jurors’ names would become public and expose them to\\n intimidation or harassment.\\n\\nId. at 373 (citing United States v. Ross, 33 F.3d 1507, 1520 (11th Cir. 1994)). These factors\\n\\nare not exhaustive but are meant to provide guidance in the district court’s fact-specific\\n\\ninquiry. Id.\\n\\n In the present case, during the first trial, the district court raised the question whether\\n\\nuse of an anonymous jury would be appropriate. When the defendants stated their\\n\\nopposition, the court took no further action. However, as noted above, the court later\\n\\nreceived information that Kweli had removed the jury panel list containing the members’\\n\\n 11\\n\\fpersonal information and had kept the list overnight in the jail. After the court informed\\n\\nthe jury members that the jury list had been retained by a defendant overnight, some of the\\n\\ndefendants moved for a mistrial, which the court granted.\\n\\n In view of these events, the government filed a motion at the beginning of the second\\n\\ntrial requesting an anonymous jury. The district court granted the government’s motion.\\n\\n Applying the standards outlined in Dinkins and reviewing the district court’s\\n\\nreasoning, we conclude for several reasons that the district court did not abuse its discretion\\n\\nin having the case heard by an anonymous jury. First, the indictment alleged that the\\n\\ndefendants were members of a violent street gang and were involved in a number of violent\\n\\ncriminal offenses, including witness tampering by murder. The record contained sworn\\n\\nstatements by various cooperating witnesses and DNGS members corroborating these\\n\\nallegations. This evidence strongly suggested that the defendants had associates who were\\n\\nnot incarcerated and could intimidate or harm the jurors. See Ross, 33 F.3d at 1520.\\n\\n Second, FBI special agent Scott Cullins expressed to the court concerns about juror\\n\\nsafety given the gang’s “history of not only retribution, but also preventative actions.”\\n\\nMoreover, Deputy United States Marshal Mark Haley informed the court that at least two\\n\\ndefendants, Kweli and Halisi, had continued their DNGS recruitment efforts from jail while\\n\\nawaiting trial. The circumstances leading to the mistrial thus more than justified the court’s\\n\\nconcern for juror safety. And third, if convicted, several of the defendants faced lengthy\\n\\nincarceration and substantial penalties that may have induced them to intimidate the jury\\n\\nin an attempt to influence the outcome of the trial. See id. at 1520–21.\\n\\n\\n\\n 12\\n\\f We also observe that the district court adopted reasonable safeguards to minimize\\n\\nthe risk that the defendants’ constitutional rights would be infringed by the use of an\\n\\nanonymous jury. Dinkins, 691 F.3d at 378. The court provided the venire members with\\n\\na neutral, non-prejudicial explanation of its decision that minimized the danger of prejudice\\n\\nto the defendants. See United States v. Hager, 721 F.3d 167, 188 (4th Cir. 2013). And the\\n\\ncourt’s decision did not interfere with the defendants’ ability to conduct a thorough voir\\n\\ndire examination. Counsel were given full access to all juror information, and the\\n\\ndefendants were permitted to review redacted juror questionnaires. Accordingly, upon our\\n\\nconsideration of all the facts and circumstances before the district court, we hold that the\\n\\ncourt’s decision to empanel an anonymous jury was supported by a preponderance of the\\n\\nevidence and, thus, was not an abuse of discretion.\\n\\n B.\\n\\n Before the jury heard evidence in the case, the court considered pretrial motions\\n\\nseeking the admission of a number of inculpatory co-conspirator statements. The court\\n\\nultimately overruled the defendants’ objections and received the statements into evidence\\n\\nduring the trial. The defendants argue that the district court erred in admitting three of\\n\\nthese statements, because they were not made in furtherance of the charged RICO\\n\\nconspiracy, and their admission violated the defendants’ rights under the Confrontation\\n\\nClause as detailed in Crawford v. Washington, 541 U.S. 36 (2004). We disagree with the\\n\\ndefendants’ arguments.\\n\\n 1.\\n\\n\\n\\n 13\\n\\f We review the district court’s decision to admit co-conspirator statements for abuse\\n\\nof discretion. United States v. Graham, 711 F.3d 445, 453 (4th Cir. 2013). To introduce\\n\\na co-conspirator’s statements under Federal Rule of Evidence 801(d)(2)(E), the\\n\\ngovernment was required to show by a preponderance of the evidence that (1) a conspiracy\\n\\nexisted, (2) the conspiracy included both the declarants and the defendants against whom\\n\\nthe statements were offered, and (3) the statements were made during the course of and in\\n\\nfurtherance of the conspiracy. Bourjaily v. United States, 483 U.S. 171, 175 (1987).\\n\\n The government proffered that it would establish that the statements were made\\n\\nduring and in relation to the broader DNGS racketeering conspiracy, which included\\n\\nQuick’s murder and the ensuing actions to avoid detection and arrest. 6 Shantai made the\\n\\nfirst challenged statement the morning after Quick’s murder, giving Anthony White\\n\\n(White), another DNGS member, a detailed account of the kidnapping and murder. This\\n\\nstatement included the fact that the capital defendants killed Quick, because “they found\\n\\nout he was a cop.” Both White and Shantai were members of the conspiracy. Although\\n\\nWhite had not participated in Quick’s murder, the statement provided information to White\\n\\non the status of the DNGS criminal enterprise, of which he was a member. See United\\n\\nStates v. Mandell, 752 F.3d 544, 552 (2d Cir. 2014) (noting that statements made between\\n\\nco-conspirators to “inform each other as to the progress or status of the conspiracy” are\\n\\n\\n 6\\n We find no merit in the defendants’ argument that Quick’s kidnapping and murder\\nand the later cover-up of those crimes were not part of the DNGS racketeering conspiracy.\\nAs noted, the government’s proffer alleged that Quick’s murder was one of many\\nracketeering acts done on behalf of the broader DNGS conspiracy. And our review of the\\nrecord evidence, discussed more fully below in Section II.E., leads us to conclude that\\nQuick’s kidnapping and murder were part of the larger-scale DNGS conspiracy.\\n 14\\n\\fstatements made in furtherance of that conspiracy). Accordingly, Shantai’s statement to\\n\\nWhite was admissible as a statement of a co-conspirator made “in furtherance of the\\n\\nconspiracy.”\\n\\n Kweli made the second challenged statement while he and Halisi were arranging for\\n\\nsomeone to destroy Quick’s vehicle. Kweli called Shiquan Jackson (Jackson), a DNGS\\n\\nmember, to inform him of the situation. Kweli told Jackson that “[Kweli] just did\\n\\nsomething bad,” and that he and the other capital defendants “just peter-rolled [i.e. killed]\\n\\na cop” and had to “lay low.” During this conversation, Kweli asked Jackson and Jackson’s\\n\\nbrother, Devante Jackson, also a DNGS member, to contact Halisi, find the vehicle, and\\n\\nquickly dispose of it. Again, all parties to this statement were members of the conspiracy,\\n\\nand Kweli’s comments to Jackson were made in furtherance of the conspiracy. Not only\\n\\nwas Kweli providing Jackson information regarding the status of the conspiracy, but he\\n\\nalso sought to “induce a coconspirator’s assistance” to destroy evidence for the purpose of\\n\\nevading detection and arrest. Id. Thus, because Kweli’s statement to his fellow DNGS\\n\\nmember was intended to “prolong the unlawful activities” of the DNGS enterprise, United\\n\\nStates v. Altomare, 625 F.2d 5, 8 n.9 (4th Cir. 1980), this statement was admissible under\\n\\nRule 801(d)(2)(E).\\n\\n The third challenged statement involves comments Mathis made to his girlfriend,\\n\\nDierra Lloyd (Lloyd), who was not a DNGS member. After Quick’s murder, Mathis\\n\\nconfessed to Lloyd that he and the other capital defendants “killed a cop.” Mathis also\\n\\n\\n\\n\\n 15\\n\\fasked Lloyd if she “knew a place where [he] could get rid of [Quick’s vehicle].” 7 Although\\n\\nthis statement was not made to a member of the DNGS enterprise, we have recognized that\\n\\n“even casual relationships to the conspiracy” will satisfy the nexus requirement of Rule\\n\\n801(d)(2)(E). United States v. Smith, 441 F.3d 254, 262 (4th Cir. 2006) (citation omitted).\\n\\nThis statement also was made “in furtherance of the conspiracy” because Mathis sought\\n\\nLloyd’s assistance in disposing of Quick’s vehicle. See Mandell, 752 F.3d at 552 (citation\\n\\nomitted). Therefore, Mathis’ statement likewise was admissible under Rule 801(d)(2)(E).\\n\\n 2.\\n\\n We turn to address the defendants’ contention that the admission of the co-\\n\\nconspirator statements violated their rights under the Confrontation Clause. We review de\\n\\nnovo this question of law. United States v. Lighty, 616 F.3d 321, 376 (4th Cir. 2010).\\n\\n The Confrontation Clause protects a defendant’s right to cross-examine a declarant\\n\\nmaking a “testimonial” statement. Davis v. Washington, 547 U.S. 813, 821 (2006).\\n\\nAlthough the Supreme Court has not articulated a precise definition of the term\\n\\n“testimonial,” the Court has provided concrete examples of testimonial evidence. At a\\n\\nminimum, such evidence includes testimony given at a preliminary hearing, before a grand\\n\\njury, and at a formal trial, as well as statements made during a police interrogation. See\\n\\nCrawford, 541 U.S. at 68. More recently, the Court has explained that a statement is\\n\\ntestimonial in nature if the statement was made or procured with the “primary purpose” of\\n\\n\\n\\n 7\\n It is not clear from the trial record whether Lloyd helped Mathis and the other\\nmembers destroy the vehicle following Mathis’ request.\\n\\n 16\\n\\fcreating an “out-of-court substitute for trial testimony.” Ohio v. Clark, 135 S. Ct. 2173,\\n\\n2180 (2015) (quoting Michigan v. Bryant, 562 U.S. 344, 358 (2011)).\\n\\n We conclude that the challenged co-conspirator statements were not testimonial in\\n\\nnature. The defendants made the challenged statements to co-conspirators and to Lloyd\\n\\nabout criminal activities related to the DNGS criminal enterprise. Moreover, all the\\n\\nstatements were made in furtherance of that criminal conspiracy and were not intended to\\n\\nbe used as a substitute for trial testimony. Accordingly, the admission of the challenged\\n\\nstatements did not violate the defendants’ rights under the Confrontation Clause. 8 See\\n\\nUnited States v. Jordan, 509 F.3d 191, 194, 201 (4th Cir. 2007) (holding that statements\\n\\nmade by declarant and alleged co-conspirator to the declarant’s friend describing events\\n\\nrelated to the murder of a drug courier were non-testimonial and, thus, did not violate the\\n\\nConfrontation Clause).\\n\\n C.\\n\\n The defendants next contend that the indictment was defective because it charged\\n\\nthat Quick was prevented from communicating “to a law enforcement officer,” rather than\\n\\n“to a law enforcement officer . . . of the United States,” as provided in the language of 18\\n\\nU.S.C. § 1512(a)(1)(C). The district court did not reach the merits of this argument,\\n\\ndetermining that the defendants’ motion to dismiss the witness tampering count and related\\n\\n\\n 8\\n Given that admission of the co-conspirator statements did not violate the\\nConfrontation Clause, we reject the defendants’ additional claim under Bruton v. United\\nStates, 391 U.S. 123 (1968). United States v. Dargan, 738 F.3d 643, 651 (4th Cir. 2013)\\n(“Statements that do not implicate the Confrontation Clause, a fortiori, do not implicate\\nBruton.”).\\n\\n 17\\n\\fSection 924(c) count was untimely and that they failed to establish “good cause” to excuse\\n\\ntheir untimely filing.\\n\\n The defendants concede that their motion to dismiss was untimely but argue that\\n\\nthey had good cause for the untimely filing, because some of the defendants’ attorneys\\n\\nwere unaware of the alleged defect in the indictment. The defendants alternatively\\n\\nmaintain that despite their untimely motion, this Court may review the merits of their\\n\\nargument for plain error, and conclude under that standard that the indictment was\\n\\ndefective. We conclude that the defendants failed to show good cause and that, in any\\n\\nevent, there was no defect in the indictment.\\n\\n We review the district court’s finding of lack of good cause for abuse of discretion.\\n\\nUnited States v. Soto, 794 F.3d 635, 655 (6th Cir. 2015); cf. United States v. Cowley, 814\\n\\nF.3d 691, 698 (4th Cir. 2016) (reviewing for abuse of discretion the district court’s finding\\n\\nthat defendant did not establish good cause to rebut the presumption of untimeliness under\\n\\nthe Innocence Protection Act). Under Federal Rule of Criminal Procedure 12, a challenge\\n\\nto a defect in an indictment “must be raised by pretrial motion if the basis for the motion\\n\\nis then reasonably available and the motion can be determined without a trial on the\\n\\nmerits.” 9 Fed. R. Crim. P. 12(b)(3)(B). If a party fails to meet this deadline, the motion is\\n\\n\\n 9\\n This version of Rule 12 took effect on December 1, 2014, a few weeks after the\\nindictment was returned by the grand jury. The defendants do not argue that the prior\\nversion of Rule 12 applies. In any event, we determine that the current version of Rule 12\\napplies, because this case was pending at the time the Rule took effect and the Rule’s\\napplication is “just and practicable.” See S. Ct. Order Amending Fed. R. Crim. P. at ¶ 2\\n(Apr. 25, 2014) (providing that the new rules “shall govern in all proceedings in criminal\\ncases thereafter commenced and, insofar as just and practicable, all proceedings then\\npending”).\\n 18\\n\\funtimely. Id. 12(c)(3). A district court “may consider” an untimely motion only if the\\n\\nmoving party “shows good cause” for its delayed action. Id.\\n\\n We conclude that the district court did not abuse its discretion in finding that the\\n\\nmotion was untimely, and that the defendants failed to show good cause for their delayed\\n\\nchallenge. Mathis’ counsel informed the court that he had “held onto” the perceived defect\\n\\nin the indictment “for quite [awhile]” because of his “hope that [he] would get into serious\\n\\nplea negotiations with the government, and that if [he] did get in serious plea negotiations\\n\\nwith the government, that [he] could get some mileage out of it.” Counsel further admitted\\n\\nthat he “could have filed [the motion to dismiss] right before trial, [he] could have filed it\\n\\nbefore the jury was picked, [he] could have filed it any of those times, and [he] didn’t.”\\n\\n A party’s affirmative decision to delay filing a motion in an attempt to gain a\\n\\nstrategic advantage at trial does not amount to good cause for purposes of Rule 12. See\\n\\nUnited States v. Ramirez, 324 F.3d 1225, 1228 (11th Cir. 2003) (holding that defense tactic\\n\\nof “sandbagging” is not good cause for failure to file motion to dismiss (citation omitted));\\n\\nsee also United States v. Oldfield, 859 F.2d 392, 397 (6th Cir. 1988) (noting that one\\n\\npurpose of Rule 12 is to “restrict[] the defense tactic of ‘sandbagging’” (citation omitted)).\\n\\nAccordingly, we affirm the district court’s denial of the defendants’ untimely motion to\\n\\ndismiss the witness tampering charge and the related Section 924(c) counts of the\\n\\nindictment. 10\\n\\n\\n 10\\n We are not persuaded by the defendants’ argument that there was good cause for\\nthe untimely motion because some attorneys for the other defendants were unaware of the\\nalleged defect. See United States v. Ruhe, 191 F.3d 376, 386–87 (4th Cir. 1999) (holding\\n(Continued)\\n 19\\n\\f More fundamentally, there was no defect, plain or otherwise, in the indictment.\\n\\nGenerally, an indictment is sufficient if it “(1) indicate[s] the elements of the offense and\\n\\nfairly inform[s] the defendant of the exact charges and (2) enable[s] the defendant to plead\\n\\ndouble jeopardy in subsequent prosecutions for the same offense.” United States v.\\n\\nWilliams, 152 F.3d 294, 299 (4th Cir. 1998) (citation omitted). The fact that the language\\n\\nat issue in the indictment did not track the precise language of the statute did not constitute\\n\\nerror under these circumstances. Id. The indictment detailed the factual basis for the\\n\\nwitness tampering charge and cited to the correct statute, fairly apprising the defendants of\\n\\nthe crime charged and its required elements. Id. Therefore, we reject the defendants’ claim\\n\\nof error.\\n\\n D.\\n\\n The defendants next argue that the district court violated their Fifth Amendment\\n\\nrights by amending the indictment through the court’s instructions to the jury. According\\n\\nto the defendants, although the indictment alleged that the Bloods gang was the criminal\\n\\nenterprise underlying the RICO charge, the court instead instructed the jury that DNGS\\n\\nwas the alleged enterprise.\\n\\n We do not address the merits of this argument because the defendants invited the\\n\\nclaimed error. United States v. Herrera, 23 F.3d 74, 75 (4th Cir. 1994) (“[A] court can not\\n\\nbe asked by counsel to take a step in a case and later be convicted of error, because it has\\n\\ncomplied with such request.” (quoting Shields v. United States, 273 U.S. 583, 586 (1927))).\\n\\n\\nthat there was no good cause to raise an untimely suppression motion when the defendant\\ncould have with due diligence discovered the information necessary to raise the issue).\\n 20\\n\\fAt the charging conference near the end of the trial, the defendants argued that the jury\\n\\nshould be instructed that the alleged enterprise was only the Bloods, and did not include\\n\\nDNGS. The government noted that the indictment referred to the Bloods and DNGS\\n\\ninterchangeably and ultimately offered, with the district court’s approval, that the exact\\n\\nlanguage contained in the indictment be used in the jury instructions. Nonetheless, the\\n\\ndefendants declined this proposed course of action and requested that the instructions\\n\\nnaming only DNGS be used. Thus, even if the court’s instruction was improper, the\\n\\ndefendants could have cured any such error but did not. 11 See United States v. Lespier, 725\\n\\nF.3d 437, 445–46, 449–51 (4th Cir. 2013) (holding that the invited error doctrine applies\\n\\nwhen the defendant opposed provision of a particular instruction and then argued on appeal\\n\\nthat it was error for instruction not to have been given).\\n\\n E.\\n\\n The defendants challenge the sufficiency of the evidence to convict them of the\\n\\nRICO conspiracy under 18 U.S.C. § 1962(d). 12 The capital defendants also argue that their\\n\\nfederal witness tampering convictions under 18 U.S.C. § 1512(a)(1)(C) are not supported\\n\\n\\n 11\\n The defendants do not argue that an exception to the invited error doctrine is\\napplicable in this case. See United States v. Lespier, 725 F.3d 437, 450–51 (4th Cir. 2013).\\n 12\\n The defendants also challenge the sufficiency of the evidence underlying their\\nnumerous VICAR convictions under 18 U.S.C. § 1959(a)(3), and violations of 18 U.S.C.\\n§ 924(c), based on the underlying VICAR offenses. VICAR imposes criminal liability on\\nan individual who commits a crime of violence “for the purpose of gaining entrance to or\\nmaintaining or increasing position in an enterprise engaged in racketeering activity.” 18\\nU.S.C. § 1959(a). As Section 1959(a) incorporates the same definition of “enterprise” as\\nRICO, 18 U.S.C. § 1959(b), our analysis of the defendants’ challenge to the RICO\\nconspiracy convictions applies equally to the VICAR and related Section 924(c)\\nconvictions.\\n 21\\n\\fby the evidence. Additionally, Halisi and Stokes challenge the sufficiency of the evidence\\n\\nto support their convictions for obstruction of justice under 18 U.S.C. § 1512(c)(1).\\n\\n We will sustain a jury’s verdict when there is substantial evidence, construed in the\\n\\nlight most favorable to the government, supporting the verdict. United States v. Hackley,\\n\\n662 F.3d 671, 678 (4th Cir. 2011). We address the defendants’ arguments in turn, setting\\n\\nforth additional facts as necessary to decide each argument.\\n\\n 1.\\n\\n The defendants each were convicted of conspiracy to participate in a racketeering\\n\\nenterprise in violation of 18 U.S.C. § 1962(d). To obtain a conviction under this statute,\\n\\nthe government was required to prove “that an enterprise affecting interstate commerce\\n\\nexisted; that each defendant knowingly and intentionally agreed with another person to\\n\\nconduct or participate in the affairs of the enterprise; and . . . that each defendant knowingly\\n\\nand willfully agreed that he or some other member of the conspiracy would commit at least\\n\\ntwo racketeering acts.” United States v. Mouzone, 687 F.3d 207, 218 (4th Cir. 2012)\\n\\n(citations and internal quotation marks omitted).\\n\\n a.\\n\\n The defendants argue that: (1) DNGS was not an “enterprise,” as the term is used in\\n\\nthe RICO statute; and (2) their crimes were “unplanned, disorganized, and spontaneous”\\n\\nand, thus, did not constitute a pattern of racketeering activity. We find no merit in either\\n\\nargument.\\n\\n The RICO statute defines the term “enterprise” as “any . . . group of individuals\\n\\nassociated in fact although not a legal entity.” 18 U.S.C. § 1961(4). A RICO enterprise\\n\\n 22\\n\\f“is proved by evidence of an ongoing organization, formal or informal, and by evidence\\n\\nthat the various associates function[ed] as a continuing unit.” United States v. Turkette,\\n\\n452 U.S. 576, 583 (1981). The Supreme Court has explained that an “association-in-fact\\n\\nenterprise” must have “at least three structural features: a purpose, relationships among\\n\\nthose associated with the enterprise, and longevity sufficient to permit these associates to\\n\\npursue the enterprise’s purpose.” Boyle v. United States, 556 U.S. 938, 946 (2009).\\n\\n Here, the government presented sufficient evidence from which a reasonable jury\\n\\ncould conclude that DNGS was an “enterprise,” within the meaning of the RICO statute.\\n\\nDNGS members received tattoos and wore red clothing signifying their membership in the\\n\\ngang, congregated regularly at membership meetings, and had a set of governing rules that\\n\\nmembers were expected to follow. Members shared a common function and purpose,\\n\\nnamely, to enrich members of the gang by “putting in work” through the commission of\\n\\nviolent crimes and selling drugs. DNGS members also agreed to provide, and did provide,\\n\\nprotection for one another. Although an “enterprise” “need not have a hierarchical\\n\\nstructure or chain of command,” id. at 948, the presence of such organizational features\\n\\nprovides additional evidence of a functioning “enterprise.” And here, the government’s\\n\\nevidence established that DNGS had a clearly delineated leadership structure.\\n\\n Although the RICO statute does not define the phrase “pattern of racketeering\\n\\nactivity,” see 18 U.S.C. § 1962, the statute specifies that proof of a “pattern of racketeering\\n\\nactivity” requires evidence of “at least two acts of racketeering activity” committed within\\n\\na ten-year period, 18 U.S.C. § 1961(5). The Supreme Court further has explained that to\\n\\nestablish a pattern of racketeering activity, the racketeering predicate acts must be related\\n\\n 23\\n\\fto each other (the “relatedness prong”), and must amount to, or pose a threat of, continued\\n\\ncriminal activity (the “continuity prong”). H.J. Inc. v. N.W. Bell Tel. Co., 492 U.S. 229,\\n\\n239 (1989) (“It is this factor of continuity plus relationship which combines to produce a\\n\\npattern.” (citation omitted)).\\n\\n At issue here is the relatedness prong of the pattern analysis. 13 Racketeering acts\\n\\nare related if they “have the same or similar purposes, results, participants, victims, or\\n\\nmethods of commission, or otherwise are interrelated by distinguishing characteristics and\\n\\nare not isolated events.” Id. at 240 (citation omitted). In making this determination, we\\n\\nemploy the “commonsense, everyday understanding” of the statutory language. Id. at 241.\\n\\n We conclude that the government sufficiently established a “pattern of racketeering\\n\\nactivity.” The government introduced evidence of twelve racketeering acts leading up to\\n\\nQuick’s kidnapping and murder. Various combinations of DNGS members committed\\n\\nthese crimes together. Those crimes shared the common purpose of enriching DNGS\\n\\n\\n\\n 13\\n While the defendants have not, apart from a single conclusory statement, raised a\\ncontinuity argument, we determine that the continuity prong is satisfied here. H.J. Inc.,\\n492 U.S. at 241–42 (holding that the continuity prong can be met by showing that related\\npredicate offenses continued over a substantial period of time or posed a threat of\\ncontinuing activity). Although the predicate acts established at trial were committed over\\nthe span of five months, the racketeering offenses were part of an ongoing criminal\\nenterprise and were committed to enrich DNGS members and to facilitate future criminal\\nacts. See id. at 242–43 (noting that “the threat of continuity is sufficiently established\\nwhere the predicates can be attributed to a defendant operating as part of a long-term\\nassociation that exists for criminal purposes”). DNGS also worked to protect its members\\nfrom apprehension by law enforcement authorities. See United States v. Aulicino, 44 F.3d\\n1102, 1111 (2d Cir. 1995) (holding that “in cases where the acts of the defendant or the\\nenterprise were inherently unlawful, such as murder or obstruction of justice, and were in\\npursuit of inherently unlawful goals . . . courts generally have concluded that the requisite\\nthreat of continuity was adequately established”).\\n 24\\n\\fmembers, bolstering the gang’s reputation for violence, or evading law enforcement\\nauthorities. In committing these crimes, the defendants employed firearms, threats of\\nphysical force, and actual physical force. The jury could conclude, based on this\\nevidence, that the defendants had engaged in a “pattern of racketeering activity.”\\n b.\\n\\n Halisi and Stokes separately argue that the government failed to prove that either of\\n\\nthem agreed to the commission of at least two of the charged racketeering acts. The\\n\\ngovernment offered evidence of three categories of racketeering acts: drug trafficking,\\n\\nobstruction of justice, and robbery, in violation of state and federal law. 14 Although Halisi\\n\\nand Stokes do not dispute that they conspired to distribute narcotics, they argue that these\\n\\nactivities were not related to DNGS and, thus, were not part of the RICO conspiracy. Halisi\\n\\nand Stokes also claim that their acts of obstruction did not constitute racketeering acts,\\n\\nbecause those acts occurred after the completion of the RICO conspiracy. We disagree\\n\\nwith these arguments.\\n\\n “[A] defendant can conspire to violate RICO and violate [Section] 1962(d) without\\n\\nhimself committing or agreeing to commit the two or more acts of racketeering activity.”\\n\\nMouzone, 687 F.3d at 218 (internal brackets and quotation marks omitted) (citing Salinas\\n\\nv. United States, 522 U.S. 52, 65 (1997)). He need only “agree to pursue the same criminal\\n\\nobjective” as that of the enterprise. Salinas, 522 U.S. at 63–64. This agreement is apparent\\n\\nfrom Halisi and Stokes’ role within DNGS. Both men were the enterprise’s founders and\\n\\nleaders. Both defendants had a central role in directing the enterprise, which required its\\n\\n\\n 14\\n Because we conclude that Halisi and Stokes participated in the racketeering acts\\nof drug trafficking and obstruction of justice, we need not decide whether there was\\nsufficient evidence to prove that they also participated in the other racketeering activities\\nalleged in the indictment, including robbery.\\n 25\\n\\fmembers to commit crimes for the gang’s welfare and support. These facts strongly\\n\\nsupport the jury’s conclusion that Halisi and Stokes were actively involved in the RICO\\n\\nconspiracy conducted by DNGS, including the robberies committed by the capital\\n\\ndefendants and others.\\n\\n Abundant evidence showed that DNGS members distributed controlled substances\\n\\nand discussed arrangements for expanding their drug distribution networks at DNGS\\n\\nmeetings. Other evidence showed that drug trafficking was done for the benefit of DNGS,\\n\\nand copies of DNGS-related documents introduced at trial reflected a detailed code used\\n\\nby DNGS members to disguise their intended language when discussing narcotics. DNGS\\n\\nmembers also sought to invest money obtained from robberies and theft into the gang’s\\n\\ndrug distribution network. Thus, the jury could conclude from the evidence that the\\n\\ndistribution of controlled substances was a centerpiece of the DNGS criminal enterprise.\\n\\n The government also produced substantial evidence that the acts of obstruction\\n\\ncommitted by Halisi and Stokes were done during and in furtherance of the conspiracy.\\n\\nHalisi and Stokes ordered the destruction of, or directly destroyed, evidence related to\\n\\nQuick’s murder, including Quick’s ATM card, the murder weapon, and the phones\\n\\nbelonging to DNGS members. Halisi and Stokes took these actions not only to “cover up”\\n\\nthe crimes that had been committed, but also to prolong the unlawful activities of the DNGS\\n\\nenterprise and to protect the DNGS members from being arrested. Accordingly, the jury\\n\\ncould conclude from this evidence that the obstructive acts committed by Halisi and Stokes\\n\\nconstituted acts of racketeering. Altomare, 625 F.2d at 8 n.9 (explaining that defendant’s\\n\\nattempt to obstruct was “not merely an attempt to cover up a previously completed crime,\\n\\n 26\\n\\fbut was an effort to prolong the unlawful activities of the enterprise in which he and his\\n\\nco-conspirators were engaged”).\\n\\n 2.\\n\\n The capital defendants argue that the evidence was insufficient to prove that they\\n\\nengaged in witness tampering by murder to prevent Quick from reporting a carjacking\\n\\noffense. In particular, they assert that their witness tampering convictions cannot stand,\\n\\nbecause the government failed to prove the underlying crime of carjacking. We find no\\n\\nmerit in this argument.\\n\\n The federal witness tampering statute prohibits “kill[ing] another person, with intent\\n\\nto . . . prevent the communication by any person to a law enforcement officer . . . of the\\n\\nUnited States” of “information relating to the . . . possible commission of a Federal\\n\\noffense.” 18 U.S.C. § 1512(a)(1)(C) (emphasis added). Section 1512 does not require that\\n\\nthe government prove the completion of an underlying federal offense to establish witness\\n\\ntampering. 15 Instead, inclusion of the word “possible” in the statutory language reflects\\n\\nthat a conviction under Section 1512 requires only that a witness was prevented from\\n\\ncommunicating to the authorities information about a possible or actual federal offense.\\n\\n 3.\\n\\n\\n\\n 15\\n For the same reason, we reject the capital defendants’ more specific argument that\\nthe government failed to adduce evidence establishing the federal nexus required by the\\ncarjacking statute. See 18 U.S.C. § 2119 (prohibiting the taking of “a motor vehicle that\\nhas been transported, shipped, or received in interstate or foreign commerce” (emphasis\\nadded)). For the purposes of the witness tampering conviction, the government was not\\nrequired to proffer evidence proving the elements of the underlying crime of carjacking,\\nincluding the federal nexus requirement.\\n 27\\n\\f Halisi and Stokes contend that the evidence was insufficient to support their\\n\\nconvictions for obstruction of justice under 18 U.S.C. § 1512(c)(1), which, in relevant part,\\n\\nprohibits a person from “corruptly . . . alter[ing], destroy[ing], mutilat[ing], or conceal[ing]\\n\\na record, document, or other object, or attempt[ing] to do so, with the intent to impair the\\n\\nobject’s integrity or availability for use in an official proceeding.” We consider their\\n\\nseparate arguments in turn.\\n\\n Halisi argues that, because he only instructed other individuals to destroy evidence\\n\\nand did not directly destroy any evidence himself, he did not commit the crime of\\n\\nobstruction of justice. 16 We disagree.\\n\\n Under the doctrines of vicarious liability and co-conspirator liability, a defendant is\\n\\nliable for the substantive offenses committed by a co-conspirator when the commission of\\n\\nthe acts is reasonably foreseeable and is done in furtherance of the conspiracy. United\\n\\nStates v. Ashley, 606 F.3d 135, 143 (4th Cir. 2010). The jury properly was instructed on\\n\\nboth these theories of liability. 17 The evidence at trial established that Halisi ordered\\n\\nCasterlow to destroy Quick’s ATM card, instructed his girlfriend to destroy his and\\n\\nCasterlow’s phones, and gave Stokes the disassembled murder weapon in order for Stokes\\n\\nto discard the component parts. Thus, the jury reasonably could determine under a theory\\n\\nof either vicarious or co-conspirator liability that Halisi was responsible for destroying\\n\\n\\n\\n 16\\n The indictment alleged that Halisi was involved “in directing the efforts of the\\nenterprise in the destruction of documents and evidence associated with” Quick’s murder.\\n 17\\n These theories of liability need not be charged in the indictment. See Ashley, 606\\nF.3d at 143.\\n 28\\n\\fevidence by commanding others to do so on his behalf. Accordingly, we affirm his\\n\\nconviction for obstruction of justice.\\n\\n Stokes advances a separate challenge to his conviction for obstruction of justice. He\\n\\nargues that: (1) his conviction is invalid because a federal grand jury had not been convened\\n\\nto consider the crimes charged at the time that he purportedly obstructed justice; and (2)\\n\\nthe government failed to prove that, at the time of his actions, he contemplated an official\\n\\nproceeding that was federal in nature. We reject both these arguments, which are\\n\\nforeclosed by the plain language of Section 1512.\\n\\n Section 1512(f)(1) provides, in relevant part, that “[f]or the purposes of this section\\n\\n. . . an official proceeding need not be pending or about to be instituted at the time of the\\n\\noffense.” And Section 1512(g)(1) provides that “[i]n a prosecution for an offense under\\n\\nthis section, no state of mind need be proved with respect to the circumstance . . . that the\\n\\nofficial proceeding . . . is before a judge or court of the United States, a United States\\n\\nmagistrate judge, . . . a Federal grand jury, or a Federal Government agency.”\\n\\n Despite this plain language, however, Stokes maintains that the Supreme Court’s\\n\\ndecision in Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), clarified that the\\n\\ngovernment was required to prove that Stokes contemplated a particular and foreseeable\\n\\nfederal grand jury or federal court proceeding. The Supreme Court held in Arthur Andersen\\n\\nthat certain other provisions of the witness tampering statute, Section 1512(b)(2)(A) and\\n\\n(B), require that the government prove a “nexus” between the defendant’s conduct and a\\n\\nforeseeable official proceeding. 544 U.S. at 698, 707–08. We will assume, without\\n\\ndeciding, that Section 1512(c)(1) imposed the same burden on the government in the\\n\\n 29\\n\\fpresent case, requiring the government to establish a “nexus” between Stokes’ obstructive\\n\\naction and a foreseeable official proceeding. See United States v. Young, 916 F.3d 368,\\n\\n386 (4th Cir. 2019) (holding that the “nexus” requirement applies to Section 1512(c)(2)).\\n\\nThe evidence before us easily satisfied such a requirement.\\n\\n Rice, who was with Stokes days after Quick’s murder, testified that Stokes received\\n\\na call that “the fed—the police had kicked in the door to [the DNGS members’ hotel].”\\n\\nStokes responded to Rice that the murder weapon was still in Casterlow’s possession, and\\n\\nthat Stokes was “concerned” the gun could be traced “back to the murder” and link him to\\n\\nthe crime. The evidence further established that Stokes later took action to dispose of the\\n\\nmurder weapon. The jury could conclude from this evidence that Stokes thought that his\\n\\nacts likely would affect a foreseeable official proceeding. See Arthur Anderson, 544 U.S.\\n\\nat 707.\\n\\n Nor was the government required to establish that Stokes contemplated an official\\n\\nproceeding that was federal in nature in order to secure a conviction under Section 1512(c).\\n\\nAs quoted above, the language of Section 1512(g)(1) plainly refutes such a contention. See\\n\\nUnited States v. Phillips, 583 F.3d 1261, 1264–65 (10th Cir. 2009) (holding that in a\\n\\nprosecution under Section 1512(c), “the government need not prove [that] the defendant\\n\\nknew that the official proceeding at issue was a federal proceeding such as a grand jury\\n\\ninvestigation”). Accordingly, we conclude that the evidence was sufficient to support\\n\\nStokes’ conviction for obstruction of justice under Section 1512(c)(1).\\n\\n F.\\n\\n\\n\\n 30\\n\\f The defendants next challenge a number of their convictions under 18 U.S.C. §\\n\\n924(c) for use of a firearm during a crime of violence. They argue that the predicate\\n\\noffenses underlying their Section 924(c) convictions do not qualify as crimes of violence\\n\\nunder the statute’s “force clause,” 18 U.S.C. § 924(c)(3)(A). With respect to the statute’s\\n\\n“residual clause,” id. § 924(c)(3)(B), the defendants argue that the clause is\\n\\nunconstitutionally vague in light of the Supreme Court’s decision in Johnson v. United\\n\\nStates, 135 S. Ct. 2551 (2015) (Johnson II).\\n\\n We review de novo the question whether an offense qualifies as a crime of violence.\\n\\nSee United States v. McNeal, 818 F.3d 141, 151 (4th Cir. 2016). An offense under Section\\n\\n924(c) arises when a defendant uses or carries a firearm during or in relation to a “crime of\\n\\nviolence.” 18 U.S.C. § 924(c)(1)(A). Subsection (c)(3) defines the term “crime of\\n\\nviolence” as a felony offense that:\\n\\n (A) has as an element the use, attempted use, or threatened use of physical\\n force against the person or property of another, or\\n\\n (B) that by its nature, involves a substantial risk that physical force against\\n the person or property of another may be used in the course of committing\\n the offense.\\n\\n18 U.S.C. § 924(c)(3). We refer to Section 924(c)(3)(A) as the “force clause,” and to Section\\n\\n924(c)(3)(B) as the “residual clause” or the “924(c) residual clause.” United States v. Fuertes,\\n\\n805 F.3d 485, 498 (4th Cir. 2015).\\n\\n The Supreme Court recently agreed with the defendants’ argument that the 924(c)\\n\\nresidual clause is unconstitutionally vague. United States v. Davis, 139 S. Ct. 2319, 2336\\n\\n(2019). The Court held that like similarly worded residual clauses struck down in Johnson\\n\\n\\n 31\\n\\fII, 135 S. Ct. at 2557, and Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018), the 924(c)\\n\\nresidual clause improperly required the sentencing judge’s “estimation of the degree of risk\\n\\nposed by a crime’s imagined ‘ordinary case.’” Davis, 139 S. Ct. at 2325-26, 2336. 18 Our\\n\\nanalysis therefore is limited to considering whether the defendants’ prior convictions qualify\\n\\nas crimes of violence under the force clause.\\n\\n To determine whether an offense qualifies as a crime of violence under Section\\n\\n924(c)(3)(A), we apply the categorical approach or the modified categorical approach,\\n\\ndepending on the nature of the offense. Id. The categorical approach focuses “on the\\n\\nelements of the prior offense rather than the conduct underlying the conviction.” United\\n\\nStates v. Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir. 2013) (citation omitted). Thus,\\n\\nwe do not inquire “whether the defendant’s conduct could support a conviction for a crime\\n\\nof violence” but instead inquire “whether the defendant was in fact convicted of a crime\\n\\nthat qualifies as a crime of violence.” Id.\\n\\n In a “narrow range of cases,” involving statutes that are comprised of “multiple,\\n\\nalternative versions of the crime,” we apply the modified categorical approach. Descamps\\n\\nv. United States, 570 U.S. 254, 261–62 (2013) (citing Taylor v. United States, 495 U.S.\\n\\n575, 602 (1990)). When confronted with such a “divisible” statute, we review certain\\n\\nunderlying documents, including the indictment, “to determine what crime, with what\\n\\n\\n 18\\n The Supreme Court rejected the government’s argument that unlike the residual\\nclauses at issue in Johnson II and Dimaya, the 924(c) residual clause permits a case-specific\\napproach allowing consideration of the defendant’s actual conduct in the predicate crime,\\nrather than the crime in the “ordinary” sense. Davis, 139 S. Ct. at 2327−33. The Court\\nreasoned that the statutory language and historical context of the 924(c) residual clause did\\nnot permit a “case-specific reading.” Id.\\n 32\\n\\felements,” formed the basis of a defendant’s conviction. Mathis v. United States, 136 S.\\n\\nCt. 2243, 2249 (2016) (citations omitted).\\n\\n With this framework in mind, we turn to consider each predicate offense underlying\\n\\nthe defendants’ Section 924(c) convictions. These predicate offenses are: (1) VICAR in\\n\\nviolation of 18 U.S.C. § 1959 by committing murder in violation of Virginia law, Virginia\\n\\nCode § 18.2-32; (2) witness tampering by means of murder in violation of 18 U.S.C. §\\n\\n1512(a); (3) Hobbs Act robbery in violation of 18 U.S.C. § 1951(a); and (4) VICAR by\\n\\ncommitting kidnapping in violation of Virginia law, Virginia Code § 18.2-47.\\n\\n 1.\\n\\n We begin by addressing whether the capital defendants’ Section 924(c) convictions,\\n\\nwhich involve (1) commission of VICAR by committing first-degree murder under\\n\\nVirginia law 19 and (2) federal witness tampering by means of murder under federal law,\\n\\nqualify as crimes of violence under the force clause. The capital defendants contend that\\n\\nVirginia’s definition of first-degree murder, 20 prohibited under Virginia Code § 18.2-32,\\n\\ndoes not require the use or threatened use of force against another, because a defendant can\\n\\nviolate the statute by using non-violent, indirect means, such as “poison[ing]” a victim.\\n\\n\\n\\n 19\\n Neither party contests the applicability of the categorical approach to the VICAR-\\nmurder, agreeing that Virginia’s murder statute is indivisible.\\n 20\\n Virginia Code § 18.2-32 specifies “[a]ll murder other than capital murder and\\nmurder in the first degree is murder of the second degree.” Although the indictment did\\nnot specify whether the VICAR conviction was predicated on a first-degree or second-\\ndegree murder, the district court instructed the jury on first-degree murder. The parties do\\nnot dispute that the capital defendants’ VICAR convictions stem from commission of first-\\ndegree murder under Virginia law.\\n 33\\n\\fAdvancing the same rationale, the capital defendants also assert that federal witness\\n\\ntampering by murder, under 18 U.S.C. § 1512(a)(1)(C), is not categorically a crime of\\n\\nviolence.\\n\\n This line of reasoning, however, is foreclosed by the Supreme Court’s decision in\\n\\nUnited States v. Castleman, in which the Court held that “physical force is simply force\\n\\nexerted by and through” human action and that, therefore, a person need not “directly”\\n\\ntouch his victim to exert “physical force.” 572 U.S. 157, 170−71 (2014) (citations and\\n\\ninternal quotation marks omitted). Accordingly, so long as an offender’s use of physical\\n\\nforce, whether direct or indirect, could cause a violent result, the force used categorically\\n\\nis violent. See id. at 1415; see also In re Irby, 858 F.3d 231, 236, 238 (4th Cir. 2017)\\n\\n(holding that second-degree retaliatory murder is a crime of violence under Section\\n\\n924(c)’s force clause and noting that the “distinction . . . between indirect and direct\\n\\napplications of force . . . no longer remains valid in light of Castleman’s explicit rejection\\n\\nof such a distinction”) (citations and internal quotation marks omitted).\\n\\n A conviction for first-degree murder under Virginia law requires the “willful,\\n\\ndeliberate, and premeditated” killing of another. Va. Code § 18.2-32. Murder “requires\\n\\nthe use of force capable of causing physical pain or injury to another person” irrespective\\n\\nwhether that force is exerted directly or indirectly by a defendant. See In re Irby, 858 F.3d\\n\\nat 236, 238. Therefore, we conclude that the crime of first-degree murder under Virginia\\n\\nlaw qualifies categorically as a crime of violence under the force clause, and we affirm the\\n\\ncapital defendants’ Section 924(c) convictions that are based on the commission of this\\n\\nVirginia offense.\\n\\n 34\\n\\f Likewise, because federal witness tampering by murder also requires the unlawful\\n\\nkilling of another, which may be accomplished by force exerted either directly or indirectly,\\n\\nwe find no merit in the capital defendants’ challenge to their federal witness tampering\\n\\nconvictions under 18 U.S.C. § 1512(a)(1)(C). 21 See In re Irby, 858 F.3d at 236.\\n\\nAccordingly, we affirm the Section 924(c) convictions predicated on the capital\\n\\ndefendants’ convictions for federal witness tampering by murder, in violation of Section\\n\\n1512(a)(1)(C).\\n\\n 2.\\n\\n We next consider the defendants’ argument that their Section 924(c) convictions\\n\\nbased on Hobbs Act robbery do not qualify as crimes of violence. 22 The defendants argue\\n\\nthat because Hobbs Act robbery can be committed by placing a victim in fear of injury, the\\n\\noffense does not necessarily include as an element the “use, attempted use, or threatened\\n\\n\\n\\n\\n 21\\n Because this offense can be committed in various ways, the statute is divisible.\\nSee Descamps, 570 U.S. at 262. However, we need not apply the modified categorical\\napproach here, because the parties agree and the record establishes that the capital\\ndefendants were convicted of witness tampering by means of murder under Section\\n1512(a)(1)(C). See United States v. Carthorne, 726 F.3d 503, 512 (4th Cir. 2013).\\n 22\\n The defendants convicted of Hobbs Act robbery and the related Section 924(c)\\ncharge are Shantai, Mersadies, and Mathis.\\n 35\\n\\fuse of force,” as required by the force clause. The defendants also contend that because\\n\\nHobbs Act robbery may be accomplished by threatening another with injury to intangible\\n\\nproperty, such as shares of stock in a corporation, Hobbs Act robbery does not qualify as a\\n\\ncrime of violence under the force clause. We disagree with both arguments. 23\\n\\n The Hobbs Act penalizes a person who “in any way or degree obstructs, delays, or\\n\\naffects commerce . . . by robbery or extortion or attempts or conspires so to do, or commits\\n\\nor threatens physical violence to any person or property in furtherance of a plan or purpose\\n\\nto do anything in violation of this section.” 18 U.S.C. § 1951. “Robbery” is defined, in\\n\\nrelevant part, as the taking of personal property from another “by means of actual or\\n\\nthreatened force, or violence, or fear of injury, immediate or future, to his person or\\n\\nproperty.” Id. § 1951(b)(1) (emphasis added).\\n\\n The question whether Hobbs Act robbery, when committed by means of causing\\n\\nfear of injury, qualifies as a crime of violence is guided by our decision in McNeal, 818\\n\\nF.3d 141. In McNeal, we held that the crime of federal bank robbery, which may be\\n\\ncommitted by “force and violence, or by intimidation,” 18 U.S.C. § 2113(a) (emphasis\\n\\nadded), qualifies as a crime of violence under the force clause. 818 F.3d at 152–53. We\\n\\nexplained that the use of intimidation, as proscribed by the bank robbery statute, necessarily\\n\\n“involves the threat to use [physical] force.” Id. at 153. Although the bank robbery statute,\\n\\n\\n\\n 23\\n The Hobbs Act is a divisible statute that prescribes two alternative methods of\\nviolating the Hobbs Act, namely, robbery and extortion. 18 U.S.C. § 1952(b)(1), (2). As\\nbefore, however, we need not apply the modified categorical approach here, because the\\nparties do not dispute and the record supports that the defendants were charged with and\\nconvicted of Hobbs Act robbery. See Carthorne, 726 F.3d at 512.\\n 36\\n\\fSection 2113, refers to use of “intimidation,” rather than “fear of injury,” we see no material\\n\\ndifference between the two terms for purposes of determining whether a particular type of\\n\\nrobbery qualifies as a crime of violence. Nor are we aware of any case in which a court\\n\\nhas interpreted the phrase “fear of injury” as meaning anything other than intimidation.\\n\\n We also observe that both Section 924(c) and Hobbs Act robbery reference the use\\n\\nof force or threatened use of force against “property” generally, without further defining\\n\\nthe term “property.” Compare 18 U.S.C. § 924(c)(3)(A) (defining a “crime of violence”\\n\\nas having “as an element the use, attempted use, or threatened use of physical force against\\n\\n. . . property of another”), with 18 U.S.C. § 1951 (defining “robbery” as a taking “by means\\n\\nof actual or threatened force, or violence, or fear of injury, immediate or future, to his . . .\\n\\nproperty”). And neither provision draws any distinction between tangible and intangible\\n\\nproperty. Thus, we do not discern any basis in the text of either statutory provision for\\n\\ncreating a distinction between threats of injury to tangible and intangible property for\\n\\npurposes of defining a crime of violence. Accordingly, we conclude that Hobbs Act\\n\\nrobbery constitutes a crime of violence under the force clause of Section 924(c). 24 See\\n\\nUnited States v. Garcia-Ortiz, 904 F.3d 102, 109 (1st Cir. 2018); United States v. Hill, 890\\n\\n\\n\\n\\n 24\\n The defendants offer two additional arguments in support of their contention that\\nHobbs Act robbery is not a crime of violence. The defendants first assert that a threat of\\ninjury does not require the threat of violent force, such as when a perpetrator threatens\\nanother’s property by throwing paint on someone’s house. The defendants also assert that\\nbecause Hobbs Act robbery is akin to common law robbery, Hobbs Act robbery does not\\ncontain the required force element. After reviewing these arguments, we conclude that\\nneither has merit.\\n\\n 37\\n\\fF.3d 51, 60 (2d Cir. 2018); United States v. Rivera, 847 F.3d 847, 849 (7th Cir. 2017); In\\n\\nre Fleur, 824 F.3d 1337, 1340–41 (11th Cir. 2016).\\n\\n 3.\\n\\n Finally, the capital defendants challenge their Section 924(c) convictions predicated\\n\\non their VICAR convictions for kidnapping under Virginia law. They argue that because\\n\\nkidnapping under Virginia law can be committed by deception, the offense is not\\n\\ncategorically a crime of violence under the force clause. See Va. Code § 18.2-47(A). 25 We\\n\\nagree.\\n\\n Virginia’s kidnapping statute generally prohibits an individual from seizing or\\n\\ntaking another person “by force, intimidation, or deception” with the intent to deprive that\\n\\nperson of his or her liberty. Va. Code § 18.2-47(A). Although the statute describes various\\n\\nways that an individual may commit the act of kidnapping, namely, by force, intimidation,\\n\\nor deception, these alternatives represent various means of committing the crime, not\\n\\nalternative elements of the crime. See Fuertes, 805 F.3d at 498 (“[A]lthough § 1591(a)\\n\\nrefers to alternative means of commission, it contains a single, indivisible set of elements,\\n\\nand the categorical approach applies.”). Accordingly, we conclude that Virginia Code §\\n\\n18.2-47(A) is indivisible, requiring application of the categorical approach. See id.\\n\\n\\n\\n 25\\n The capital defendants also assert that kidnapping under Virginia law does not\\nqualify as a crime of violence under the 924(c) residual clause, because that clause is\\nunconstitutional in light of the Supreme Court’s holding in Johnson II, 135 S. Ct. 2551.\\nAs we explained above, the Supreme Court recently has concluded that the 924(c) residual\\nclause is unconstitutionally vague. Davis, 139 S. Ct. at 2336. Accordingly, our\\ndetermination explained below, that kidnapping under Virginia law does not qualify as a\\ncrime of violence offense under the force clause, is dispositive.\\n 38\\n\\f A review of the statute’s language and the decisions by Virginia’s appellate courts\\n\\ninterpreting that language indicates that the offense may be committed in a non-violent\\n\\nmanner through deceptive means. 26 Va. Code § 18.2-47; Jerman v. Dir. of the Dep’t of\\n\\nCorrs., 593 S.E.2d 255, 259 (Va. 2004) (affirming a kidnapping conviction when the\\n\\nevidence proved that one of the defendant’s confederates convinced the victim to come\\n\\nwith her under the ruse of selling illegal narcotics when the defendant’s true intent was to\\n\\nharm the victim); Kent v. Commonwealth, 183 S.E. 177, 177–78 (Va. 1936) (affirming a\\n\\nconviction for kidnapping committed by fraud and coercion and without the use of force\\n\\nor restraint). Because Virginia defines kidnapping in a manner that allows for both violent\\n\\nand nonviolent means of committing the offense, the statute “sweep[s] more broadly” than\\n\\nthe force clause’s requirement that the offense be committed with the use, or attempted or\\n\\nthreatened use, of physical force. See Descamps, 570 U.S. at 261; 18 U.S.C. §\\n\\n924(c)(3)(A). Thus, we conclude that kidnapping under Virginia law does not qualify\\n\\ncategorically as a crime of violence under the force clause. We therefore vacate the capital\\n\\ndefendants’ Section 924(c) convictions stemming from the commission of VICAR based\\n\\non kidnapping under Virginia law.\\n\\n G.\\n\\n\\n\\n\\n 26\\n To determine if a state conviction qualifies as a crime of violence, we look to the\\nlanguage of the statute as well as decisions by the state’s courts. See United States v.\\nDoctor, 842 F.3d 306, 312 (4th Cir. 2016).\\n 39\\n\\f Finally, the capital defendants argue that the fines imposed on each of them should\\n\\nbe vacated as substantively unreasonable. 27 We disagree.\\n\\n We review the substantive reasonableness of any part of a sentence for abuse of\\n\\ndiscretion. Gall v. United States, 552 U.S. 38, 51 (2007). After considering the factors\\n\\noutlined in Sentencing Guidelines Section 5E1.2(d) and concluding that a fine was\\n\\nwarranted, the district court imposed on each defendant a $5,000 fine, a sum well below\\n\\nthe advisory guidelines range. 28 See U.S.S.G. § 5E1.2. The defendants have not offered\\n\\nany evidence rebutting the presumption of reasonableness that we apply to the district\\n\\ncourt’s below-Guidelines imposition of fines. United States v. Perez-Jiminez, 654 F.3d\\n\\n1136, 1146–47 (10th Cir. 2011). Therefore, we hold that the court did not abuse its\\n\\ndiscretion in imposing those fines in this case.\\n\\n\\n\\n III.\\n\\n For these reasons, we affirm in part the district court’s judgment, vacate the capital\\n\\ndefendants’ Section 924(c) convictions predicated on their VICAR convictions for\\n\\nkidnapping under Virginia law, and remand for resentencing of those capital defendants,\\n\\nnamely, Mathis, Shantai, Mersadies, and Kweli.\\n\\n\\n 27\\n The defendants do not challenge the assessment of their fines as procedurally\\nunreasonable.\\n 28\\n Kweli is the only capital defendant whose sentencing transcript was included in\\nthe record before this Court. Because the defendants have not raised an objection to the\\ncompleteness of the record, our analysis of the substantive reasonableness of the fines\\nassessed against each defendant stems from our review of Kweli’s sentencing transcript\\nonly.\\n 40\\n\\f AFFIRMED IN PART,\\n VACATED IN PART,\\n AND REMANDED\\n\\n\\n\\n\\n41\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2970,"cells":{"id":{"kind":"number","value":4635710,"string":"4,635,710"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"John Priester, Jr. v. JP Morgan Chase Bank"},"decision_date":{"kind":"string","value":"2019-07-01"},"docket_number":{"kind":"string","value":"18-40127"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before JOLLY, COSTA, and HO, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"GREGG COSTA, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"REVISED July 1, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-40127\\n June 26, 2019\\n Summary Calendar Lyle W. Cayce\\n Clerk\\n\\nJOHN PRIESTER, JR.; BETTIE PRIESTER,\\n\\n Plaintiffs - Appellants\\n\\nv.\\n\\nJP MORGAN CHASE BANK, N.A.; JP MORGAN CHASE & COMPANY;\\nLONG BEACH MORTGAGE COMPANY; ALAMO TITLE COMPANY;\\nCRISTOBAL M. GALINDO, P.C.; GALINDO LAW & TITLE; GALINDO\\nCRISTOBAL TITLE SERVICES; CRISTOBAL M. GALINDO; KRISTEN L.\\nTINSLEY,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Texas\\n\\n\\nBefore JOLLY, COSTA, and HO, Circuit Judges.\\nGREGG COSTA, Circuit Judge:\\n Erie guesses are just that—guesses. Hopefully we get them right, but\\nsometimes we get them wrong. When our prediction about what a state\\nsupreme court would do turns out to be wrong years after the federal litigation\\n\\f No. 18-40127\\nends, can the losing litigant reopen the federal case? This appeal poses that\\nquestion.\\n John and Bettie Priester were on the losing end of what turned out to be\\nan incorrect Erie guess. Back in 2013, we affirmed the dismissal of the\\nPriesters’ case, holding that a four-year statute of limitations barred their\\nattempt to avoid a home-equity lien under section 50(a)(6) of the Texas\\nConstitution. Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667, 671, 674\\n(5th Cir. 2013). But three years later, the Supreme Court of Texas interpreted\\nTexas law differently. Wood v. HSBC Bank USA, N.A., 505 S.W.3d 542, 547\\n(Tex. 2016) (“[N]o statute of limitations applies to an action to quiet title on an\\ninvalid home-equity lien.”). Wood “made plain that our ‘Erie guess’ in Priester\\nwas wrong.” Alexander v. Wells Fargo Bank, N.A., 867 F.3d 593, 600 (5th Cir.\\n2017).\\n More than a year after Wood, the Priesters filed a Rule 60(b)(6) motion\\nto vacate the final judgment dismissing their claims. They cited the\\nclarification of Texas law as the justification. The district court denied the\\nmotion, a decision we review for abuse of discretion. Hall v. Louisiana, 884\\nF.3d 546, 549 (5th Cir. 2018).\\n There was none. For one thing, we see no abuse of discretion in the\\ndistrict court’s reasoning that the Priesters unreasonably delayed by waiting\\nuntil fifteen months after Wood to try and vacate the judgment. See FED. R.\\nCIV. P. 60(c) (“A motion made under Rule 60(b) must be made within a\\nreasonable time . . . .”).\\n We need not belabor the timeliness question, however, because the\\ndistrict court had another straightforward reason to deny the motion. Relief\\nunder Rule 60(b)(6)—the catch-all provision of 60(b), and the one in which the\\nPriesters seek refuge—is appropriate only in “extraordinary circumstances.”\\nU.S. ex rel. Garibaldi v. Orleans Parish Sch. Bd., 397 F.3d 334, 337 (5th Cir.\\n 2\\n\\f No. 18-40127\\n2005). The “general rule” is that a change in decisional law “will not normally\\nconstitute an extraordinary circumstance, and cannot alone be grounds for\\nrelief from a final judgment pursuant to Rule 60(b).” Batts v. Tow-Motor\\nForklift Co., 66 F.3d 743, 748, 750 (5th Cir. 1995) (noting this general rule “has\\ngreater force in an Erie case”). That principle reflects that the interest in\\ngetting the law “right” must sometimes give way to an even stronger interest\\nin finality. See Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981)\\n(emphasizing “the great desirability of preserving the principle of the finality\\nof judgments”). Consider the implications if a “change in law” automatically\\nallowed cases to be reopened. If that were the law, then anytime the Supreme\\nCourt resolved a circuit split courts that had taken the rejected position would\\nhave to restart long-resolved cases. See Garibaldi, 397 F.3d at 338.\\n That being said, we have recognized that there may be situations when\\na change in decisional law combines with other factors to tip the “delicate\\nbalance between the sanctity of final judgments . . . and the incessant\\ncommand of the court’s conscience that justice be done in light of all the facts.”\\nBankers Mortg. Co. v. United States, 423 F.2d 73, 77 (5th Cir. 1970); see Batts,\\n66 F.3d at 748 n.6. It is not apparent, however, that we have ever found such\\na situation. This is not one. Since the dismissal of the Priesters’ attempt to\\nquiet title, the bank has obtained a foreclosure order. The Priesters are\\nfighting it, and they are worried that the earlier federal judgment against them\\nmay pose a res judicata problem. But res judicata is the ordinary result of a\\nfinal judgment, not an extraordinary circumstance warranting relief from one.\\n The Priesters also argue that our decision ordering Rule 59(e) relief\\nbased on Wood, see Alexander, 867 F.3d at 603-04, evinced a newfound\\nopenness to postjudgment relief following a change in law. But they confuse\\nmotions to alter a judgment under Rule 59(e) with motions to vacate a\\njudgment under Rule 60(b). Rule 59(e) motions, which must be filed much\\n 3\\n\\f No. 18-40127\\ncloser in time to the entry of judgment (within 28 days), are not “controlled by\\nthe same exacting substantive requirements” as Rule 60(b) motions. Lavespere\\nv. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173–74 (5th Cir. 1990).\\nAmending a judgment because of “an intervening change in controlling law” is\\nwell within the scope of Rule 59(e). Demahy v. Schwarz Pharma, Inc., 702 F.3d\\n177, 182 (5th Cir. 2012). Vacating a judgment for that reason is a much bigger\\nthing and will not usually be a justified exercise of a court’s limited Rule 60(b)\\nauthority.\\n * * *\\n The judgment is AFFIRMED.\\n\\n\\n\\n\\n 4\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4412963/\", \"author_raw\": \"GREGG COSTA, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"JOLLY"},"judge2":{"kind":"string","value":"COSTA"},"judge3":{"kind":"string","value":"HO"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"JOLLY\": \", Circuit\", \"COSTA\": \", Circuit\", \"HO\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4635710/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: John Priester, Jr. v. JP Morgan Chase Bank\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-01\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nREVISED July 1, 2019\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 18-40127\n June 26, 2019\n Summary Calendar Lyle W. Cayce\n Clerk\n\nJOHN PRIESTER, JR.; BETTIE PRIESTER,\n\n Plaintiffs - Appellants\n\nv.\n\nJP MORGAN CHASE BANK, N.A.; JP MORGAN CHASE & COMPANY;\nLONG BEACH MORTGAGE COMPANY; ALAMO TITLE COMPANY;\nCRISTOBAL M. GALINDO, P.C.; GALINDO LAW & TITLE; GALINDO\nCRISTOBAL TITLE SERVICES; CRISTOBAL M. GALINDO; KRISTEN L.\nTINSLEY,\n\n Defendants - Appellees\n\n\n\n\n Appeal from the United States District Court\n for the Eastern District of Texas\n\n\nBefore JOLLY, COSTA, and HO, Circuit Judges.\nGREGG COSTA, Circuit Judge:\n Erie guesses are just that—guesses. Hopefully we get them right, but\nsometimes we get them wrong. When our prediction about what a state\nsupreme court would do turns out to be wrong years after the federal litigation\n\f No. 18-40127\nends, can the losing litigant reopen the federal case? This appeal poses that\nquestion.\n John and Bettie Priester were on the losing end of what turned out to be\nan incorrect Erie guess. Back in 2013, we affirmed the dismissal of the\nPriesters’ case, holding that a four-year statute of limitations barred their\nattempt to avoid a home-equity lien under section 50(a)(6) of the Texas\nConstitution. Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667, 671, 674\n(5th Cir. 2013). But three years later, the Supreme Court of Texas interpreted\nTexas law differently. Wood v. HSBC Bank USA, N.A., 505 S.W.3d 542, 547\n(Tex. 2016) (“[N]o statute of limitations applies to an action to quiet title on an\ninvalid home-equity lien.”). Wood “made plain that our ‘Erie guess’ in Priester\nwas wrong.” Alexander v. Wells Fargo Bank, N.A., 867 F.3d 593, 600 (5th Cir.\n2017).\n More than a year after Wood, the Priesters filed a Rule 60(b)(6) motion\nto vacate the final judgment dismissing their claims. They cited the\nclarification of Texas law as the justification. The district court denied the\nmotion, a decision we review for abuse of discretion. Hall v. Louisiana, 884\nF.3d 546, 549 (5th Cir. 2018).\n There was none. For one thing, we see no abuse of discretion in the\ndistrict court’s reasoning that the Priesters unreasonably delayed by waiting\nuntil fifteen months after Wood to try and vacate the judgment. See FED. R.\nCIV. P. 60(c) (“A motion made under Rule 60(b) must be made within a\nreasonable time . . . .”).\n We need not belabor the timeliness question, however, because the\ndistrict court had another straightforward reason to deny the motion. Relief\nunder Rule 60(b)(6)—the catch-all provision of 60(b), and the one in which the\nPriesters seek refuge—is appropriate only in “extraordinary circumstances.”\nU.S. ex rel. Garibaldi v. Orleans Parish Sch. Bd., 397 F.3d 334, 337 (5th Cir.\n 2\n\f No. 18-40127\n2005). The “general rule” is that a change in decisional law “will not normally\nconstitute an extraordinary circumstance, and cannot alone be grounds for\nrelief from a final judgment pursuant to Rule 60(b).” Batts v. Tow-Motor\nForklift Co., 66 F.3d 743, 748, 750 (5th Cir. 1995) (noting this general rule “has\ngreater force in an Erie case”). That principle reflects that the interest in\ngetting the law “right” must sometimes give way to an even stronger interest\nin finality. See Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981)\n(emphasizing “the great desirability of preserving the principle of the finality\nof judgments”). Consider the implications if a “change in law” automatically\nallowed cases to be reopened. If that were the law, then anytime the Supreme\nCourt resolved a circuit split courts that had taken the rejected position would\nhave to restart long-resolved cases. See Garibaldi, 397 F.3d at 338.\n That being said, we have recognized that there may be situations when\na change in decisional law combines with other factors to tip the “delicate\nbalance between the sanctity of final judgments . . . and the incessant\ncommand of the court’s conscience that justice be done in light of all the facts.”\nBankers Mortg. Co. v. United States, 423 F.2d 73, 77 (5th Cir. 1970); see Batts,\n66 F.3d at 748 n.6. It is not apparent, however, that we have ever found such\na situation. This is not one. Since the dismissal of the Priesters’ attempt to\nquiet title, the bank has obtained a foreclosure order. The Priesters are\nfighting it, and they are worried that the earlier federal judgment against them\nmay pose a res judicata problem. But res judicata is the ordinary result of a\nfinal judgment, not an extraordinary circumstance warranting relief from one.\n The Priesters also argue that our decision ordering Rule 59(e) relief\nbased on Wood, see Alexander, 867 F.3d at 603-04, evinced a newfound\nopenness to postjudgment relief following a change in law. But they confuse\nmotions to alter a judgment under Rule 59(e) with motions to vacate a\njudgment under Rule 60(b). Rule 59(e) motions, which must be filed much\n 3\n\f No. 18-40127\ncloser in time to the entry of judgment (within 28 days), are not “controlled by\nthe same exacting substantive requirements” as Rule 60(b) motions. Lavespere\nv. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173–74 (5th Cir. 1990).\nAmending a judgment because of “an intervening change in controlling law” is\nwell within the scope of Rule 59(e). Demahy v. Schwarz Pharma, Inc., 702 F.3d\n177, 182 (5th Cir. 2012). Vacating a judgment for that reason is a much bigger\nthing and will not usually be a justified exercise of a court’s limited Rule 60(b)\nauthority.\n * * *\n The judgment is AFFIRMED.\n\n\n\n\n 4\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: John Priester, Jr. v. JP Morgan Chase Bank\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-01\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nREVISED July 1, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-40127\\n June 26, 2019\\n Summary Calendar Lyle W. Cayce\\n Clerk\\n\\nJOHN PRIESTER, JR.; BETTIE PRIESTER,\\n\\n Plaintiffs - Appellants\\n\\nv.\\n\\nJP MORGAN CHASE BANK, N.A.; JP MORGAN CHASE & COMPANY;\\nLONG BEACH MORTGAGE COMPANY; ALAMO TITLE COMPANY;\\nCRISTOBAL M. GALINDO, P.C.; GALINDO LAW & TITLE; GALINDO\\nCRISTOBAL TITLE SERVICES; CRISTOBAL M. GALINDO; KRISTEN L.\\nTINSLEY,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Texas\\n\\n\\nBefore JOLLY, COSTA, and HO, Circuit Judges.\\nGREGG COSTA, Circuit Judge:\\n Erie guesses are just that—guesses. Hopefully we get them right, but\\nsometimes we get them wrong. When our prediction about what a state\\nsupreme court would do turns out to be wrong years after the federal litigation\\n\\f No. 18-40127\\nends, can the losing litigant reopen the federal case? This appeal poses that\\nquestion.\\n John and Bettie Priester were on the losing end of what turned out to be\\nan incorrect Erie guess. Back in 2013, we affirmed the dismissal of the\\nPriesters’ case, holding that a four-year statute of limitations barred their\\nattempt to avoid a home-equity lien under section 50(a)(6) of the Texas\\nConstitution. Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667, 671, 674\\n(5th Cir. 2013). But three years later, the Supreme Court of Texas interpreted\\nTexas law differently. Wood v. HSBC Bank USA, N.A., 505 S.W.3d 542, 547\\n(Tex. 2016) (“[N]o statute of limitations applies to an action to quiet title on an\\ninvalid home-equity lien.”). Wood “made plain that our ‘Erie guess’ in Priester\\nwas wrong.” Alexander v. Wells Fargo Bank, N.A., 867 F.3d 593, 600 (5th Cir.\\n2017).\\n More than a year after Wood, the Priesters filed a Rule 60(b)(6) motion\\nto vacate the final judgment dismissing their claims. They cited the\\nclarification of Texas law as the justification. The district court denied the\\nmotion, a decision we review for abuse of discretion. Hall v. Louisiana, 884\\nF.3d 546, 549 (5th Cir. 2018).\\n There was none. For one thing, we see no abuse of discretion in the\\ndistrict court’s reasoning that the Priesters unreasonably delayed by waiting\\nuntil fifteen months after Wood to try and vacate the judgment. See FED. R.\\nCIV. P. 60(c) (“A motion made under Rule 60(b) must be made within a\\nreasonable time . . . .”).\\n We need not belabor the timeliness question, however, because the\\ndistrict court had another straightforward reason to deny the motion. Relief\\nunder Rule 60(b)(6)—the catch-all provision of 60(b), and the one in which the\\nPriesters seek refuge—is appropriate only in “extraordinary circumstances.”\\nU.S. ex rel. Garibaldi v. Orleans Parish Sch. Bd., 397 F.3d 334, 337 (5th Cir.\\n 2\\n\\f No. 18-40127\\n2005). The “general rule” is that a change in decisional law “will not normally\\nconstitute an extraordinary circumstance, and cannot alone be grounds for\\nrelief from a final judgment pursuant to Rule 60(b).” Batts v. Tow-Motor\\nForklift Co., 66 F.3d 743, 748, 750 (5th Cir. 1995) (noting this general rule “has\\ngreater force in an Erie case”). That principle reflects that the interest in\\ngetting the law “right” must sometimes give way to an even stronger interest\\nin finality. See Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981)\\n(emphasizing “the great desirability of preserving the principle of the finality\\nof judgments”). Consider the implications if a “change in law” automatically\\nallowed cases to be reopened. If that were the law, then anytime the Supreme\\nCourt resolved a circuit split courts that had taken the rejected position would\\nhave to restart long-resolved cases. See Garibaldi, 397 F.3d at 338.\\n That being said, we have recognized that there may be situations when\\na change in decisional law combines with other factors to tip the “delicate\\nbalance between the sanctity of final judgments . . . and the incessant\\ncommand of the court’s conscience that justice be done in light of all the facts.”\\nBankers Mortg. Co. v. United States, 423 F.2d 73, 77 (5th Cir. 1970); see Batts,\\n66 F.3d at 748 n.6. It is not apparent, however, that we have ever found such\\na situation. This is not one. Since the dismissal of the Priesters’ attempt to\\nquiet title, the bank has obtained a foreclosure order. The Priesters are\\nfighting it, and they are worried that the earlier federal judgment against them\\nmay pose a res judicata problem. But res judicata is the ordinary result of a\\nfinal judgment, not an extraordinary circumstance warranting relief from one.\\n The Priesters also argue that our decision ordering Rule 59(e) relief\\nbased on Wood, see Alexander, 867 F.3d at 603-04, evinced a newfound\\nopenness to postjudgment relief following a change in law. But they confuse\\nmotions to alter a judgment under Rule 59(e) with motions to vacate a\\njudgment under Rule 60(b). Rule 59(e) motions, which must be filed much\\n 3\\n\\f No. 18-40127\\ncloser in time to the entry of judgment (within 28 days), are not “controlled by\\nthe same exacting substantive requirements” as Rule 60(b) motions. Lavespere\\nv. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173–74 (5th Cir. 1990).\\nAmending a judgment because of “an intervening change in controlling law” is\\nwell within the scope of Rule 59(e). Demahy v. Schwarz Pharma, Inc., 702 F.3d\\n177, 182 (5th Cir. 2012). Vacating a judgment for that reason is a much bigger\\nthing and will not usually be a justified exercise of a court’s limited Rule 60(b)\\nauthority.\\n * * *\\n The judgment is AFFIRMED.\\n\\n\\n\\n\\n 4\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2971,"cells":{"id":{"kind":"number","value":4635818,"string":"4,635,818"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Gloria Ann PALACIOS, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Gloria Palacios"},"decision_date":{"kind":"string","value":"2019-07-01"},"docket_number":{"kind":"string","value":"17-10376"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Smith, Wiener, Elrod\", \"parties\": \"\", \"opinions\": [{\"author\": \"JERRY E. SMITH, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-10376 Document: 00515017967 Page: 1 Date Filed: 07/01/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 17-10376 July 1, 2019\\n Lyle W. Cayce\\n Clerk\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff–Appellee,\\n\\nversus\\n\\nGLORIA ANN PALACIOS,\\n\\n Defendant–Appellant.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\n\\n\\nBefore SMITH, WIENER, and ELROD, Circuit Judges.\\nJERRY E. SMITH, Circuit Judge:\\n\\n Gloria Palacios pleaded guilty of conspiracy to possess with intent to dis-\\ntribute a controlled substance. After the district court dismissed her untimely\\ndirect appeal, Palacios moved for relief per 28 U.S.C. § 2255 (2012), contending,\\ninter alia, that trial counsel had rendered ineffective assistance because of a\\nconflict of interest. The court denied that motion, declining to hold a hearing\\non the conflict-of-interest claim. Finding no error, we affirm.\\n\\f Case: 17-10376 Document: 00515017967 Page: 2 Date Filed: 07/01/2019\\n\\n\\n No. 17-10376\\n\\n I.\\n In September 2015, Palacios was indicted in the Northern District of\\nTexas for conspiracy to possess with intent to distribute fifty grams or more of\\nmethamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 846.\\nPalacios was represented by Mark Fernandez. According to Palacios, her\\ncousin Francisco “Pancho” Gallegos—who was later indicted in the Northern\\nDistrict for his role in a related drug conspiracy—hired Fernandez to represent\\nher. Palacios claims that she was “personally present” when Gallegos “deliv-\\nered cash to her attorney for future representation.” She also asserts that Gal-\\nlegos transferred real property to Fernandez as further payment for his repre-\\nsentation of Palacios.\\n\\n On October 16, 2015, the district court held a rearraignment hearing, at\\nwhich Palacios acknowledged, under oath, that, inter alia, (1) she was satisfied\\nwith Fernandez’s legal representation, (2) she had no complaints whatsoever\\nwith any actions Fernandez had taken or failed to take, and (3) her decision to\\nplead guilty was knowing and voluntary. The district court accepted her guilty\\nplea, finding that Palacios was “fully competent and capable of entering an\\ninformed plea, and that her plea of guilty . . . [was] a knowing and voluntary\\nplea supported by an independent basis in fact containing the essential ele-\\nments of that offense, and that such plea did not result from force, threats, or\\npromises.”\\n\\n In preparation for sentencing, Palacios and Fernandez met with the\\nprobation officer. During the meeting Palacios repeatedly implicated Gallegos\\nas the organizer of the conspiracy. Fernandez did not object or otherwise\\nattempt to interfere. Following the interview, the probation officer declined to\\napply the three-level reduction for acceptance of responsibility, finding that\\nPalacios had minimized her role in the offense throughout the interview.\\n\\n\\n 2\\n\\f Case: 17-10376 Document: 00515017967 Page: 3 Date Filed: 07/01/2019\\n\\n\\n No. 17-10376\\n\\n In February 2016, the district court sentenced Palacios to 480 months’\\nimprisonment and four years’ supervised release. At the sentencing hearing,\\nthe court informed Palacios that she had “the right to make any statement or\\npresentation . . . on the subject of mitigation”—i.e., to speak on any subject that\\nshe felt the court should be aware of when determining what sentence to\\nimpose. Palacios stated,\\n Your Honor, my name is Gloria Palacios. I’m from Dallas,\\n Texas, and I just want to say that I’m sorry for any inconvenience\\n I’ve caused. I wasn’t emotionally and financially stable at the time\\n the situation happened, and I just ask that you give me another\\n opportunity to be with my kids and my family, and I’m sorry for\\n everything. Thank you.\\nPalacios made no mention of her counsel’s alleged conflict.\\n\\n After sentencing, Palacios sent Fernandez a letter expressing a desire to\\nterminate him as counsel. The letter made no mention of any conflict of inter-\\nest. Palacios then filed an untimely direct appeal with this court. We issued\\ntwo orders. First, “we remand[ed] . . . for a determination whether the un-\\ntimely filing of the notice of appeal was due to excusable neglect or good cause.”\\nSecond, we granted Fernandez’s motion to withdraw as Palacios’s counsel. The\\ndistrict court determined that Palacios had failed to show excusable neglect or\\ngood cause.\\n\\n Palacios then filed a § 2255 motion asserting four grounds. First, that\\ntrial counsel provided ineffective assistance of counsel (“IAC”) by failing ade-\\nquately to explain relevant conduct and the use of that conduct at sentencing.\\nSecond, that Fernandez provided IAC at sentencing by failing to challenge\\nvarious enhancements recommended in the presentence report (“PSR”). Third,\\nthat counsel provided IAC because he labored under a conflict of interest. And\\nfourth, that Fernandez provided IAC by failing to file a direct appeal, despite\\nbeing instructed to do so. The district court denied Palacios’s first three claims\\n\\n 3\\n\\f Case: 17-10376 Document: 00515017967 Page: 4 Date Filed: 07/01/2019\\n\\n\\n No. 17-10376\\n\\nwithout a hearing, finding that they were meritless, but held a hearing on the\\nfourth. 1\\n\\n At the evidentiary hearing, Palacios’s court-appointed attorney, Danny\\nBurns, called her to testify. The court permitted Burns to ask Palacios several\\nquestions regarding the circumstances of Fernandez’s hiring as well as his\\nalleged conflict of interest, even though the topic was arguably outside the\\nscope of the hearing. Palacios was also permitted to testify concerning her\\nsupposed desire to cooperate further with the government and Fernandez’s\\nalleged refusal to let her do so.\\n\\n The government called Fernandez, who stated, unequivocally, that Pala-\\ncios never asked him to file an appeal. Although permitted to cross-examine\\nFernandez, Burns declined to ask him any questions concerning the circum-\\nstances of his hiring or his alleged conflict of interest, despite the court’s earlier\\nwillingness to allow Burns to proceed on a similar line of questioning.\\n\\n The district court affirmed its denial of the first three claims and denied\\nthe fourth as well, determining that it, too, was without merit. The court de-\\nclined to grant a certificate of appealability (“COA”).\\n\\n Palacios sought from this court a COA on her conflict-of-interest and\\nfailure-to-appeal claims. We granted a COA on the conflict-of-interest claim\\nonly, concluding that Palacios had failed to make “a showing of debatable\\n\\n\\n 1 As part of its response to Palacios’s § 2255 motion, the government included a sworn\\naffidavit from Fernandez, disputing her claims. Concerning his initial retainer by Palacios,\\nFernandez stated, in relevant part,\\n I was retained by Ms. Palacio’s [sic] state attorney who had received a retainer\\n to cover legal services for Ms. Palacios. Since the state attorney does not take\\n federal cases she retained me to represent Ms. Palacios. After visiting Ms.\\n Palacios and her being aware of who hired me, she agreed to my representa-\\n tion. The state attorney has only represented Ms. Palacios and there’s no indi-\\n cation that she ever represented any co-defendants associated with Ms.\\n Palacios.\\n 4\\n\\f Case: 17-10376 Document: 00515017967 Page: 5 Date Filed: 07/01/2019\\n\\n\\n No. 17-10376\\n\\nentitlement to relief” on her failure-to-appeal claim. Palacios appeals pro se.\\n\\n II.\\n “Under the Sixth Amendment, if a defendant has a constitutional right\\nto counsel, he also has a corresponding right to representation that is free from\\nany conflict of interest.” United States v. Infante, 404 F.3d 376, 389 (5th Cir.\\n2005) (citation omitted). IAC claims are generally governed by the standard\\nin Strickland v. Washington, 466 U.S. 668, 687 (1984). That standard “requires\\na showing that counsel’s performance was deficient, in that it fell below an\\nobjective standard of reasonableness, as well as a showing of prejudice, which\\nis defined as a reasonable probability that counsel’s error changed the result\\nof the proceeding.” Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000). When\\na defendant alleges that counsel’s “conflict of interest stem[s] from “multiple\\nrepresentation,” rather than . . . “from a conflict between the attorney’s per-\\nsonal interest and that of his client,” Infante, 404 F.3d at 391 (citation omitted),\\nour analysis is governed by Cuyler v. Sullivan, 446 U.S. 335, 348–50 (1980).\\n\\n To succeed on an IAC claim under Sullivan, a defendant must demon-\\nstrate that his counsel labored under “an actual conflict of interest that ad-\\nversely affected his performance at trial.” Infante, 404 F.3d at 391. This is a\\nfact-intensive inquiry. Id. at 392. “An ‘actual conflict’ exists when defense\\ncounsel is compelled to compromise his or her duty of loyalty or zealous advo-\\ncacy to the accused by choosing between or blending the divergent or competing\\ninterests of a former or current client.” Perillo, 205 F.3d at 781. An “[a]dverse\\neffect may be established with evidence that some plausible alternative\\ndefense strategy or tactic could have been pursued, but was not because of the\\nactual conflict impairing counsel’s performance.” Id. (internal quotation marks\\nand citation omitted).\\n\\n Nonetheless, “the Sullivan standard is not properly read as requiring\\n\\n 5\\n\\f Case: 17-10376 Document: 00515017967 Page: 6 Date Filed: 07/01/2019\\n\\n\\n No. 17-10376\\n\\ninquiry into actual conflict as something separate and apart from adverse\\neffect. An ‘actual conflict,’ for Sixth Amendment purposes, is a conflict of\\ninterest that adversely affects counsel’s performance.” Mickens v. Taylor,\\n535 U.S. 162, 172 n.5 (2002). Ultimately, if a defendant successfully “estab-\\nlishes an actual conflict that adversely affected counsel’s performance,” then\\n“prejudice is presumed without any further inquiry into the effect of the actual\\nconflict on the outcome of the defendant’s trial.” Perillo, 205 F.3d at 781–82.\\n\\n Palacios’s conflict-of-interest claim is analyzed in light of her guilty plea.\\n“A voluntary guilty plea waives all nonjurisdictional defects in the proceedings\\nagainst the defendant.” United States v. Glinsey, 209 F.3d 386, 392 (5th Cir.\\n2000); see also Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983). Moreover,\\n“[s]olemn declarations in open court carry a strong presumption of verity.”\\nBlackledge v. Allison, 431 U.S. 63, 74 (1977). Therefore, “[w]hen a criminal\\ndefendant has solemnly admitted in open court that he is in fact guilty of the\\noffense with which he is charged, he may not thereafter raise independent\\nclaims relating to the deprivation of constitutional rights that occurred prior\\nto the entry of the guilty plea.” United States v. Smallwood, 920 F.2d 1231,\\n1240 (5th Cir. 1991) (citation omitted). This includes all IAC claims “except\\ninsofar as the ineffectiveness is alleged to have rendered the guilty plea invol-\\nuntary.” Glinsey, 209 F.3d at 392.\\n\\n III.\\n “We review the district court’s denial of § 2255 relief de novo, and its\\ndenial of an evidentiary hearing for abuse of discretion.” United States v. Allen,\\n918 F.3d 457, 460 (5th Cir. 2019). “A § 2255 motion requires an evidentiary\\nhearing unless either (1) the movant’s claims are clearly frivolous or based\\nupon unsupported generalizations, or (2) the movant would not be entitled to\\nrelief as a matter of law, even if his factual assertions were true.” Id. (citation\\n\\n 6\\n\\f Case: 17-10376 Document: 00515017967 Page: 7 Date Filed: 07/01/2019\\n\\n\\n No. 17-10376\\n\\nomitted).\\n\\n A.\\n Palacios asserts that Fernandez violated her Sixth Amendment right to\\nconflict-free counsel because he was paid by her cousin Gallegos. 2 Palacios\\nstates that she wished to cooperate with the government by providing informa-\\ntion about her distributor (Gallegos) but that Fernandez refused to allow her\\nto do so. Consequently, Palacios avers, “Fernandez placed his own financial\\ninterest before his client’s . . . liberty interest.”\\n\\n Palacios cites several Supreme Court and Fifth Circuit precedents. She\\ninvokes Infante for the proposition that “[a] conflict [of interest] exists when\\ndefense counsel places himself in a position conducive to divided loyalties.”\\n404 F.3d at 392 (second alteration in original) (citations omitted). Palacios also\\ncites Beets v. Scott, 65 F.3d 1258 (5th Cir. 1995) (en banc), in which we stated\\nthat “prejudice is presumed if the defendant shows that an actual conflict of\\ninterest adversely affected his lawyer’s performance.” Id. at 1265. Finally,\\nPalacios highlights Wood v. Georgia, 450 U.S. 261 (1981), which held that a\\nconflict of interest may arise when an employee is represented by his em-\\nployer’s lawyer, id. at 271–72, particularly if “counsel was influenced in his\\nbasic strategic decisions by the interests of the employer who hired him,” id.\\nat 272. In light of this precedent, Palacios asks us to vacate and remand for\\nan evidentiary hearing.\\n\\n The government makes two responses. First, it contends that “Palacios\\nwaived the conflict-of-interest claim because she pled guilty despite purport-\\n\\n\\n\\n 2 Confusingly, Palacios claims that Gallegos paid Fernandez by transferring real\\nproperty to him, while also contending that Gallegos “went through Angel Mata to pay Mark\\nFernandez.” Mata was initially retained to represent Palacios on unrelated charges in state\\ncourt.\\n 7\\n\\f Case: 17-10376 Document: 00515017967 Page: 8 Date Filed: 07/01/2019\\n\\n\\n No. 17-10376\\n\\nedly knowing of the alleged conflict.” Second, the government maintains that,\\neven assuming arguendo that her claim is not waived, Palacios fails to support\\nit with anything other than conclusional and unsubstantiated allegations.\\n\\n B.\\n The government has the better argument. With respect to waiver, Pala-\\ncios contends that “[b]ut for counsels [sic] unprofessional behavior the result of\\nthe proceedings would have been different [and] she would have pled not\\nguilty.” Her testimony at sentencing and at the § 2255 evidentiary hearing,\\nhowever, belies such a notion. Although given ample opportunity at both\\nhearings, Palacios never asserted that the alleged conflict somehow rendered\\nher guilty plea involuntary.\\n\\n In fact, the record plainly demonstrates that the plea was both knowing\\nand voluntary. As the district court noted in denying Palacios’s § 2255 motion,\\n Movant was placed under oath and, among other things, stated\\n that she understood that she was waiving her right to trial; she\\n was satisfied with her attorney and did not have any complaint\\n whatsoever; her plea was based on actual guilt and was made\\n knowingly, voluntarily, and without pressure or coercion; she did\\n not have any deal, understanding, or agreement and that no one\\n had made any promise to her to induce her to enter a guilty\\n plea; . . . she would not be permitted to withdraw her plea if her\\n sentence was higher than she expected; [and] she committed each\\n element of the offense charged . . . .\\n“[A] defendant ordinarily will not be heard to refute her testimony given at a\\nplea hearing while under oath.” United States v. Cervantes, 132 F.3d 1106,\\n1110 (5th Cir. 1998).\\n\\n A defendant waives a conflict-of-interest claim when he voluntarily\\npleads guilty. United States v. Tijerina, No. 00-41365, 2002 WL 760264, at *1\\n(5th Cir. Apr. 15, 2002) (per curiam) (unpublished). Consequently, the district\\ncourt did not abuse its discretion in denying Palacios a second evidentiary\\n\\n 8\\n\\f Case: 17-10376 Document: 00515017967 Page: 9 Date Filed: 07/01/2019\\n\\n\\n No. 17-10376\\n\\nhearing and did not err in denying her § 2255 motion. 3 The judgment is\\nAFFIRMED.\\n\\n\\n\\n\\n 3 Moreover, we “may affirm . . . on any grounds supported by the record.” Palmer v.\\nWaxahachie Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir. 2009) (citation omitted). Accord-\\ningly, even if Palacios had not waived this issue, our conclusion would be unchanged. When\\n“the movant’s claims are clearly frivolous or based upon unsupported generalizations,” an\\nevidentiary hearing is not required. Allen, 918 F.3d at 460 (citation omitted). Palacios’s\\nallegation that Fernandez labored under a conflict of interest is wholly unsubstantiated.\\n For example, in her § 2255 motion, Palacios claimed that she personally witnessed\\nGallegos deliver cash to Fernandez and transfer title to his house as payment for Fernandez’s\\nrepresentation of Palacios. On appeal, however, Palacios contends that the transaction was\\nactually funneled through her state attorney, Angel Mata. It is therefore unsurprising that\\nthe district court chose to credit the sworn affidavit of Fernandez, who stated that he was\\nretained by Mata because she did not represent federal defendants. Fernandez also stated\\nthat “[Mata] has only represented Ms. Palacios and there’s no indication that she ever repre-\\nsented any co-defendants associated with Ms. Palacios.”\\n Additionally, when Palacios met with the probation office in preparation for sen-\\ntencing, Fernandez was present. Although Palacios repeatedly implicated Gallegos as an\\norganizer of the conspiracy, there is no evidence suggesting that Fernandez prevented Pala-\\ncios from sharing any information with probation or that he attempted to interfere in any\\nway.\\n Lastly, “[s]olemn declarations in open court carry a strong presumption of verity,\\nforming a formidable barrier in any subsequent collateral proceedings.” Cervantes, 132 F.3d\\nat 1110 (internal quotation marks and citation omitted). During her plea colloquy, the dis-\\ntrict court asked Palacios whether she was satisfied with the legal representation she re-\\nceived from Fernandez. She answered, “Yes, sir.” The court also asked whether she had “any\\ncomplaint whatsoever with anything [Fernandez did] or failed to do” while serving as her\\nattorney. Palacios answered, “No, sir.”\\n Considering this evidence, Palacios fails to provide support for her allegation that\\nFernandez labored under “an actual conflict of interest that adversely affected his per-\\nformance at trial.” Infante, 404 F.3d at 391. Therefore, this alternative basis also supports\\na finding that the district court did not abuse its discretion in denying a second evidentiary\\nhearing and did not err in denying Palacios’s § 2255 motion.\\n 9\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4413071/\", \"author_raw\": \"JERRY E. SMITH, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"SMITH"},"judge2":{"kind":"string","value":"WIENER"},"judge3":{"kind":"string","value":"ELROD"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4635818/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Gloria Ann PALACIOS, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-01\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-10376 Document: 00515017967 Page: 1 Date Filed: 07/01/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 17-10376 July 1, 2019\n Lyle W. Cayce\n Clerk\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff–Appellee,\n\nversus\n\nGLORIA ANN PALACIOS,\n\n Defendant–Appellant.\n\n\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n\n\n\n\nBefore SMITH, WIENER, and ELROD, Circuit Judges.\nJERRY E. SMITH, Circuit Judge:\n\n Gloria Palacios pleaded guilty of conspiracy to possess with intent to dis-\ntribute a controlled substance. After the district court dismissed her untimely\ndirect appeal, Palacios moved for relief per 28 U.S.C. § 2255 (2012), contending,\ninter alia, that trial counsel had rendered ineffective assistance because of a\nconflict of interest. The court denied that motion, declining to hold a hearing\non the conflict-of-interest claim. Finding no error, we affirm.\n\f Case: 17-10376 Document: 00515017967 Page: 2 Date Filed: 07/01/2019\n\n\n No. 17-10376\n\n I.\n In September 2015, Palacios was indicted in the Northern District of\nTexas for conspiracy to possess with intent to distribute fifty grams or more of\nmethamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 846.\nPalacios was represented by Mark Fernandez. According to Palacios, her\ncousin Francisco “Pancho” Gallegos—who was later indicted in the Northern\nDistrict for his role in a related drug conspiracy—hired Fernandez to represent\nher. Palacios claims that she was “personally present” when Gallegos “deliv-\nered cash to her attorney for future representation.” She also asserts that Gal-\nlegos transferred real property to Fernandez as further payment for his repre-\nsentation of Palacios.\n\n On October 16, 2015, the district court held a rearraignment hearing, at\nwhich Palacios acknowledged, under oath, that, inter alia, (1) she was satisfied\nwith Fernandez’s legal representation, (2) she had no complaints whatsoever\nwith any actions Fernandez had taken or failed to take, and (3) her decision to\nplead guilty was knowing and voluntary. The district court accepted her guilty\nplea, finding that Palacios was “fully competent and capable of entering an\ninformed plea, and that her plea of guilty . . . [was] a knowing and voluntary\nplea supported by an independent basis in fact containing the essential ele-\nments of that offense, and that such plea did not result from force, threats, or\npromises.”\n\n In preparation for sentencing, Palacios and Fernandez met with the\nprobation officer. During the meeting Palacios repeatedly implicated Gallegos\nas the organizer of the conspiracy. Fernandez did not object or otherwise\nattempt to interfere. Following the interview, the probation officer declined to\napply the three-level reduction for acceptance of responsibility, finding that\nPalacios had minimized her role in the offense throughout the interview.\n\n\n 2\n\f Case: 17-10376 Document: 00515017967 Page: 3 Date Filed: 07/01/2019\n\n\n No. 17-10376\n\n In February 2016, the district court sentenced Palacios to 480 months’\nimprisonment and four years’ supervised release. At the sentencing hearing,\nthe court informed Palacios that she had “the right to make any statement or\npresentation . . . on the subject of mitigation”—i.e., to speak on any subject that\nshe felt the court should be aware of when determining what sentence to\nimpose. Palacios stated,\n Your Honor, my name is Gloria Palacios. I’m from Dallas,\n Texas, and I just want to say that I’m sorry for any inconvenience\n I’ve caused. I wasn’t emotionally and financially stable at the time\n the situation happened, and I just ask that you give me another\n opportunity to be with my kids and my family, and I’m sorry for\n everything. Thank you.\nPalacios made no mention of her counsel’s alleged conflict.\n\n After sentencing, Palacios sent Fernandez a letter expressing a desire to\nterminate him as counsel. The letter made no mention of any conflict of inter-\nest. Palacios then filed an untimely direct appeal with this court. We issued\ntwo orders. First, “we remand[ed] . . . for a determination whether the un-\ntimely filing of the notice of appeal was due to excusable neglect or good cause.”\nSecond, we granted Fernandez’s motion to withdraw as Palacios’s counsel. The\ndistrict court determined that Palacios had failed to show excusable neglect or\ngood cause.\n\n Palacios then filed a § 2255 motion asserting four grounds. First, that\ntrial counsel provided ineffective assistance of counsel (“IAC”) by failing ade-\nquately to explain relevant conduct and the use of that conduct at sentencing.\nSecond, that Fernandez provided IAC at sentencing by failing to challenge\nvarious enhancements recommended in the presentence report (“PSR”). Third,\nthat counsel provided IAC because he labored under a conflict of interest. And\nfourth, that Fernandez provided IAC by failing to file a direct appeal, despite\nbeing instructed to do so. The district court denied Palacios’s first three claims\n\n 3\n\f Case: 17-10376 Document: 00515017967 Page: 4 Date Filed: 07/01/2019\n\n\n No. 17-10376\n\nwithout a hearing, finding that they were meritless, but held a hearing on the\nfourth. 1\n\n At the evidentiary hearing, Palacios’s court-appointed attorney, Danny\nBurns, called her to testify. The court permitted Burns to ask Palacios several\nquestions regarding the circumstances of Fernandez’s hiring as well as his\nalleged conflict of interest, even though the topic was arguably outside the\nscope of the hearing. Palacios was also permitted to testify concerning her\nsupposed desire to cooperate further with the government and Fernandez’s\nalleged refusal to let her do so.\n\n The government called Fernandez, who stated, unequivocally, that Pala-\ncios never asked him to file an appeal. Although permitted to cross-examine\nFernandez, Burns declined to ask him any questions concerning the circum-\nstances of his hiring or his alleged conflict of interest, despite the court’s earlier\nwillingness to allow Burns to proceed on a similar line of questioning.\n\n The district court affirmed its denial of the first three claims and denied\nthe fourth as well, determining that it, too, was without merit. The court de-\nclined to grant a certificate of appealability (“COA”).\n\n Palacios sought from this court a COA on her conflict-of-interest and\nfailure-to-appeal claims. We granted a COA on the conflict-of-interest claim\nonly, concluding that Palacios had failed to make “a showing of debatable\n\n\n 1 As part of its response to Palacios’s § 2255 motion, the government included a sworn\naffidavit from Fernandez, disputing her claims. Concerning his initial retainer by Palacios,\nFernandez stated, in relevant part,\n I was retained by Ms. Palacio’s [sic] state attorney who had received a retainer\n to cover legal services for Ms. Palacios. Since the state attorney does not take\n federal cases she retained me to represent Ms. Palacios. After visiting Ms.\n Palacios and her being aware of who hired me, she agreed to my representa-\n tion. The state attorney has only represented Ms. Palacios and there’s no indi-\n cation that she ever represented any co-defendants associated with Ms.\n Palacios.\n 4\n\f Case: 17-10376 Document: 00515017967 Page: 5 Date Filed: 07/01/2019\n\n\n No. 17-10376\n\nentitlement to relief” on her failure-to-appeal claim. Palacios appeals pro se.\n\n II.\n “Under the Sixth Amendment, if a defendant has a constitutional right\nto counsel, he also has a corresponding right to representation that is free from\nany conflict of interest.” United States v. Infante, 404 F.3d 376, 389 (5th Cir.\n2005) (citation omitted). IAC claims are generally governed by the standard\nin Strickland v. Washington, 466 U.S. 668, 687 (1984). That standard “requires\na showing that counsel’s performance was deficient, in that it fell below an\nobjective standard of reasonableness, as well as a showing of prejudice, which\nis defined as a reasonable probability that counsel’s error changed the result\nof the proceeding.” Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000). When\na defendant alleges that counsel’s “conflict of interest stem[s] from “multiple\nrepresentation,” rather than . . . “from a conflict between the attorney’s per-\nsonal interest and that of his client,” Infante, 404 F.3d at 391 (citation omitted),\nour analysis is governed by Cuyler v. Sullivan, 446 U.S. 335, 348–50 (1980).\n\n To succeed on an IAC claim under Sullivan, a defendant must demon-\nstrate that his counsel labored under “an actual conflict of interest that ad-\nversely affected his performance at trial.” Infante, 404 F.3d at 391. This is a\nfact-intensive inquiry. Id. at 392. “An ‘actual conflict’ exists when defense\ncounsel is compelled to compromise his or her duty of loyalty or zealous advo-\ncacy to the accused by choosing between or blending the divergent or competing\ninterests of a former or current client.” Perillo, 205 F.3d at 781. An “[a]dverse\neffect may be established with evidence that some plausible alternative\ndefense strategy or tactic could have been pursued, but was not because of the\nactual conflict impairing counsel’s performance.” Id. (internal quotation marks\nand citation omitted).\n\n Nonetheless, “the Sullivan standard is not properly read as requiring\n\n 5\n\f Case: 17-10376 Document: 00515017967 Page: 6 Date Filed: 07/01/2019\n\n\n No. 17-10376\n\ninquiry into actual conflict as something separate and apart from adverse\neffect. An ‘actual conflict,’ for Sixth Amendment purposes, is a conflict of\ninterest that adversely affects counsel’s performance.” Mickens v. Taylor,\n535 U.S. 162, 172 n.5 (2002). Ultimately, if a defendant successfully “estab-\nlishes an actual conflict that adversely affected counsel’s performance,” then\n“prejudice is presumed without any further inquiry into the effect of the actual\nconflict on the outcome of the defendant’s trial.” Perillo, 205 F.3d at 781–82.\n\n Palacios’s conflict-of-interest claim is analyzed in light of her guilty plea.\n“A voluntary guilty plea waives all nonjurisdictional defects in the proceedings\nagainst the defendant.” United States v. Glinsey, 209 F.3d 386, 392 (5th Cir.\n2000); see also Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983). Moreover,\n“[s]olemn declarations in open court carry a strong presumption of verity.”\nBlackledge v. Allison, 431 U.S. 63, 74 (1977). Therefore, “[w]hen a criminal\ndefendant has solemnly admitted in open court that he is in fact guilty of the\noffense with which he is charged, he may not thereafter raise independent\nclaims relating to the deprivation of constitutional rights that occurred prior\nto the entry of the guilty plea.” United States v. Smallwood, 920 F.2d 1231,\n1240 (5th Cir. 1991) (citation omitted). This includes all IAC claims “except\ninsofar as the ineffectiveness is alleged to have rendered the guilty plea invol-\nuntary.” Glinsey, 209 F.3d at 392.\n\n III.\n “We review the district court’s denial of § 2255 relief de novo, and its\ndenial of an evidentiary hearing for abuse of discretion.” United States v. Allen,\n918 F.3d 457, 460 (5th Cir. 2019). “A § 2255 motion requires an evidentiary\nhearing unless either (1) the movant’s claims are clearly frivolous or based\nupon unsupported generalizations, or (2) the movant would not be entitled to\nrelief as a matter of law, even if his factual assertions were true.” Id. (citation\n\n 6\n\f Case: 17-10376 Document: 00515017967 Page: 7 Date Filed: 07/01/2019\n\n\n No. 17-10376\n\nomitted).\n\n A.\n Palacios asserts that Fernandez violated her Sixth Amendment right to\nconflict-free counsel because he was paid by her cousin Gallegos. 2 Palacios\nstates that she wished to cooperate with the government by providing informa-\ntion about her distributor (Gallegos) but that Fernandez refused to allow her\nto do so. Consequently, Palacios avers, “Fernandez placed his own financial\ninterest before his client’s . . . liberty interest.”\n\n Palacios cites several Supreme Court and Fifth Circuit precedents. She\ninvokes Infante for the proposition that “[a] conflict [of interest] exists when\ndefense counsel places himself in a position conducive to divided loyalties.”\n404 F.3d at 392 (second alteration in original) (citations omitted). Palacios also\ncites Beets v. Scott, 65 F.3d 1258 (5th Cir. 1995) (en banc), in which we stated\nthat “prejudice is presumed if the defendant shows that an actual conflict of\ninterest adversely affected his lawyer’s performance.” Id. at 1265. Finally,\nPalacios highlights Wood v. Georgia, 450 U.S. 261 (1981), which held that a\nconflict of interest may arise when an employee is represented by his em-\nployer’s lawyer, id. at 271–72, particularly if “counsel was influenced in his\nbasic strategic decisions by the interests of the employer who hired him,” id.\nat 272. In light of this precedent, Palacios asks us to vacate and remand for\nan evidentiary hearing.\n\n The government makes two responses. First, it contends that “Palacios\nwaived the conflict-of-interest claim because she pled guilty despite purport-\n\n\n\n 2 Confusingly, Palacios claims that Gallegos paid Fernandez by transferring real\nproperty to him, while also contending that Gallegos “went through Angel Mata to pay Mark\nFernandez.” Mata was initially retained to represent Palacios on unrelated charges in state\ncourt.\n 7\n\f Case: 17-10376 Document: 00515017967 Page: 8 Date Filed: 07/01/2019\n\n\n No. 17-10376\n\nedly knowing of the alleged conflict.” Second, the government maintains that,\neven assuming arguendo that her claim is not waived, Palacios fails to support\nit with anything other than conclusional and unsubstantiated allegations.\n\n B.\n The government has the better argument. With respect to waiver, Pala-\ncios contends that “[b]ut for counsels [sic] unprofessional behavior the result of\nthe proceedings would have been different [and] she would have pled not\nguilty.” Her testimony at sentencing and at the § 2255 evidentiary hearing,\nhowever, belies such a notion. Although given ample opportunity at both\nhearings, Palacios never asserted that the alleged conflict somehow rendered\nher guilty plea involuntary.\n\n In fact, the record plainly demonstrates that the plea was both knowing\nand voluntary. As the district court noted in denying Palacios’s § 2255 motion,\n Movant was placed under oath and, among other things, stated\n that she understood that she was waiving her right to trial; she\n was satisfied with her attorney and did not have any complaint\n whatsoever; her plea was based on actual guilt and was made\n knowingly, voluntarily, and without pressure or coercion; she did\n not have any deal, understanding, or agreement and that no one\n had made any promise to her to induce her to enter a guilty\n plea; . . . she would not be permitted to withdraw her plea if her\n sentence was higher than she expected; [and] she committed each\n element of the offense charged . . . .\n“[A] defendant ordinarily will not be heard to refute her testimony given at a\nplea hearing while under oath.” United States v. Cervantes, 132 F.3d 1106,\n1110 (5th Cir. 1998).\n\n A defendant waives a conflict-of-interest claim when he voluntarily\npleads guilty. United States v. Tijerina, No. 00-41365, 2002 WL 760264, at *1\n(5th Cir. Apr. 15, 2002) (per curiam) (unpublished). Consequently, the district\ncourt did not abuse its discretion in denying Palacios a second evidentiary\n\n 8\n\f Case: 17-10376 Document: 00515017967 Page: 9 Date Filed: 07/01/2019\n\n\n No. 17-10376\n\nhearing and did not err in denying her § 2255 motion. 3 The judgment is\nAFFIRMED.\n\n\n\n\n 3 Moreover, we “may affirm . . . on any grounds supported by the record.” Palmer v.\nWaxahachie Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir. 2009) (citation omitted). Accord-\ningly, even if Palacios had not waived this issue, our conclusion would be unchanged. When\n“the movant’s claims are clearly frivolous or based upon unsupported generalizations,” an\nevidentiary hearing is not required. Allen, 918 F.3d at 460 (citation omitted). Palacios’s\nallegation that Fernandez labored under a conflict of interest is wholly unsubstantiated.\n For example, in her § 2255 motion, Palacios claimed that she personally witnessed\nGallegos deliver cash to Fernandez and transfer title to his house as payment for Fernandez’s\nrepresentation of Palacios. On appeal, however, Palacios contends that the transaction was\nactually funneled through her state attorney, Angel Mata. It is therefore unsurprising that\nthe district court chose to credit the sworn affidavit of Fernandez, who stated that he was\nretained by Mata because she did not represent federal defendants. Fernandez also stated\nthat “[Mata] has only represented Ms. Palacios and there’s no indication that she ever repre-\nsented any co-defendants associated with Ms. Palacios.”\n Additionally, when Palacios met with the probation office in preparation for sen-\ntencing, Fernandez was present. Although Palacios repeatedly implicated Gallegos as an\norganizer of the conspiracy, there is no evidence suggesting that Fernandez prevented Pala-\ncios from sharing any information with probation or that he attempted to interfere in any\nway.\n Lastly, “[s]olemn declarations in open court carry a strong presumption of verity,\nforming a formidable barrier in any subsequent collateral proceedings.” Cervantes, 132 F.3d\nat 1110 (internal quotation marks and citation omitted). During her plea colloquy, the dis-\ntrict court asked Palacios whether she was satisfied with the legal representation she re-\nceived from Fernandez. She answered, “Yes, sir.” The court also asked whether she had “any\ncomplaint whatsoever with anything [Fernandez did] or failed to do” while serving as her\nattorney. Palacios answered, “No, sir.”\n Considering this evidence, Palacios fails to provide support for her allegation that\nFernandez labored under “an actual conflict of interest that adversely affected his per-\nformance at trial.” Infante, 404 F.3d at 391. Therefore, this alternative basis also supports\na finding that the district court did not abuse its discretion in denying a second evidentiary\nhearing and did not err in denying Palacios’s § 2255 motion.\n 9\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Gloria Ann PALACIOS, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-01\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-10376 Document: 00515017967 Page: 1 Date Filed: 07/01/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 17-10376 July 1, 2019\\n Lyle W. Cayce\\n Clerk\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff–Appellee,\\n\\nversus\\n\\nGLORIA ANN PALACIOS,\\n\\n Defendant–Appellant.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\n\\n\\nBefore SMITH, WIENER, and ELROD, Circuit Judges.\\nJERRY E. SMITH, Circuit Judge:\\n\\n Gloria Palacios pleaded guilty of conspiracy to possess with intent to dis-\\ntribute a controlled substance. After the district court dismissed her untimely\\ndirect appeal, Palacios moved for relief per 28 U.S.C. § 2255 (2012), contending,\\ninter alia, that trial counsel had rendered ineffective assistance because of a\\nconflict of interest. The court denied that motion, declining to hold a hearing\\non the conflict-of-interest claim. Finding no error, we affirm.\\n\\f Case: 17-10376 Document: 00515017967 Page: 2 Date Filed: 07/01/2019\\n\\n\\n No. 17-10376\\n\\n I.\\n In September 2015, Palacios was indicted in the Northern District of\\nTexas for conspiracy to possess with intent to distribute fifty grams or more of\\nmethamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 846.\\nPalacios was represented by Mark Fernandez. According to Palacios, her\\ncousin Francisco “Pancho” Gallegos—who was later indicted in the Northern\\nDistrict for his role in a related drug conspiracy—hired Fernandez to represent\\nher. Palacios claims that she was “personally present” when Gallegos “deliv-\\nered cash to her attorney for future representation.” She also asserts that Gal-\\nlegos transferred real property to Fernandez as further payment for his repre-\\nsentation of Palacios.\\n\\n On October 16, 2015, the district court held a rearraignment hearing, at\\nwhich Palacios acknowledged, under oath, that, inter alia, (1) she was satisfied\\nwith Fernandez’s legal representation, (2) she had no complaints whatsoever\\nwith any actions Fernandez had taken or failed to take, and (3) her decision to\\nplead guilty was knowing and voluntary. The district court accepted her guilty\\nplea, finding that Palacios was “fully competent and capable of entering an\\ninformed plea, and that her plea of guilty . . . [was] a knowing and voluntary\\nplea supported by an independent basis in fact containing the essential ele-\\nments of that offense, and that such plea did not result from force, threats, or\\npromises.”\\n\\n In preparation for sentencing, Palacios and Fernandez met with the\\nprobation officer. During the meeting Palacios repeatedly implicated Gallegos\\nas the organizer of the conspiracy. Fernandez did not object or otherwise\\nattempt to interfere. Following the interview, the probation officer declined to\\napply the three-level reduction for acceptance of responsibility, finding that\\nPalacios had minimized her role in the offense throughout the interview.\\n\\n\\n 2\\n\\f Case: 17-10376 Document: 00515017967 Page: 3 Date Filed: 07/01/2019\\n\\n\\n No. 17-10376\\n\\n In February 2016, the district court sentenced Palacios to 480 months’\\nimprisonment and four years’ supervised release. At the sentencing hearing,\\nthe court informed Palacios that she had “the right to make any statement or\\npresentation . . . on the subject of mitigation”—i.e., to speak on any subject that\\nshe felt the court should be aware of when determining what sentence to\\nimpose. Palacios stated,\\n Your Honor, my name is Gloria Palacios. I’m from Dallas,\\n Texas, and I just want to say that I’m sorry for any inconvenience\\n I’ve caused. I wasn’t emotionally and financially stable at the time\\n the situation happened, and I just ask that you give me another\\n opportunity to be with my kids and my family, and I’m sorry for\\n everything. Thank you.\\nPalacios made no mention of her counsel’s alleged conflict.\\n\\n After sentencing, Palacios sent Fernandez a letter expressing a desire to\\nterminate him as counsel. The letter made no mention of any conflict of inter-\\nest. Palacios then filed an untimely direct appeal with this court. We issued\\ntwo orders. First, “we remand[ed] . . . for a determination whether the un-\\ntimely filing of the notice of appeal was due to excusable neglect or good cause.”\\nSecond, we granted Fernandez’s motion to withdraw as Palacios’s counsel. The\\ndistrict court determined that Palacios had failed to show excusable neglect or\\ngood cause.\\n\\n Palacios then filed a § 2255 motion asserting four grounds. First, that\\ntrial counsel provided ineffective assistance of counsel (“IAC”) by failing ade-\\nquately to explain relevant conduct and the use of that conduct at sentencing.\\nSecond, that Fernandez provided IAC at sentencing by failing to challenge\\nvarious enhancements recommended in the presentence report (“PSR”). Third,\\nthat counsel provided IAC because he labored under a conflict of interest. And\\nfourth, that Fernandez provided IAC by failing to file a direct appeal, despite\\nbeing instructed to do so. The district court denied Palacios’s first three claims\\n\\n 3\\n\\f Case: 17-10376 Document: 00515017967 Page: 4 Date Filed: 07/01/2019\\n\\n\\n No. 17-10376\\n\\nwithout a hearing, finding that they were meritless, but held a hearing on the\\nfourth. 1\\n\\n At the evidentiary hearing, Palacios’s court-appointed attorney, Danny\\nBurns, called her to testify. The court permitted Burns to ask Palacios several\\nquestions regarding the circumstances of Fernandez’s hiring as well as his\\nalleged conflict of interest, even though the topic was arguably outside the\\nscope of the hearing. Palacios was also permitted to testify concerning her\\nsupposed desire to cooperate further with the government and Fernandez’s\\nalleged refusal to let her do so.\\n\\n The government called Fernandez, who stated, unequivocally, that Pala-\\ncios never asked him to file an appeal. Although permitted to cross-examine\\nFernandez, Burns declined to ask him any questions concerning the circum-\\nstances of his hiring or his alleged conflict of interest, despite the court’s earlier\\nwillingness to allow Burns to proceed on a similar line of questioning.\\n\\n The district court affirmed its denial of the first three claims and denied\\nthe fourth as well, determining that it, too, was without merit. The court de-\\nclined to grant a certificate of appealability (“COA”).\\n\\n Palacios sought from this court a COA on her conflict-of-interest and\\nfailure-to-appeal claims. We granted a COA on the conflict-of-interest claim\\nonly, concluding that Palacios had failed to make “a showing of debatable\\n\\n\\n 1 As part of its response to Palacios’s § 2255 motion, the government included a sworn\\naffidavit from Fernandez, disputing her claims. Concerning his initial retainer by Palacios,\\nFernandez stated, in relevant part,\\n I was retained by Ms. Palacio’s [sic] state attorney who had received a retainer\\n to cover legal services for Ms. Palacios. Since the state attorney does not take\\n federal cases she retained me to represent Ms. Palacios. After visiting Ms.\\n Palacios and her being aware of who hired me, she agreed to my representa-\\n tion. The state attorney has only represented Ms. Palacios and there’s no indi-\\n cation that she ever represented any co-defendants associated with Ms.\\n Palacios.\\n 4\\n\\f Case: 17-10376 Document: 00515017967 Page: 5 Date Filed: 07/01/2019\\n\\n\\n No. 17-10376\\n\\nentitlement to relief” on her failure-to-appeal claim. Palacios appeals pro se.\\n\\n II.\\n “Under the Sixth Amendment, if a defendant has a constitutional right\\nto counsel, he also has a corresponding right to representation that is free from\\nany conflict of interest.” United States v. Infante, 404 F.3d 376, 389 (5th Cir.\\n2005) (citation omitted). IAC claims are generally governed by the standard\\nin Strickland v. Washington, 466 U.S. 668, 687 (1984). That standard “requires\\na showing that counsel’s performance was deficient, in that it fell below an\\nobjective standard of reasonableness, as well as a showing of prejudice, which\\nis defined as a reasonable probability that counsel’s error changed the result\\nof the proceeding.” Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000). When\\na defendant alleges that counsel’s “conflict of interest stem[s] from “multiple\\nrepresentation,” rather than . . . “from a conflict between the attorney’s per-\\nsonal interest and that of his client,” Infante, 404 F.3d at 391 (citation omitted),\\nour analysis is governed by Cuyler v. Sullivan, 446 U.S. 335, 348–50 (1980).\\n\\n To succeed on an IAC claim under Sullivan, a defendant must demon-\\nstrate that his counsel labored under “an actual conflict of interest that ad-\\nversely affected his performance at trial.” Infante, 404 F.3d at 391. This is a\\nfact-intensive inquiry. Id. at 392. “An ‘actual conflict’ exists when defense\\ncounsel is compelled to compromise his or her duty of loyalty or zealous advo-\\ncacy to the accused by choosing between or blending the divergent or competing\\ninterests of a former or current client.” Perillo, 205 F.3d at 781. An “[a]dverse\\neffect may be established with evidence that some plausible alternative\\ndefense strategy or tactic could have been pursued, but was not because of the\\nactual conflict impairing counsel’s performance.” Id. (internal quotation marks\\nand citation omitted).\\n\\n Nonetheless, “the Sullivan standard is not properly read as requiring\\n\\n 5\\n\\f Case: 17-10376 Document: 00515017967 Page: 6 Date Filed: 07/01/2019\\n\\n\\n No. 17-10376\\n\\ninquiry into actual conflict as something separate and apart from adverse\\neffect. An ‘actual conflict,’ for Sixth Amendment purposes, is a conflict of\\ninterest that adversely affects counsel’s performance.” Mickens v. Taylor,\\n535 U.S. 162, 172 n.5 (2002). Ultimately, if a defendant successfully “estab-\\nlishes an actual conflict that adversely affected counsel’s performance,” then\\n“prejudice is presumed without any further inquiry into the effect of the actual\\nconflict on the outcome of the defendant’s trial.” Perillo, 205 F.3d at 781–82.\\n\\n Palacios’s conflict-of-interest claim is analyzed in light of her guilty plea.\\n“A voluntary guilty plea waives all nonjurisdictional defects in the proceedings\\nagainst the defendant.” United States v. Glinsey, 209 F.3d 386, 392 (5th Cir.\\n2000); see also Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983). Moreover,\\n“[s]olemn declarations in open court carry a strong presumption of verity.”\\nBlackledge v. Allison, 431 U.S. 63, 74 (1977). Therefore, “[w]hen a criminal\\ndefendant has solemnly admitted in open court that he is in fact guilty of the\\noffense with which he is charged, he may not thereafter raise independent\\nclaims relating to the deprivation of constitutional rights that occurred prior\\nto the entry of the guilty plea.” United States v. Smallwood, 920 F.2d 1231,\\n1240 (5th Cir. 1991) (citation omitted). This includes all IAC claims “except\\ninsofar as the ineffectiveness is alleged to have rendered the guilty plea invol-\\nuntary.” Glinsey, 209 F.3d at 392.\\n\\n III.\\n “We review the district court’s denial of § 2255 relief de novo, and its\\ndenial of an evidentiary hearing for abuse of discretion.” United States v. Allen,\\n918 F.3d 457, 460 (5th Cir. 2019). “A § 2255 motion requires an evidentiary\\nhearing unless either (1) the movant’s claims are clearly frivolous or based\\nupon unsupported generalizations, or (2) the movant would not be entitled to\\nrelief as a matter of law, even if his factual assertions were true.” Id. (citation\\n\\n 6\\n\\f Case: 17-10376 Document: 00515017967 Page: 7 Date Filed: 07/01/2019\\n\\n\\n No. 17-10376\\n\\nomitted).\\n\\n A.\\n Palacios asserts that Fernandez violated her Sixth Amendment right to\\nconflict-free counsel because he was paid by her cousin Gallegos. 2 Palacios\\nstates that she wished to cooperate with the government by providing informa-\\ntion about her distributor (Gallegos) but that Fernandez refused to allow her\\nto do so. Consequently, Palacios avers, “Fernandez placed his own financial\\ninterest before his client’s . . . liberty interest.”\\n\\n Palacios cites several Supreme Court and Fifth Circuit precedents. She\\ninvokes Infante for the proposition that “[a] conflict [of interest] exists when\\ndefense counsel places himself in a position conducive to divided loyalties.”\\n404 F.3d at 392 (second alteration in original) (citations omitted). Palacios also\\ncites Beets v. Scott, 65 F.3d 1258 (5th Cir. 1995) (en banc), in which we stated\\nthat “prejudice is presumed if the defendant shows that an actual conflict of\\ninterest adversely affected his lawyer’s performance.” Id. at 1265. Finally,\\nPalacios highlights Wood v. Georgia, 450 U.S. 261 (1981), which held that a\\nconflict of interest may arise when an employee is represented by his em-\\nployer’s lawyer, id. at 271–72, particularly if “counsel was influenced in his\\nbasic strategic decisions by the interests of the employer who hired him,” id.\\nat 272. In light of this precedent, Palacios asks us to vacate and remand for\\nan evidentiary hearing.\\n\\n The government makes two responses. First, it contends that “Palacios\\nwaived the conflict-of-interest claim because she pled guilty despite purport-\\n\\n\\n\\n 2 Confusingly, Palacios claims that Gallegos paid Fernandez by transferring real\\nproperty to him, while also contending that Gallegos “went through Angel Mata to pay Mark\\nFernandez.” Mata was initially retained to represent Palacios on unrelated charges in state\\ncourt.\\n 7\\n\\f Case: 17-10376 Document: 00515017967 Page: 8 Date Filed: 07/01/2019\\n\\n\\n No. 17-10376\\n\\nedly knowing of the alleged conflict.” Second, the government maintains that,\\neven assuming arguendo that her claim is not waived, Palacios fails to support\\nit with anything other than conclusional and unsubstantiated allegations.\\n\\n B.\\n The government has the better argument. With respect to waiver, Pala-\\ncios contends that “[b]ut for counsels [sic] unprofessional behavior the result of\\nthe proceedings would have been different [and] she would have pled not\\nguilty.” Her testimony at sentencing and at the § 2255 evidentiary hearing,\\nhowever, belies such a notion. Although given ample opportunity at both\\nhearings, Palacios never asserted that the alleged conflict somehow rendered\\nher guilty plea involuntary.\\n\\n In fact, the record plainly demonstrates that the plea was both knowing\\nand voluntary. As the district court noted in denying Palacios’s § 2255 motion,\\n Movant was placed under oath and, among other things, stated\\n that she understood that she was waiving her right to trial; she\\n was satisfied with her attorney and did not have any complaint\\n whatsoever; her plea was based on actual guilt and was made\\n knowingly, voluntarily, and without pressure or coercion; she did\\n not have any deal, understanding, or agreement and that no one\\n had made any promise to her to induce her to enter a guilty\\n plea; . . . she would not be permitted to withdraw her plea if her\\n sentence was higher than she expected; [and] she committed each\\n element of the offense charged . . . .\\n“[A] defendant ordinarily will not be heard to refute her testimony given at a\\nplea hearing while under oath.” United States v. Cervantes, 132 F.3d 1106,\\n1110 (5th Cir. 1998).\\n\\n A defendant waives a conflict-of-interest claim when he voluntarily\\npleads guilty. United States v. Tijerina, No. 00-41365, 2002 WL 760264, at *1\\n(5th Cir. Apr. 15, 2002) (per curiam) (unpublished). Consequently, the district\\ncourt did not abuse its discretion in denying Palacios a second evidentiary\\n\\n 8\\n\\f Case: 17-10376 Document: 00515017967 Page: 9 Date Filed: 07/01/2019\\n\\n\\n No. 17-10376\\n\\nhearing and did not err in denying her § 2255 motion. 3 The judgment is\\nAFFIRMED.\\n\\n\\n\\n\\n 3 Moreover, we “may affirm . . . on any grounds supported by the record.” Palmer v.\\nWaxahachie Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir. 2009) (citation omitted). Accord-\\ningly, even if Palacios had not waived this issue, our conclusion would be unchanged. When\\n“the movant’s claims are clearly frivolous or based upon unsupported generalizations,” an\\nevidentiary hearing is not required. Allen, 918 F.3d at 460 (citation omitted). Palacios’s\\nallegation that Fernandez labored under a conflict of interest is wholly unsubstantiated.\\n For example, in her § 2255 motion, Palacios claimed that she personally witnessed\\nGallegos deliver cash to Fernandez and transfer title to his house as payment for Fernandez’s\\nrepresentation of Palacios. On appeal, however, Palacios contends that the transaction was\\nactually funneled through her state attorney, Angel Mata. It is therefore unsurprising that\\nthe district court chose to credit the sworn affidavit of Fernandez, who stated that he was\\nretained by Mata because she did not represent federal defendants. Fernandez also stated\\nthat “[Mata] has only represented Ms. Palacios and there’s no indication that she ever repre-\\nsented any co-defendants associated with Ms. Palacios.”\\n Additionally, when Palacios met with the probation office in preparation for sen-\\ntencing, Fernandez was present. Although Palacios repeatedly implicated Gallegos as an\\norganizer of the conspiracy, there is no evidence suggesting that Fernandez prevented Pala-\\ncios from sharing any information with probation or that he attempted to interfere in any\\nway.\\n Lastly, “[s]olemn declarations in open court carry a strong presumption of verity,\\nforming a formidable barrier in any subsequent collateral proceedings.” Cervantes, 132 F.3d\\nat 1110 (internal quotation marks and citation omitted). During her plea colloquy, the dis-\\ntrict court asked Palacios whether she was satisfied with the legal representation she re-\\nceived from Fernandez. She answered, “Yes, sir.” The court also asked whether she had “any\\ncomplaint whatsoever with anything [Fernandez did] or failed to do” while serving as her\\nattorney. Palacios answered, “No, sir.”\\n Considering this evidence, Palacios fails to provide support for her allegation that\\nFernandez labored under “an actual conflict of interest that adversely affected his per-\\nformance at trial.” Infante, 404 F.3d at 391. Therefore, this alternative basis also supports\\na finding that the district court did not abuse its discretion in denying a second evidentiary\\nhearing and did not err in denying Palacios’s § 2255 motion.\\n 9\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2972,"cells":{"id":{"kind":"number","value":4635819,"string":"4,635,819"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee v. Elder Rocael TZACIR-GARCIA, Defendant-Appellant"},"name_abbreviation":{"kind":"string","value":"United States v. Elder Tzacir-Garcia"},"decision_date":{"kind":"string","value":"2019-07-01"},"docket_number":{"kind":"string","value":"14-41437"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Jolly, Smith, Graves\", \"parties\": \"\", \"opinions\": [{\"author\": \"E. GRADY JOLLY, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 14-41437 Document: 00515017531 Page: 1 Date Filed: 07/01/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 14-41437 FILED\\n Summary Calendar July 1, 2019\\n Lyle W. Cayce\\n Clerk\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nELDER ROCAEL TZACIR-GARCIA,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\n ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES\\nBefore JOLLY, SMITH, and GRAVES, Circuit Judges.\\nE. GRADY JOLLY, Circuit Judge:\\n In 2014, Elder Rocael Tzacir-Garcia pled guilty to one count of illegal\\nreentry in violation of 8 U.S.C. § 1326(a) and 1326(b)(2). Tzacir-Garcia was\\nsentenced to forty-one months’ imprisonment. He appealed, arguing that the\\ndistrict court committed plain error by concluding that he qualified for a\\nsentencing enhancement under § 1326(b)(2) 1 because of a previous conviction\\n\\n\\n 1 Section 1326(b)(2) provides that any alien “whose removal was subsequent to a\\nconviction for commission of an aggravated felony . . . shall be fined under such title,\\nimprisoned not more than 20 years, or both.”\\n\\f Case: 14-41437 Document: 00515017531 Page: 2 Date Filed: 07/01/2019\\n\\n\\n\\n No. 14-41437\\nfor an aggravated felony, as defined in 8 U.S.C. § 1101 (a)(43). Section\\n1101(a)(43) incorporates the definition of crime of violence used in 18 U.S.C.\\n§ 16(b). We summarily affirmed Tzacir-Garcia’s sentence, concluding that his\\nprior Texas robbery conviction was a crime of violence under § 16(b). United\\nStates v. Tzacir-Garcia, 674 F. App’x 387 (5th Cir. 2017); see Tex. Penal Code\\nAnn. § 29.02(a)(1).\\n The Supreme Court vacated our decision and remanded for us to\\nreconsider in the light of Sessions v. Dimaya, 138 S.Ct. 1204 (2018), which held\\n§ 16(b) was unconstitutionally vague. Alvaro-Velasco v. United States, 138\\nS.Ct. 1977 (2018). At that time, Tzacir-Garcia’s conviction for Texas robbery\\nwas not a crime of violence under § 16(a) because we had held that it lacked as\\nan element the “use, attempted use, or threatened use of physical force.”\\nUnited States v. Burris, 896 F.3d 320 (5th Cir. 2018).\\n Upon remand, we directed the parties to file supplemental briefing.\\nTzacir-Garcia asked that we remand this case for the district court to amend\\nthe judgment to reflect conviction and sentencing under § 1326(b)(1), 2 not\\n§ 1326(b)(2). 3 The United States agreed that we should reform the judgment.\\nSee United States v. Godoy, 890 F.3d 531, 542 (5th Cir. 2018) (reforming\\njudgment to reflect sentencing under § 1326(b)(1) without remanding to the\\ndistrict court).\\n\\n\\n\\n\\n 2 Section 1326(b)(1) provides that any alien “whose removal was subsequent to a\\nconviction for commission of three or more misdemeanors involving drugs, crimes against the\\nperson, or both, or a felony (other than an aggravated felony) . . . shall be fined under Title\\n18, imprisoned not more than 10 years, or both.”\\n 3 While Tzacir-Garcia has completed his sentence, this issue is not moot because a\\nconviction under § 1326(b)(2) has the collateral consequence of rendering an alien\\npermanently inadmissible to the United States. See United States v. Ovalle-Garcia, 868 F.3d\\n313, 314 (5th Cir. 2017).\\n\\n 2\\n\\f Case: 14-41437 Document: 00515017531 Page: 3 Date Filed: 07/01/2019\\n\\n\\n\\n No. 14-41437\\n Since that supplemental briefing was filed, however, the opinion in\\nBurris was withdrawn, and the panel, in the light of Stokeling v. United States,\\n139 S.Ct. 544 (2019), and United States v. Reyes-Contreras, 910 F.3d 169 (5th\\nCir. 2018) (en banc), issued a new opinion holding that Texas robbery requires\\nthe “use, attempted use, or threatened use of physical force” and is therefore a\\ncrime of violence under the Armed Career Criminal Act. United States v.\\nBurris, 920 F.3d 942, 945 (5th Cir. 2019). Accordingly, Tzacir-Garcia’s\\nconviction for Texas robbery is also a crime of violence under § 16(a) and thus\\nan aggravated felony for purposes of § 1326(b)(2). See United States v. Plaza-\\nMontecillo, No. 18-10688, 2019 WL 2406627, at *1 (5th Cir. June 6, 2019) (per\\ncuriam) (unpublished) (holding Texas robbery conviction qualified as an\\naggravated felony). We perceive no error in Tzacir-Garcia’s conviction and\\nsentence under § 1326(b)(2). The judgment of the district court is therefore\\n AFFIRMED.\\n\\n\\n\\n\\n 3\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4413072/\", \"author_raw\": \"E. GRADY JOLLY, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"JOLLY"},"judge2":{"kind":"string","value":"SMITH"},"judge3":{"kind":"string","value":"GRAVES"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4635819/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee v. Elder Rocael TZACIR-GARCIA, Defendant-Appellant\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-01\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 14-41437 Document: 00515017531 Page: 1 Date Filed: 07/01/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n\n No. 14-41437 FILED\n Summary Calendar July 1, 2019\n Lyle W. Cayce\n Clerk\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee\n\nv.\n\nELDER ROCAEL TZACIR-GARCIA,\n\n Defendant - Appellant\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\n ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES\nBefore JOLLY, SMITH, and GRAVES, Circuit Judges.\nE. GRADY JOLLY, Circuit Judge:\n In 2014, Elder Rocael Tzacir-Garcia pled guilty to one count of illegal\nreentry in violation of 8 U.S.C. § 1326(a) and 1326(b)(2). Tzacir-Garcia was\nsentenced to forty-one months’ imprisonment. He appealed, arguing that the\ndistrict court committed plain error by concluding that he qualified for a\nsentencing enhancement under § 1326(b)(2) 1 because of a previous conviction\n\n\n 1 Section 1326(b)(2) provides that any alien “whose removal was subsequent to a\nconviction for commission of an aggravated felony . . . shall be fined under such title,\nimprisoned not more than 20 years, or both.”\n\f Case: 14-41437 Document: 00515017531 Page: 2 Date Filed: 07/01/2019\n\n\n\n No. 14-41437\nfor an aggravated felony, as defined in 8 U.S.C. § 1101 (a)(43). Section\n1101(a)(43) incorporates the definition of crime of violence used in 18 U.S.C.\n§ 16(b). We summarily affirmed Tzacir-Garcia’s sentence, concluding that his\nprior Texas robbery conviction was a crime of violence under § 16(b). United\nStates v. Tzacir-Garcia, 674 F. App’x 387 (5th Cir. 2017); see Tex. Penal Code\nAnn. § 29.02(a)(1).\n The Supreme Court vacated our decision and remanded for us to\nreconsider in the light of Sessions v. Dimaya, 138 S.Ct. 1204 (2018), which held\n§ 16(b) was unconstitutionally vague. Alvaro-Velasco v. United States, 138\nS.Ct. 1977 (2018). At that time, Tzacir-Garcia’s conviction for Texas robbery\nwas not a crime of violence under § 16(a) because we had held that it lacked as\nan element the “use, attempted use, or threatened use of physical force.”\nUnited States v. Burris, 896 F.3d 320 (5th Cir. 2018).\n Upon remand, we directed the parties to file supplemental briefing.\nTzacir-Garcia asked that we remand this case for the district court to amend\nthe judgment to reflect conviction and sentencing under § 1326(b)(1), 2 not\n§ 1326(b)(2). 3 The United States agreed that we should reform the judgment.\nSee United States v. Godoy, 890 F.3d 531, 542 (5th Cir. 2018) (reforming\njudgment to reflect sentencing under § 1326(b)(1) without remanding to the\ndistrict court).\n\n\n\n\n 2 Section 1326(b)(1) provides that any alien “whose removal was subsequent to a\nconviction for commission of three or more misdemeanors involving drugs, crimes against the\nperson, or both, or a felony (other than an aggravated felony) . . . shall be fined under Title\n18, imprisoned not more than 10 years, or both.”\n 3 While Tzacir-Garcia has completed his sentence, this issue is not moot because a\nconviction under § 1326(b)(2) has the collateral consequence of rendering an alien\npermanently inadmissible to the United States. See United States v. Ovalle-Garcia, 868 F.3d\n313, 314 (5th Cir. 2017).\n\n 2\n\f Case: 14-41437 Document: 00515017531 Page: 3 Date Filed: 07/01/2019\n\n\n\n No. 14-41437\n Since that supplemental briefing was filed, however, the opinion in\nBurris was withdrawn, and the panel, in the light of Stokeling v. United States,\n139 S.Ct. 544 (2019), and United States v. Reyes-Contreras, 910 F.3d 169 (5th\nCir. 2018) (en banc), issued a new opinion holding that Texas robbery requires\nthe “use, attempted use, or threatened use of physical force” and is therefore a\ncrime of violence under the Armed Career Criminal Act. United States v.\nBurris, 920 F.3d 942, 945 (5th Cir. 2019). Accordingly, Tzacir-Garcia’s\nconviction for Texas robbery is also a crime of violence under § 16(a) and thus\nan aggravated felony for purposes of § 1326(b)(2). See United States v. Plaza-\nMontecillo, No. 18-10688, 2019 WL 2406627, at *1 (5th Cir. June 6, 2019) (per\ncuriam) (unpublished) (holding Texas robbery conviction qualified as an\naggravated felony). We perceive no error in Tzacir-Garcia’s conviction and\nsentence under § 1326(b)(2). The judgment of the district court is therefore\n AFFIRMED.\n\n\n\n\n 3\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee v. Elder Rocael TZACIR-GARCIA, Defendant-Appellant\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-01\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 14-41437 Document: 00515017531 Page: 1 Date Filed: 07/01/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 14-41437 FILED\\n Summary Calendar July 1, 2019\\n Lyle W. Cayce\\n Clerk\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nELDER ROCAEL TZACIR-GARCIA,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\n ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES\\nBefore JOLLY, SMITH, and GRAVES, Circuit Judges.\\nE. GRADY JOLLY, Circuit Judge:\\n In 2014, Elder Rocael Tzacir-Garcia pled guilty to one count of illegal\\nreentry in violation of 8 U.S.C. § 1326(a) and 1326(b)(2). Tzacir-Garcia was\\nsentenced to forty-one months’ imprisonment. He appealed, arguing that the\\ndistrict court committed plain error by concluding that he qualified for a\\nsentencing enhancement under § 1326(b)(2) 1 because of a previous conviction\\n\\n\\n 1 Section 1326(b)(2) provides that any alien “whose removal was subsequent to a\\nconviction for commission of an aggravated felony . . . shall be fined under such title,\\nimprisoned not more than 20 years, or both.”\\n\\f Case: 14-41437 Document: 00515017531 Page: 2 Date Filed: 07/01/2019\\n\\n\\n\\n No. 14-41437\\nfor an aggravated felony, as defined in 8 U.S.C. § 1101 (a)(43). Section\\n1101(a)(43) incorporates the definition of crime of violence used in 18 U.S.C.\\n§ 16(b). We summarily affirmed Tzacir-Garcia’s sentence, concluding that his\\nprior Texas robbery conviction was a crime of violence under § 16(b). United\\nStates v. Tzacir-Garcia, 674 F. App’x 387 (5th Cir. 2017); see Tex. Penal Code\\nAnn. § 29.02(a)(1).\\n The Supreme Court vacated our decision and remanded for us to\\nreconsider in the light of Sessions v. Dimaya, 138 S.Ct. 1204 (2018), which held\\n§ 16(b) was unconstitutionally vague. Alvaro-Velasco v. United States, 138\\nS.Ct. 1977 (2018). At that time, Tzacir-Garcia’s conviction for Texas robbery\\nwas not a crime of violence under § 16(a) because we had held that it lacked as\\nan element the “use, attempted use, or threatened use of physical force.”\\nUnited States v. Burris, 896 F.3d 320 (5th Cir. 2018).\\n Upon remand, we directed the parties to file supplemental briefing.\\nTzacir-Garcia asked that we remand this case for the district court to amend\\nthe judgment to reflect conviction and sentencing under § 1326(b)(1), 2 not\\n§ 1326(b)(2). 3 The United States agreed that we should reform the judgment.\\nSee United States v. Godoy, 890 F.3d 531, 542 (5th Cir. 2018) (reforming\\njudgment to reflect sentencing under § 1326(b)(1) without remanding to the\\ndistrict court).\\n\\n\\n\\n\\n 2 Section 1326(b)(1) provides that any alien “whose removal was subsequent to a\\nconviction for commission of three or more misdemeanors involving drugs, crimes against the\\nperson, or both, or a felony (other than an aggravated felony) . . . shall be fined under Title\\n18, imprisoned not more than 10 years, or both.”\\n 3 While Tzacir-Garcia has completed his sentence, this issue is not moot because a\\nconviction under § 1326(b)(2) has the collateral consequence of rendering an alien\\npermanently inadmissible to the United States. See United States v. Ovalle-Garcia, 868 F.3d\\n313, 314 (5th Cir. 2017).\\n\\n 2\\n\\f Case: 14-41437 Document: 00515017531 Page: 3 Date Filed: 07/01/2019\\n\\n\\n\\n No. 14-41437\\n Since that supplemental briefing was filed, however, the opinion in\\nBurris was withdrawn, and the panel, in the light of Stokeling v. United States,\\n139 S.Ct. 544 (2019), and United States v. Reyes-Contreras, 910 F.3d 169 (5th\\nCir. 2018) (en banc), issued a new opinion holding that Texas robbery requires\\nthe “use, attempted use, or threatened use of physical force” and is therefore a\\ncrime of violence under the Armed Career Criminal Act. United States v.\\nBurris, 920 F.3d 942, 945 (5th Cir. 2019). Accordingly, Tzacir-Garcia’s\\nconviction for Texas robbery is also a crime of violence under § 16(a) and thus\\nan aggravated felony for purposes of § 1326(b)(2). See United States v. Plaza-\\nMontecillo, No. 18-10688, 2019 WL 2406627, at *1 (5th Cir. June 6, 2019) (per\\ncuriam) (unpublished) (holding Texas robbery conviction qualified as an\\naggravated felony). We perceive no error in Tzacir-Garcia’s conviction and\\nsentence under § 1326(b)(2). The judgment of the district court is therefore\\n AFFIRMED.\\n\\n\\n\\n\\n 3\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2973,"cells":{"id":{"kind":"number","value":4635820,"string":"4,635,820"},"name":{"kind":"string","value":"Dennis BARGHER, Plaintiff-Appellant v. Craig WHITE, Major; Unknown Davidson, Sergeant; Unknown Wilkes, Master Sergeant, Defendants-Appellees"},"name_abbreviation":{"kind":"string","value":"Dennis Bargher v. Craig White"},"decision_date":{"kind":"string","value":"2019-07-01"},"docket_number":{"kind":"string","value":"17-30455"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Stewart, Dennis, Willett\", \"parties\": \"\", \"opinions\": [{\"author\": \"JAMES L. DENNIS, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-30455 Document: 00515017108 Page: 1 Date Filed: 07/01/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 17-30455 FILED\\n July 1, 2019\\n Lyle W. Cayce\\nDENNIS BARGHER, Clerk\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nCRAIG WHITE, Major; UNKNOWN DAVISON, Sergeant; UNKNOWN\\nWILKES, Master Sergeant,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Middle District of Louisiana\\n\\n\\nBefore STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.\\nJAMES L. DENNIS, Circuit Judge:\\n While a prisoner at the Elayn Hunt Correctional Center in Louisiana,\\nDennis Bargher Jr. brought suit under 42 U.S.C. § 1983 against prison official\\ndefendants alleging that they arranged for another inmate to attack him and\\nstood by while the other inmate severely injured him. While Bargher’s legal\\naction was pending, he was released from prison. The district court granted\\nsummary judgment for the defendants, dismissing Bargher’s claims with\\nprejudice as barred by the prescription period or, in the alternative, for\\nBargher’s failure to exhaust administrative remedies as required under the\\nPrison Litigation Reform Act (PLRA).\\n\\f Case: 17-30455 Document: 00515017108 Page: 2 Date Filed: 07/01/2019\\n\\n\\n\\n No. 17-30455\\n We find that fact issues remain as to whether the prescription period was\\nsuspended and, thus, as to whether Bargher’s claims were timely. Because we\\nadditionally hold that Bargher failed to exhaust administrative remedies, the\\nproper disposition was therefore dismissal without prejudice. We VACATE the\\ndistrict court’s judgment and REMAND with instructions to dismiss Bargher’s\\nclaims without prejudice to his ability to refile now that he is no longer bound\\nby the PLRA’s exhaustion requirements.\\n FACTUAL AND PROCEDURAL BACKGROUND\\n On May 4, 2016, while an inmate at the Elayn Hunt Correctional Center\\n(E.H.C.C.) in Louisiana, Dennis Bargher Jr. filed a 42 U.S.C. § 1983 action\\nagainst Major Craig White, Sergeant Davidson, and Master Sergeant Wilkes.\\nBargher alleged that these three prison employees violated his Eighth\\nAmendment rights by encouraging another inmate to injure him, locking that\\ninmate in a cell with him, and then standing by while that inmate “brutal[ly]\\nattack[ed]” him.\\n Specifically, Bargher alleged the following facts, none of which\\nDefendants dispute on appeal. Prior to the attack, Bargher provided the\\nWarden with information about an extortion scheme within the prison that\\ninvolved Officer White. White learned about this and confronted Bargher.\\nWhite then repeatedly spoke with Johnathan Veal, an inmate who had\\npreviously assaulted another inmate, and encouraged Veal to injure Bargher.\\nWhite falsely told Veal that Bargher had been the one to report Veal for the\\nprevious assault, and told Veal that Bargher was “a rat and had to die.”\\nBargher learned that, based on White’s lies, Veal planned to seek revenge on\\nhim.\\n On April 18, 2015, Bargher was taken from his cell and later escorted\\nback by Sargent Davidson. When Davidson was returning Bargher to his cell,\\nBargher noticed that another inmate was unexpectedly already inside.\\n 2\\n\\f Case: 17-30455 Document: 00515017108 Page: 3 Date Filed: 07/01/2019\\n\\n\\n\\n No. 17-30455\\nBargher objected to going back into the cell, but Davidson commanded him to\\n“Get the F in the cell!” Once locked inside, Bargher realized the other inmate\\nwas Veal, who immediately began to attack him. Veal beat Bargher while\\nDavidson watched and laughed, and Veal continued to do so until Davidson\\neventually stopped Veal and removed Bargher from the cell. As a result of the\\nattack, Bargher suffered a broken jaw, broken teeth, and facial nerve damage.\\nHe states that he has permanent disfigurement and pain as well as significant\\nemotional distress and anxiety.\\n As noted, Defendants neither admit not deny this account in the district\\ncourt or on appeal, but instead dispute what remedies Bargher sought in\\nresponse. Under E.H.C.C.’s Administrative Remedy Procedure, inmates must\\nfirst submit internal, written grievances—referred to as “ARPs”—by placing\\nthem in a box, from which they are then collected by prison staff, assigned a\\ncase number, and entered into E.H.C.C.’s computerized records. The record\\nprovides no indication that inmates receive notice when their ARPs are\\nreceived or told what case number are assigned to which of their ARPs.\\nInstead, they only receive notice when an ARP, as identified by the number\\nassigned to it, is accepted or rejected. This has the potential to create confusion\\naround which ARPs have received responses and which have not.\\n Bargher asserts in a sworn affidavit and in his brief on appeal that he\\nsubmitted several ARPs through this internal grievance procedure related to\\nthe April attack. He has additionally provided other documents, written before\\nthis lawsuit, in which he declared that he submitted the same ARPs. He has\\nconsistently contended that he first submitted two ARPs before the attack, in\\nwhich he declared that Veal was his “known enemy” and needed to be kept\\naway from him. He has repeatedly also asserted that, on June 12, 2015, he\\nsubmitted a five-page ARP (the June ARP) detailing Veal’s April attack and\\nthe Defendants’ culpability. The record includes a copy of the June ARP that\\n 3\\n\\f Case: 17-30455 Document: 00515017108 Page: 4 Date Filed: 07/01/2019\\n\\n\\n\\n No. 17-30455\\nBargher sent to his attorney, Donna Grodner as well as an accompanying letter\\nin which he informed her that neither that ARP nor the two he submitted about\\nVeal before the attack had received any response. This letter and copy of the\\nJune ARP are post-marked June 25, 2015 and stamped as received by Grodner\\non June 30, 2015.\\n On October 7, 2015, Grodner sent a letter to the Warden inquiring about\\nthe status of Bargher’s three ARPs for which he never received a response. On\\nOctober 22, the Warden responded that Bargher had no ARPs pending.\\n On October 6, 2015, Bargher submitted an ARP (ARP 744) requesting a\\nresponse to the other ARPs that he asserted therein were still pending. This\\nARP was given case number EHCC-2015-744, and rejected two days later on\\nOctober 8, 2015, for “addressing more than one complaint.” The rejection\\nnotice identifies the ARP by its number and contains no other reference to its\\ncontent.\\n On November 3, 2015, Bargher submitted another ARP (ARP 819)\\ndescribing the April assault and requesting remedies. In this submission,\\nBargher references other ARPs that he says he had submitted that “must have\\nbeen lost, or better yet never received.” This ARP was assigned number EHCC-\\n2015-819 and rejected November 4, again with a form that provides only the\\ncase number to identify which ARP is being rejected.\\n Bargher brought suit on May 4, 2016. Defendants subsequently filed a\\nmotion for summary judgment, arguing that Bargher’s claims were barred by\\nthe expiration of the applicable one-year prescription period. Defendants\\nnoted that the timeframe for Bargher’s § 1983 claim commenced on April 18,\\n2015, the date he alleges he was attacked. While acknowledging that the\\nprescription period is suspended while the inmate is awaiting a response to a\\nrelated ARP, Defendants attested that the only ARP Bargher submitted\\naddressing the April attack was ARP 819, which tolled the period for only two\\n 4\\n\\f Case: 17-30455 Document: 00515017108 Page: 5 Date Filed: 07/01/2019\\n\\n\\n\\n No. 17-30455\\ndays from when it was submitted on November 3, 2015, until November 4,\\n2015, when it was rejected.\\n In his opposition to summary judgment, Bargher asserted that the June\\nARP suspended the prescription period. In his brief in opposition, Bargher\\nstated that: “[the June ARP] was either never answered or it is [ARP 819] that,\\non November 4, 2015 . . . was rejected.” The district court denied Defendants’\\nfirst motion for summary judgment, noting that, if Bargher had in fact\\nsubmitted the June ARP as he alleged, then his claim was not prescribed.\\n Defendants then filed new motions for summary judgment with\\nadditional evidence, including the prison’s records of all ARPs that Bargher\\nhad submitted since 2013. There is no record therein of an ARP submitted in\\nJune 2015 nor either of the two ARPs that Bargher asserts he filed before the\\nattack requesting that Veal be kept away from him. Instead, the records show\\nthat the first ARP Bargher filed in 2015 was ARP 744 in October, followed by\\nARP 819 in November. The copies of ARP 744 and 819 that Defendants\\nprovided demonstrate that ARP 819 is the only one in the records that\\ndiscusses the April attack. It is also clear from these documents that ARP 819\\nis not itself the June ARP: the district court noted that “unlike the five page\\nARP Plaintiff claims he filed on June 12, 2015, ARP No. EHCC-2015-0819 was\\nonly four pages and dated October 30th-31st, 2015.” Defendants also\\nsubmitted an affidavit from the ARP Screening Officer who oversees all ARP\\nrequest from inmates, in which she attested that the records provided were a\\ncomplete accounting of the ARPs Bargher filed from 2013 through 2015, and\\nthat the June ARP did not exist in their records. Accordingly, Defendants\\nreasserted that the prescription period was only suspended from November 3,\\n2015, the date Bargher filed ARP 819, until November 4, 2015, the date it was\\nrejected. Defendants additionally argued, in the alternative, that even if\\nBargher’s claims were not prescribed, they should be dismissed for Bargher’s\\n 5\\n\\f Case: 17-30455 Document: 00515017108 Page: 6 Date Filed: 07/01/2019\\n\\n\\n\\n No. 17-30455\\nfailure to exhaust administrative remedies as required under the Prison\\nLitigation Reform Act (PLRA).\\n In his response, Bargher continued to declare that he had, in fact,\\nsubmitted the June ARP even though it was not reflected in the prison’s\\nrecords. Bargher posited that the June ARP and the two prior ARPs about\\nVeal were absent from the records not because he had not submitted them, but\\nbecause the records themselves had likely been tampered with by Defendants.\\n In support of this allegation, Bargher submitted an additional affidavit\\ndetailing an incident that occurred after he filed his original complaint, when\\nWhite allegedly demonstrated his willingness and ability to sabotage Bargher’s\\nprison records. Bargher asserted that, on January 1, 2017, shortly before he\\nwas later released from prison, White called him into the security office. White\\nalso called in his wife, who worked in the prison’s records department, and he\\nbegan looking through Bargher’s prison file on the computer. White then\\nprinted out about twenty pages of Bargher’s files, deleted the electronic copies,\\nand “rip[ped] up all of [the] file papers and thr[ew] them in the trash.” White\\nthen demanded Bargher’s new home address and took Bargher’s birth\\ncertificate from his file. When Bargher was released two weeks later, the birth\\ncertificate was still missing from his personal packet of papers provided to him.\\n The district court issued a ruling granting Defendants’ motions for\\nsummary judgment and dismissing Bargher’s claims with prejudice. The\\ndistrict court emphasized that there was no record in the prison’s files of the\\nJune ARP, and that Bargher’s “self-serving attestation” stating that he filed\\nan ARP in June 2015 was insufficient to satisfy this burden to prove that the\\nprescription period had been suspended for anything more than the two days\\nin November when ARP 819 was pending. Alternatively, the district court\\nconcluded that even if Bargher had submitteed the June ARP and his claims\\nwere not prescribed, he had failed to show that he exhausted the\\n 6\\n\\f Case: 17-30455 Document: 00515017108 Page: 7 Date Filed: 07/01/2019\\n\\n\\n\\n No. 17-30455\\nadministrative remedies required of inmates under the PLRA. Bargher filed\\na timely notice of appeal.\\n DISCUSSION\\n A. Suspension of the Prescription Period\\n A district court’s grant of summary judgment is reviewed de novo.\\nGrogan v. Kumar, 873 F.3d 273, 277 (5th Cir. 2017) (citations omitted).\\nSummary judgment is only appropriate if the moving party demonstrates that\\n“there is no genuine dispute as to any material fact and the movant is entitled\\nto judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(a)). When\\nconsidering a motion for summary judgment, a court must make all reasonable\\nfactual inferences from the evidence in the light most favorable to the non-\\nmovant. Austin v. Kroger Tex., L.P., 864 F.3d 326, 328–29 (5th Cir. 2017)\\n(citations omitted). However, “conclusory allegations, speculation, and\\nunsubstantiated assertions are inadequate to satisfy the nonmovant’s burden.”\\nDouglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996).\\n Notably, Defendants have not offered any evidence to dispute Bargher’s\\ndetailed account of Veal’s attack and the Defendants’ role in orchestrating it.\\nIn viewing the evidence in the light most favorable to Bargher, we must\\ntherefore infer for the purposes of our review that Defendants arranged this\\nattack precisely as Bargher describes. See Austin, 864 F.3d at 328–29. The\\nonly dispute before this court is whether Bargher is prescribed from seeking\\njudicial relief for Defendants’ alleged conduct.\\n Because there is no federal statute of limitations for actions brought\\npursuant to § 1983, federal courts borrow the forum state’s general personal\\ninjury limitations period. Wallace v. Kato, 549 U.S. 384, 387 (2007); Owens v.\\nOkure, 488 U.S. 235, 249–50 (1989). The forum state’s applicable tolling\\nprovisions are also given full effect. Smith v. Reg’l Transit Auth., 827 F.3d 412,\\n421 (5th Cir. 2016) (internal quotation marks and citation omitted).\\n 7\\n\\f Case: 17-30455 Document: 00515017108 Page: 8 Date Filed: 07/01/2019\\n\\n\\n\\n No. 17-30455\\nLouisiana’s one-year liberative prescription period thus applies to Bargher’s\\n§ 1983 action. See id.; LA. CIV. CODE ANN. art. 3492; see also LA. CIV. CODE\\nANN. art. 3447 (“Liberative prescription is a mode of barring of actions as a\\nresult of inaction for a period of time.”). “This prescription commences to run\\nfrom the day injury or damage is sustained.” La. Civ. Code Ann. art. 3492. “If\\na prescriptive period consists of one or more years, prescription accrues upon\\nthe expiration of the day of the last year that corresponds with the date of the\\ncommencement of prescription.” La. Civ. Code Ann. art. 3456.\\n Prescription is suspended upon the filing of a prisoner’s grievance “until\\nthe final agency decision is delivered.” La. Rev. Stat. Ann. § 15:1172(E); see\\nAllen v. State, 107 So. 3d 106, 109–10 (La. Ct. App. 2012). “The period of\\nsuspension is not counted toward accrual of prescription.” La. Civ. Code Ann.\\nart. 3472; cf. La. Civ. Code Ann. art. 3466 (“If prescription is interrupted, the\\ntime that has run is not counted. Prescription commences to run anew from\\nthe last day of interruption.”).\\n There is no dispute that Bargher’s § 1983 action accrued on April 18,\\n2015, and that the applicable prescription period, if not suspended, expired\\nApril 18, 2016. Bargher argues, however, that there is a genuine dispute as to\\nwhether he submitted an internal grievance on June 12, 2015 (the June ARP),\\nwhich the district court acknowledged would have suspended the prescription\\nperiod and rendered his claims timely. We agree.\\n In finding otherwise, the district court improperly concluded that a\\nparty’s “self-serving” sworn statements cannot create a genuine dispute of\\nmaterial fact. Notably, the unpublished case that the district court relied on\\ndiscussed a “conclusory, unsworn affidavit.” Tyler v. Cedar Hill Independent\\nSch. Dist, 426 F. App’x 306, 309 (5th Cir. 2011) (per curium) (emphasis added)\\n(citing DIRECTV, Inc. v. Budden, 420 F.3d 521, 531 (5th Cir. 2005). Simply\\nbeing “self-serving,” however, does not prevent a party’s assertions from\\n 8\\n\\f Case: 17-30455 Document: 00515017108 Page: 9 Date Filed: 07/01/2019\\n\\n\\n\\n No. 17-30455\\ncreating a dispute of fact. See Dallas/Fort Worth Int’l Airport Bd. v. INet\\nAirport Sys., Inc., 819 F.3d 245, 253 n.14 (5th Cir.) (“Evidence proffered by one\\nside to support or defeat a motion for summary judgment will inevitably appear\\n‘self-serving.’”)). A plaintiff in car wreck case who asserts that she had a green\\nlight and that the defendant ran a red light is also making highly “self-serving”\\nstatements, but no one would say that the district court can ignore them.\\nSimilarly, Bargher’s statements that he submitted unrecorded ARPs and that\\nWhite can and has tampered with his prison records are not merely “conclusory\\nallegations, speculation, and unsubstantiated assertions,” see Douglass, 79\\nF.3d at 1429, but instead detailed testimony from his personal knowledge.\\n Further, Bargher’s affidavits are not the only evidence to support his\\naccount of the facts. Though the prison’s records submitted by Defendants\\nindisputably include no mention of Bargher submitting the June ARP, it is\\nclear that he did write the June ARP shortly after the attack. The document\\nin question is included in the record, prepared in the same handwriting as\\nBargher’s recorded ARPs and postmarked to his attorney June 25, 2015.\\nThough this does not of course prove that he followed the correct procedures to\\nsubmit the June ARP through E.H.C.C.’s internal grievance system, it\\ncertainly lends credence to his version of events when viewed in the light most\\nfavorable to him. The record also demonstrates that Bargher has consistently\\nmaintained both before and during this lawsuit—in letters to his lawyer, in his\\nARPs that are on record with the prison, and in his affidavits—that he\\nsubmitted the June ARP and the prior ARPs about Veal but received no\\nresponse.\\n The district court found that there was no mention of the June ARP in\\nBargher’s complaint. The complaint specifically references two ARPs, one that\\nwas rejected on October 8, 2015 and one on November 4, 2015. The complaint\\ndoes not state when either ARP was filed. From the record that was\\n 9\\n\\f Case: 17-30455 Document: 00515017108 Page: 10 Date Filed: 07/01/2019\\n\\n\\n\\n No. 17-30455\\nsubsequently developed, we know that these ARPs are ARP 744 and ARP 819,\\nrespectively—not the June ARP.\\n We believe, however, that the lack of transparency in E.H.C.C.’s\\ngrievance procedures could reasonably explain this apparent omission.\\nBargher would have known from the rejection notices he received that an ARP\\ndesignated as “EHCC-2015-744” was denied on October 8 and another,\\ndesignated as “EHCC-2015-819” was denied on November 4. Bargher argues,\\nhowever, that he previously believed that one of these rejections was for the\\nJune ARP, and only later during the litigation discovered that neither of these\\ndesignations referred to the June ARP. There is other evidence that Bargher\\nwas genuinely confused about this: in one of his affidavits, he stated that he\\ndid not receive a response to the June ARP “until November 2015”—the month\\nhe actually received the rejection for ARP 819. We are not convinced that\\nBargher’s mention in his complaint of only the two ARPs rejected in October\\nand November would prevent a reasonable jury from finding that he submitted\\nthe June ARP.\\n Bargher has further provided summary judgment evidence that would\\npermit a reasonable jury to conclude that White had both the opportunity and\\nthe motive to either intercept the June ARP to prevent it from being logged or\\nto delete it from the records. In a sworn affidavit, Bargher claims that he\\npersonally saw White, with help from his wife who works in the records\\ndepartment at E.H.C.C., tamper with his records and destroy portions of them.\\nWe reiterate that, when viewing all evidence in the light most favorable to\\nBargher as we must do, we draw the inference that White and the other guards\\ndid indeed arrange for Veal to attack Bargher. It is then certainly reasonable\\n\\n\\n\\n\\n 10\\n\\f Case: 17-30455 Document: 00515017108 Page: 11 Date Filed: 07/01/2019\\n\\n\\n\\n No. 17-30455\\nto infer that White had every reason to cover up any record of the June ARP\\ndescribing his involvement in this attack. 1\\n Because we find a genuine issue of material fact as whether Bargher\\nfiled the June ARP, the district court erred by dismissing Bargher’s claims as\\nbarred by the prescription period.\\n B. Failure to Exhaust Administrative Remedies\\n The district court alternatively found that, even if a reasonable jury\\ncould find that Bargher filed the June ARP, dismissal was proper because\\nBargher failed to exhaust his administrative remedies before filing suit. We\\nreview a dismissal for failure to exhaust administrative remedies de novo.\\nPowe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999).\\n Under the Prison Litigation Reform Act (PLRA): “No action shall be\\nbrought with respect to prison . . . by a prisoner confined in any jail, prison, or\\nother correctional facility until such administrative remedies as are available\\nare exhausted.” 42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 84\\n(2006). “Proper exhaustion demands compliance with an agency’s deadlines\\nand other critical procedural rules.” Woodford, 548 U.S. at 90. The petitioner\\nmust have “pursue[d] the grievance remedy to conclusion”—substantial\\ncompliance with administrative procedures is not enough. Wright v.\\nHollingsworth, 260 F.3d 357, 358 (5th Cir. 2001).\\n Louisiana’s Administrative Remedy Procedure has two steps, and a\\nprisoner has not exhausted his remedies until he has completed both. See\\nDillon v. Rogers, 596 F.3d 260, 265–66 (5th Cir. 2010). A prisoner first submits\\na request to the warden briefly setting out the basis for the claim and the relief\\n\\n\\n 1 Though ARP 819 also describes the attack and implicates White, it was filed too late\\nfor Bargher to receive relief, which would weaken any motive to interfere with its filing. See\\nLa. Admin. Code tit. 22, pt. I, § 325(J)(1) (a grievance at this step shall be filed “within 90\\ndays of an alleged event.”).\\n\\n 11\\n\\f Case: 17-30455 Document: 00515017108 Page: 12 Date Filed: 07/01/2019\\n\\n\\n\\n No. 17-30455\\nsought—these are the “ARPs” discussed at length above. Id. at 265. The\\nwarden then has 40 days to respond. Id. at 265–66. If the inmate is\\ndissatisfied with the warden’s response, or no response is received within the\\n40-day time period, the inmate may proceed to the second step and appeal to\\nthe Secretary of the Louisiana Department of Public Safety and Corrections.\\nId. at 266. Critically, a prisoner who does not receive a timely response to his\\ninitial ARP is not prevented from filing a second-step ARP. See id.; LA. ADMIN.\\nCODE tit. 22, pt. I, § 325(J)(1)(c) (“expiration of response time limits shall\\nentitle the offender to move on to the next step in the process.”).\\n Bargher acknowledges that he never proceeded to the second step of the\\ngrievance process, but instead incorrectly contends that the second step was\\nnot available until the prison responded to his first-step grievance. However,\\nwhen prison officials failed to timely respond to his first-step grievance,\\nBargher was entitled under § 325(J)(1)(c) to proceed to the second step. See\\nDillon, 596 F.3d at 266. Because Bargher thus filed his §1983 complaint prior\\nto the completion of the administrative grievance process, the district court\\nproperly found that Bargher failed to exhaust the required administrative\\nremedies before bringing this suit while incarcerated.\\n The district court dismissed Bargher’s suit with prejudice. Failure to\\nexhaust, however, warrants dismissal without prejudice, which permits the\\nlitigant to refile if he exhausts or is otherwise no longer barred by the PLRA\\nrequirements. See Wright, 260 F.3d 357; Booth v. Churner, 532 U.S. 731, 735\\n(2001).\\n This distinction between dismissal with or without prejudice is critical\\nin Bargher’s case because he was released from prison during the pendency of\\nthis suit. Bargher’s subsequent release does not relieve him of the requirement\\nto exhaust administrative remedies for this current legal action that he\\ninitiated while in prison. Williams v. Henagan, 595 F.3d 610, 619 (5th Cir.\\n 12\\n\\f Case: 17-30455 Document: 00515017108 Page: 13 Date Filed: 07/01/2019\\n\\n\\n\\n No. 17-30455\\n2010) (holding that when plaintiff “was incarcerated when he brought this suit\\n. . . [his] release during the pendency of the suit does not relieve him the\\nobligation to comply with 42 U.S.C. § 1997e[‘s exhaustion requirements]”). By\\nits plain language, however, the PLRA’s restrictions do not apply to actions\\nfiled by former inmates following their release. 42 U.S.C. § 1997e(a) (“No\\naction shall be brought . . . by a prisoner . . . until such administrative remedies\\nas are available are exhausted”); see, e.g., Norton v. City of Marietta, 432 F.3d\\n1145, 1150 (10th Cir. 2005) (“In light of the PLRA’s plain language . . . . a\\nplaintiff who seeks to bring suit about prison life after he has been released\\nand is no longer a prisoner does not have to satisfy the PLRA’s exhaustion\\nrequirements before bringing suit”); Nerness v. Johnson, 401 F.3d 874, 876 (8th\\nCir. 2005) (per curium) (PLRA’s exhaustion requirements do not apply when\\nsomeone files suit after release from confinement); Witzke v. Femal, 376 F.3d\\n744, 750 (7th Cir. 2004) (same); Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999)\\n(same); Duvall v. Dallas Cty., No. CIV.A. 305CV2431B, 2006 WL 3487024, at\\n*2 (N.D. Tex. Dec. 1, 2006) (same); see also Janes v. Hernandez, 215 F.3d 541,\\n542 (5th Cir. 2000) (“Because Janes was not a prisoner when this complaint\\nwas filed, the [attorney’s] fee limits of the [Prison Litigation Reform] Act did\\nnot apply.”).\\n Accordingly, though his present action must be dismissed, Bargher\\nwould not be bound by the PLRA’s exhaustion requirements if he were to\\nimmediately refile. See Cox v. Mayer, 332 F.3d 422, 424–25 (6th Cir. 2003)\\n(holding that dismissal was required when plaintiff filed unexhausted claims\\nwhile a prisoner but that his release during pendency of the suit meant he\\ncould subsequently refile his claims without exhausting: “no longer in prison,\\nplaintiff ha[s] no remedies to exhaust”); see also Ahmed v. Dragovich, 297 F.3d\\n201, 210 (3d Cir. 2002) (“Although Ahmed would have been free of the\\nstrictures of the PLRA[‘s exhaustion requirements] if he had filed a timely\\n 13\\n\\f Case: 17-30455 Document: 00515017108 Page: 14 Date Filed: 07/01/2019\\n\\n\\n\\n No. 17-30455\\ncomplaint after his release from prison, he is bound by the PLRA because his\\nsuit was filed . . . almost three years before he was released.”). Because this is\\ntherefore not an occasion where “modification of the judgment would be futile,”\\nthe district court’s judgment should be amended to dismissal without\\nprejudice. See, e.g., Rankin v. Pearson, 612 F. App'x 204, 206 (5th Cir. 2015)\\n(declining to find that the district court erred in that case by dismissing with\\nprejudice because the plaintiff there was required but would be unable to\\nexhaust his administrative remedies).\\n ***\\n For these reasons, we VACATE the district court’s dismissal with\\nprejudice and REMAND with instructions to dismiss Bargher’s action without\\nprejudice to his ability to timely refile.\\n\\n\\n\\n\\n 14\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4413073/\", \"author_raw\": \"JAMES L. DENNIS, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"STEWART"},"judge2":{"kind":"string","value":"DENNIS"},"judge3":{"kind":"string","value":"WILLETT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4635820/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Dennis BARGHER, Plaintiff-Appellant v. Craig WHITE, Major; Unknown Davidson, Sergeant; Unknown Wilkes, Master Sergeant, Defendants-Appellees\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-01\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-30455 Document: 00515017108 Page: 1 Date Filed: 07/01/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n\n No. 17-30455 FILED\n July 1, 2019\n Lyle W. Cayce\nDENNIS BARGHER, Clerk\n\n Plaintiff - Appellant\n\nv.\n\nCRAIG WHITE, Major; UNKNOWN DAVISON, Sergeant; UNKNOWN\nWILKES, Master Sergeant,\n\n Defendants - Appellees\n\n\n\n\n Appeal from the United States District Court\n for the Middle District of Louisiana\n\n\nBefore STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.\nJAMES L. DENNIS, Circuit Judge:\n While a prisoner at the Elayn Hunt Correctional Center in Louisiana,\nDennis Bargher Jr. brought suit under 42 U.S.C. § 1983 against prison official\ndefendants alleging that they arranged for another inmate to attack him and\nstood by while the other inmate severely injured him. While Bargher’s legal\naction was pending, he was released from prison. The district court granted\nsummary judgment for the defendants, dismissing Bargher’s claims with\nprejudice as barred by the prescription period or, in the alternative, for\nBargher’s failure to exhaust administrative remedies as required under the\nPrison Litigation Reform Act (PLRA).\n\f Case: 17-30455 Document: 00515017108 Page: 2 Date Filed: 07/01/2019\n\n\n\n No. 17-30455\n We find that fact issues remain as to whether the prescription period was\nsuspended and, thus, as to whether Bargher’s claims were timely. Because we\nadditionally hold that Bargher failed to exhaust administrative remedies, the\nproper disposition was therefore dismissal without prejudice. We VACATE the\ndistrict court’s judgment and REMAND with instructions to dismiss Bargher’s\nclaims without prejudice to his ability to refile now that he is no longer bound\nby the PLRA’s exhaustion requirements.\n FACTUAL AND PROCEDURAL BACKGROUND\n On May 4, 2016, while an inmate at the Elayn Hunt Correctional Center\n(E.H.C.C.) in Louisiana, Dennis Bargher Jr. filed a 42 U.S.C. § 1983 action\nagainst Major Craig White, Sergeant Davidson, and Master Sergeant Wilkes.\nBargher alleged that these three prison employees violated his Eighth\nAmendment rights by encouraging another inmate to injure him, locking that\ninmate in a cell with him, and then standing by while that inmate “brutal[ly]\nattack[ed]” him.\n Specifically, Bargher alleged the following facts, none of which\nDefendants dispute on appeal. Prior to the attack, Bargher provided the\nWarden with information about an extortion scheme within the prison that\ninvolved Officer White. White learned about this and confronted Bargher.\nWhite then repeatedly spoke with Johnathan Veal, an inmate who had\npreviously assaulted another inmate, and encouraged Veal to injure Bargher.\nWhite falsely told Veal that Bargher had been the one to report Veal for the\nprevious assault, and told Veal that Bargher was “a rat and had to die.”\nBargher learned that, based on White’s lies, Veal planned to seek revenge on\nhim.\n On April 18, 2015, Bargher was taken from his cell and later escorted\nback by Sargent Davidson. When Davidson was returning Bargher to his cell,\nBargher noticed that another inmate was unexpectedly already inside.\n 2\n\f Case: 17-30455 Document: 00515017108 Page: 3 Date Filed: 07/01/2019\n\n\n\n No. 17-30455\nBargher objected to going back into the cell, but Davidson commanded him to\n“Get the F in the cell!” Once locked inside, Bargher realized the other inmate\nwas Veal, who immediately began to attack him. Veal beat Bargher while\nDavidson watched and laughed, and Veal continued to do so until Davidson\neventually stopped Veal and removed Bargher from the cell. As a result of the\nattack, Bargher suffered a broken jaw, broken teeth, and facial nerve damage.\nHe states that he has permanent disfigurement and pain as well as significant\nemotional distress and anxiety.\n As noted, Defendants neither admit not deny this account in the district\ncourt or on appeal, but instead dispute what remedies Bargher sought in\nresponse. Under E.H.C.C.’s Administrative Remedy Procedure, inmates must\nfirst submit internal, written grievances—referred to as “ARPs”—by placing\nthem in a box, from which they are then collected by prison staff, assigned a\ncase number, and entered into E.H.C.C.’s computerized records. The record\nprovides no indication that inmates receive notice when their ARPs are\nreceived or told what case number are assigned to which of their ARPs.\nInstead, they only receive notice when an ARP, as identified by the number\nassigned to it, is accepted or rejected. This has the potential to create confusion\naround which ARPs have received responses and which have not.\n Bargher asserts in a sworn affidavit and in his brief on appeal that he\nsubmitted several ARPs through this internal grievance procedure related to\nthe April attack. He has additionally provided other documents, written before\nthis lawsuit, in which he declared that he submitted the same ARPs. He has\nconsistently contended that he first submitted two ARPs before the attack, in\nwhich he declared that Veal was his “known enemy” and needed to be kept\naway from him. He has repeatedly also asserted that, on June 12, 2015, he\nsubmitted a five-page ARP (the June ARP) detailing Veal’s April attack and\nthe Defendants’ culpability. The record includes a copy of the June ARP that\n 3\n\f Case: 17-30455 Document: 00515017108 Page: 4 Date Filed: 07/01/2019\n\n\n\n No. 17-30455\nBargher sent to his attorney, Donna Grodner as well as an accompanying letter\nin which he informed her that neither that ARP nor the two he submitted about\nVeal before the attack had received any response. This letter and copy of the\nJune ARP are post-marked June 25, 2015 and stamped as received by Grodner\non June 30, 2015.\n On October 7, 2015, Grodner sent a letter to the Warden inquiring about\nthe status of Bargher’s three ARPs for which he never received a response. On\nOctober 22, the Warden responded that Bargher had no ARPs pending.\n On October 6, 2015, Bargher submitted an ARP (ARP 744) requesting a\nresponse to the other ARPs that he asserted therein were still pending. This\nARP was given case number EHCC-2015-744, and rejected two days later on\nOctober 8, 2015, for “addressing more than one complaint.” The rejection\nnotice identifies the ARP by its number and contains no other reference to its\ncontent.\n On November 3, 2015, Bargher submitted another ARP (ARP 819)\ndescribing the April assault and requesting remedies. In this submission,\nBargher references other ARPs that he says he had submitted that “must have\nbeen lost, or better yet never received.” This ARP was assigned number EHCC-\n2015-819 and rejected November 4, again with a form that provides only the\ncase number to identify which ARP is being rejected.\n Bargher brought suit on May 4, 2016. Defendants subsequently filed a\nmotion for summary judgment, arguing that Bargher’s claims were barred by\nthe expiration of the applicable one-year prescription period. Defendants\nnoted that the timeframe for Bargher’s § 1983 claim commenced on April 18,\n2015, the date he alleges he was attacked. While acknowledging that the\nprescription period is suspended while the inmate is awaiting a response to a\nrelated ARP, Defendants attested that the only ARP Bargher submitted\naddressing the April attack was ARP 819, which tolled the period for only two\n 4\n\f Case: 17-30455 Document: 00515017108 Page: 5 Date Filed: 07/01/2019\n\n\n\n No. 17-30455\ndays from when it was submitted on November 3, 2015, until November 4,\n2015, when it was rejected.\n In his opposition to summary judgment, Bargher asserted that the June\nARP suspended the prescription period. In his brief in opposition, Bargher\nstated that: “[the June ARP] was either never answered or it is [ARP 819] that,\non November 4, 2015 . . . was rejected.” The district court denied Defendants’\nfirst motion for summary judgment, noting that, if Bargher had in fact\nsubmitted the June ARP as he alleged, then his claim was not prescribed.\n Defendants then filed new motions for summary judgment with\nadditional evidence, including the prison’s records of all ARPs that Bargher\nhad submitted since 2013. There is no record therein of an ARP submitted in\nJune 2015 nor either of the two ARPs that Bargher asserts he filed before the\nattack requesting that Veal be kept away from him. Instead, the records show\nthat the first ARP Bargher filed in 2015 was ARP 744 in October, followed by\nARP 819 in November. The copies of ARP 744 and 819 that Defendants\nprovided demonstrate that ARP 819 is the only one in the records that\ndiscusses the April attack. It is also clear from these documents that ARP 819\nis not itself the June ARP: the district court noted that “unlike the five page\nARP Plaintiff claims he filed on June 12, 2015, ARP No. EHCC-2015-0819 was\nonly four pages and dated October 30th-31st, 2015.” Defendants also\nsubmitted an affidavit from the ARP Screening Officer who oversees all ARP\nrequest from inmates, in which she attested that the records provided were a\ncomplete accounting of the ARPs Bargher filed from 2013 through 2015, and\nthat the June ARP did not exist in their records. Accordingly, Defendants\nreasserted that the prescription period was only suspended from November 3,\n2015, the date Bargher filed ARP 819, until November 4, 2015, the date it was\nrejected. Defendants additionally argued, in the alternative, that even if\nBargher’s claims were not prescribed, they should be dismissed for Bargher’s\n 5\n\f Case: 17-30455 Document: 00515017108 Page: 6 Date Filed: 07/01/2019\n\n\n\n No. 17-30455\nfailure to exhaust administrative remedies as required under the Prison\nLitigation Reform Act (PLRA).\n In his response, Bargher continued to declare that he had, in fact,\nsubmitted the June ARP even though it was not reflected in the prison’s\nrecords. Bargher posited that the June ARP and the two prior ARPs about\nVeal were absent from the records not because he had not submitted them, but\nbecause the records themselves had likely been tampered with by Defendants.\n In support of this allegation, Bargher submitted an additional affidavit\ndetailing an incident that occurred after he filed his original complaint, when\nWhite allegedly demonstrated his willingness and ability to sabotage Bargher’s\nprison records. Bargher asserted that, on January 1, 2017, shortly before he\nwas later released from prison, White called him into the security office. White\nalso called in his wife, who worked in the prison’s records department, and he\nbegan looking through Bargher’s prison file on the computer. White then\nprinted out about twenty pages of Bargher’s files, deleted the electronic copies,\nand “rip[ped] up all of [the] file papers and thr[ew] them in the trash.” White\nthen demanded Bargher’s new home address and took Bargher’s birth\ncertificate from his file. When Bargher was released two weeks later, the birth\ncertificate was still missing from his personal packet of papers provided to him.\n The district court issued a ruling granting Defendants’ motions for\nsummary judgment and dismissing Bargher’s claims with prejudice. The\ndistrict court emphasized that there was no record in the prison’s files of the\nJune ARP, and that Bargher’s “self-serving attestation” stating that he filed\nan ARP in June 2015 was insufficient to satisfy this burden to prove that the\nprescription period had been suspended for anything more than the two days\nin November when ARP 819 was pending. Alternatively, the district court\nconcluded that even if Bargher had submitteed the June ARP and his claims\nwere not prescribed, he had failed to show that he exhausted the\n 6\n\f Case: 17-30455 Document: 00515017108 Page: 7 Date Filed: 07/01/2019\n\n\n\n No. 17-30455\nadministrative remedies required of inmates under the PLRA. Bargher filed\na timely notice of appeal.\n DISCUSSION\n A. Suspension of the Prescription Period\n A district court’s grant of summary judgment is reviewed de novo.\nGrogan v. Kumar, 873 F.3d 273, 277 (5th Cir. 2017) (citations omitted).\nSummary judgment is only appropriate if the moving party demonstrates that\n“there is no genuine dispute as to any material fact and the movant is entitled\nto judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(a)). When\nconsidering a motion for summary judgment, a court must make all reasonable\nfactual inferences from the evidence in the light most favorable to the non-\nmovant. Austin v. Kroger Tex., L.P., 864 F.3d 326, 328–29 (5th Cir. 2017)\n(citations omitted). However, “conclusory allegations, speculation, and\nunsubstantiated assertions are inadequate to satisfy the nonmovant’s burden.”\nDouglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996).\n Notably, Defendants have not offered any evidence to dispute Bargher’s\ndetailed account of Veal’s attack and the Defendants’ role in orchestrating it.\nIn viewing the evidence in the light most favorable to Bargher, we must\ntherefore infer for the purposes of our review that Defendants arranged this\nattack precisely as Bargher describes. See Austin, 864 F.3d at 328–29. The\nonly dispute before this court is whether Bargher is prescribed from seeking\njudicial relief for Defendants’ alleged conduct.\n Because there is no federal statute of limitations for actions brought\npursuant to § 1983, federal courts borrow the forum state’s general personal\ninjury limitations period. Wallace v. Kato, 549 U.S. 384, 387 (2007); Owens v.\nOkure, 488 U.S. 235, 249–50 (1989). The forum state’s applicable tolling\nprovisions are also given full effect. Smith v. Reg’l Transit Auth., 827 F.3d 412,\n421 (5th Cir. 2016) (internal quotation marks and citation omitted).\n 7\n\f Case: 17-30455 Document: 00515017108 Page: 8 Date Filed: 07/01/2019\n\n\n\n No. 17-30455\nLouisiana’s one-year liberative prescription period thus applies to Bargher’s\n§ 1983 action. See id.; LA. CIV. CODE ANN. art. 3492; see also LA. CIV. CODE\nANN. art. 3447 (“Liberative prescription is a mode of barring of actions as a\nresult of inaction for a period of time.”). “This prescription commences to run\nfrom the day injury or damage is sustained.” La. Civ. Code Ann. art. 3492. “If\na prescriptive period consists of one or more years, prescription accrues upon\nthe expiration of the day of the last year that corresponds with the date of the\ncommencement of prescription.” La. Civ. Code Ann. art. 3456.\n Prescription is suspended upon the filing of a prisoner’s grievance “until\nthe final agency decision is delivered.” La. Rev. Stat. Ann. § 15:1172(E); see\nAllen v. State, 107 So. 3d 106, 109–10 (La. Ct. App. 2012). “The period of\nsuspension is not counted toward accrual of prescription.” La. Civ. Code Ann.\nart. 3472; cf. La. Civ. Code Ann. art. 3466 (“If prescription is interrupted, the\ntime that has run is not counted. Prescription commences to run anew from\nthe last day of interruption.”).\n There is no dispute that Bargher’s § 1983 action accrued on April 18,\n2015, and that the applicable prescription period, if not suspended, expired\nApril 18, 2016. Bargher argues, however, that there is a genuine dispute as to\nwhether he submitted an internal grievance on June 12, 2015 (the June ARP),\nwhich the district court acknowledged would have suspended the prescription\nperiod and rendered his claims timely. We agree.\n In finding otherwise, the district court improperly concluded that a\nparty’s “self-serving” sworn statements cannot create a genuine dispute of\nmaterial fact. Notably, the unpublished case that the district court relied on\ndiscussed a “conclusory, unsworn affidavit.” Tyler v. Cedar Hill Independent\nSch. Dist, 426 F. App’x 306, 309 (5th Cir. 2011) (per curium) (emphasis added)\n(citing DIRECTV, Inc. v. Budden, 420 F.3d 521, 531 (5th Cir. 2005). Simply\nbeing “self-serving,” however, does not prevent a party’s assertions from\n 8\n\f Case: 17-30455 Document: 00515017108 Page: 9 Date Filed: 07/01/2019\n\n\n\n No. 17-30455\ncreating a dispute of fact. See Dallas/Fort Worth Int’l Airport Bd. v. INet\nAirport Sys., Inc., 819 F.3d 245, 253 n.14 (5th Cir.) (“Evidence proffered by one\nside to support or defeat a motion for summary judgment will inevitably appear\n‘self-serving.’”)). A plaintiff in car wreck case who asserts that she had a green\nlight and that the defendant ran a red light is also making highly “self-serving”\nstatements, but no one would say that the district court can ignore them.\nSimilarly, Bargher’s statements that he submitted unrecorded ARPs and that\nWhite can and has tampered with his prison records are not merely “conclusory\nallegations, speculation, and unsubstantiated assertions,” see Douglass, 79\nF.3d at 1429, but instead detailed testimony from his personal knowledge.\n Further, Bargher’s affidavits are not the only evidence to support his\naccount of the facts. Though the prison’s records submitted by Defendants\nindisputably include no mention of Bargher submitting the June ARP, it is\nclear that he did write the June ARP shortly after the attack. The document\nin question is included in the record, prepared in the same handwriting as\nBargher’s recorded ARPs and postmarked to his attorney June 25, 2015.\nThough this does not of course prove that he followed the correct procedures to\nsubmit the June ARP through E.H.C.C.’s internal grievance system, it\ncertainly lends credence to his version of events when viewed in the light most\nfavorable to him. The record also demonstrates that Bargher has consistently\nmaintained both before and during this lawsuit—in letters to his lawyer, in his\nARPs that are on record with the prison, and in his affidavits—that he\nsubmitted the June ARP and the prior ARPs about Veal but received no\nresponse.\n The district court found that there was no mention of the June ARP in\nBargher’s complaint. The complaint specifically references two ARPs, one that\nwas rejected on October 8, 2015 and one on November 4, 2015. The complaint\ndoes not state when either ARP was filed. From the record that was\n 9\n\f Case: 17-30455 Document: 00515017108 Page: 10 Date Filed: 07/01/2019\n\n\n\n No. 17-30455\nsubsequently developed, we know that these ARPs are ARP 744 and ARP 819,\nrespectively—not the June ARP.\n We believe, however, that the lack of transparency in E.H.C.C.’s\ngrievance procedures could reasonably explain this apparent omission.\nBargher would have known from the rejection notices he received that an ARP\ndesignated as “EHCC-2015-744” was denied on October 8 and another,\ndesignated as “EHCC-2015-819” was denied on November 4. Bargher argues,\nhowever, that he previously believed that one of these rejections was for the\nJune ARP, and only later during the litigation discovered that neither of these\ndesignations referred to the June ARP. There is other evidence that Bargher\nwas genuinely confused about this: in one of his affidavits, he stated that he\ndid not receive a response to the June ARP “until November 2015”—the month\nhe actually received the rejection for ARP 819. We are not convinced that\nBargher’s mention in his complaint of only the two ARPs rejected in October\nand November would prevent a reasonable jury from finding that he submitted\nthe June ARP.\n Bargher has further provided summary judgment evidence that would\npermit a reasonable jury to conclude that White had both the opportunity and\nthe motive to either intercept the June ARP to prevent it from being logged or\nto delete it from the records. In a sworn affidavit, Bargher claims that he\npersonally saw White, with help from his wife who works in the records\ndepartment at E.H.C.C., tamper with his records and destroy portions of them.\nWe reiterate that, when viewing all evidence in the light most favorable to\nBargher as we must do, we draw the inference that White and the other guards\ndid indeed arrange for Veal to attack Bargher. It is then certainly reasonable\n\n\n\n\n 10\n\f Case: 17-30455 Document: 00515017108 Page: 11 Date Filed: 07/01/2019\n\n\n\n No. 17-30455\nto infer that White had every reason to cover up any record of the June ARP\ndescribing his involvement in this attack. 1\n Because we find a genuine issue of material fact as whether Bargher\nfiled the June ARP, the district court erred by dismissing Bargher’s claims as\nbarred by the prescription period.\n B. Failure to Exhaust Administrative Remedies\n The district court alternatively found that, even if a reasonable jury\ncould find that Bargher filed the June ARP, dismissal was proper because\nBargher failed to exhaust his administrative remedies before filing suit. We\nreview a dismissal for failure to exhaust administrative remedies de novo.\nPowe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999).\n Under the Prison Litigation Reform Act (PLRA): “No action shall be\nbrought with respect to prison . . . by a prisoner confined in any jail, prison, or\nother correctional facility until such administrative remedies as are available\nare exhausted.” 42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 84\n(2006). “Proper exhaustion demands compliance with an agency’s deadlines\nand other critical procedural rules.” Woodford, 548 U.S. at 90. The petitioner\nmust have “pursue[d] the grievance remedy to conclusion”—substantial\ncompliance with administrative procedures is not enough. Wright v.\nHollingsworth, 260 F.3d 357, 358 (5th Cir. 2001).\n Louisiana’s Administrative Remedy Procedure has two steps, and a\nprisoner has not exhausted his remedies until he has completed both. See\nDillon v. Rogers, 596 F.3d 260, 265–66 (5th Cir. 2010). A prisoner first submits\na request to the warden briefly setting out the basis for the claim and the relief\n\n\n 1 Though ARP 819 also describes the attack and implicates White, it was filed too late\nfor Bargher to receive relief, which would weaken any motive to interfere with its filing. See\nLa. Admin. Code tit. 22, pt. I, § 325(J)(1) (a grievance at this step shall be filed “within 90\ndays of an alleged event.”).\n\n 11\n\f Case: 17-30455 Document: 00515017108 Page: 12 Date Filed: 07/01/2019\n\n\n\n No. 17-30455\nsought—these are the “ARPs” discussed at length above. Id. at 265. The\nwarden then has 40 days to respond. Id. at 265–66. If the inmate is\ndissatisfied with the warden’s response, or no response is received within the\n40-day time period, the inmate may proceed to the second step and appeal to\nthe Secretary of the Louisiana Department of Public Safety and Corrections.\nId. at 266. Critically, a prisoner who does not receive a timely response to his\ninitial ARP is not prevented from filing a second-step ARP. See id.; LA. ADMIN.\nCODE tit. 22, pt. I, § 325(J)(1)(c) (“expiration of response time limits shall\nentitle the offender to move on to the next step in the process.”).\n Bargher acknowledges that he never proceeded to the second step of the\ngrievance process, but instead incorrectly contends that the second step was\nnot available until the prison responded to his first-step grievance. However,\nwhen prison officials failed to timely respond to his first-step grievance,\nBargher was entitled under § 325(J)(1)(c) to proceed to the second step. See\nDillon, 596 F.3d at 266. Because Bargher thus filed his §1983 complaint prior\nto the completion of the administrative grievance process, the district court\nproperly found that Bargher failed to exhaust the required administrative\nremedies before bringing this suit while incarcerated.\n The district court dismissed Bargher’s suit with prejudice. Failure to\nexhaust, however, warrants dismissal without prejudice, which permits the\nlitigant to refile if he exhausts or is otherwise no longer barred by the PLRA\nrequirements. See Wright, 260 F.3d 357; Booth v. Churner, 532 U.S. 731, 735\n(2001).\n This distinction between dismissal with or without prejudice is critical\nin Bargher’s case because he was released from prison during the pendency of\nthis suit. Bargher’s subsequent release does not relieve him of the requirement\nto exhaust administrative remedies for this current legal action that he\ninitiated while in prison. Williams v. Henagan, 595 F.3d 610, 619 (5th Cir.\n 12\n\f Case: 17-30455 Document: 00515017108 Page: 13 Date Filed: 07/01/2019\n\n\n\n No. 17-30455\n2010) (holding that when plaintiff “was incarcerated when he brought this suit\n. . . [his] release during the pendency of the suit does not relieve him the\nobligation to comply with 42 U.S.C. § 1997e[‘s exhaustion requirements]”). By\nits plain language, however, the PLRA’s restrictions do not apply to actions\nfiled by former inmates following their release. 42 U.S.C. § 1997e(a) (“No\naction shall be brought . . . by a prisoner . . . until such administrative remedies\nas are available are exhausted”); see, e.g., Norton v. City of Marietta, 432 F.3d\n1145, 1150 (10th Cir. 2005) (“In light of the PLRA’s plain language . . . . a\nplaintiff who seeks to bring suit about prison life after he has been released\nand is no longer a prisoner does not have to satisfy the PLRA’s exhaustion\nrequirements before bringing suit”); Nerness v. Johnson, 401 F.3d 874, 876 (8th\nCir. 2005) (per curium) (PLRA’s exhaustion requirements do not apply when\nsomeone files suit after release from confinement); Witzke v. Femal, 376 F.3d\n744, 750 (7th Cir. 2004) (same); Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999)\n(same); Duvall v. Dallas Cty., No. CIV.A. 305CV2431B, 2006 WL 3487024, at\n*2 (N.D. Tex. Dec. 1, 2006) (same); see also Janes v. Hernandez, 215 F.3d 541,\n542 (5th Cir. 2000) (“Because Janes was not a prisoner when this complaint\nwas filed, the [attorney’s] fee limits of the [Prison Litigation Reform] Act did\nnot apply.”).\n Accordingly, though his present action must be dismissed, Bargher\nwould not be bound by the PLRA’s exhaustion requirements if he were to\nimmediately refile. See Cox v. Mayer, 332 F.3d 422, 424–25 (6th Cir. 2003)\n(holding that dismissal was required when plaintiff filed unexhausted claims\nwhile a prisoner but that his release during pendency of the suit meant he\ncould subsequently refile his claims without exhausting: “no longer in prison,\nplaintiff ha[s] no remedies to exhaust”); see also Ahmed v. Dragovich, 297 F.3d\n201, 210 (3d Cir. 2002) (“Although Ahmed would have been free of the\nstrictures of the PLRA[‘s exhaustion requirements] if he had filed a timely\n 13\n\f Case: 17-30455 Document: 00515017108 Page: 14 Date Filed: 07/01/2019\n\n\n\n No. 17-30455\ncomplaint after his release from prison, he is bound by the PLRA because his\nsuit was filed . . . almost three years before he was released.”). Because this is\ntherefore not an occasion where “modification of the judgment would be futile,”\nthe district court’s judgment should be amended to dismissal without\nprejudice. See, e.g., Rankin v. Pearson, 612 F. App'x 204, 206 (5th Cir. 2015)\n(declining to find that the district court erred in that case by dismissing with\nprejudice because the plaintiff there was required but would be unable to\nexhaust his administrative remedies).\n ***\n For these reasons, we VACATE the district court’s dismissal with\nprejudice and REMAND with instructions to dismiss Bargher’s action without\nprejudice to his ability to timely refile.\n\n\n\n\n 14\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Dennis BARGHER, Plaintiff-Appellant v. Craig WHITE, Major; Unknown Davidson, Sergeant; Unknown Wilkes, Master Sergeant, Defendants-Appellees\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-01\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-30455 Document: 00515017108 Page: 1 Date Filed: 07/01/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 17-30455 FILED\\n July 1, 2019\\n Lyle W. Cayce\\nDENNIS BARGHER, Clerk\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nCRAIG WHITE, Major; UNKNOWN DAVISON, Sergeant; UNKNOWN\\nWILKES, Master Sergeant,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Middle District of Louisiana\\n\\n\\nBefore STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.\\nJAMES L. DENNIS, Circuit Judge:\\n While a prisoner at the Elayn Hunt Correctional Center in Louisiana,\\nDennis Bargher Jr. brought suit under 42 U.S.C. § 1983 against prison official\\ndefendants alleging that they arranged for another inmate to attack him and\\nstood by while the other inmate severely injured him. While Bargher’s legal\\naction was pending, he was released from prison. The district court granted\\nsummary judgment for the defendants, dismissing Bargher’s claims with\\nprejudice as barred by the prescription period or, in the alternative, for\\nBargher’s failure to exhaust administrative remedies as required under the\\nPrison Litigation Reform Act (PLRA).\\n\\f Case: 17-30455 Document: 00515017108 Page: 2 Date Filed: 07/01/2019\\n\\n\\n\\n No. 17-30455\\n We find that fact issues remain as to whether the prescription period was\\nsuspended and, thus, as to whether Bargher’s claims were timely. Because we\\nadditionally hold that Bargher failed to exhaust administrative remedies, the\\nproper disposition was therefore dismissal without prejudice. We VACATE the\\ndistrict court’s judgment and REMAND with instructions to dismiss Bargher’s\\nclaims without prejudice to his ability to refile now that he is no longer bound\\nby the PLRA’s exhaustion requirements.\\n FACTUAL AND PROCEDURAL BACKGROUND\\n On May 4, 2016, while an inmate at the Elayn Hunt Correctional Center\\n(E.H.C.C.) in Louisiana, Dennis Bargher Jr. filed a 42 U.S.C. § 1983 action\\nagainst Major Craig White, Sergeant Davidson, and Master Sergeant Wilkes.\\nBargher alleged that these three prison employees violated his Eighth\\nAmendment rights by encouraging another inmate to injure him, locking that\\ninmate in a cell with him, and then standing by while that inmate “brutal[ly]\\nattack[ed]” him.\\n Specifically, Bargher alleged the following facts, none of which\\nDefendants dispute on appeal. Prior to the attack, Bargher provided the\\nWarden with information about an extortion scheme within the prison that\\ninvolved Officer White. White learned about this and confronted Bargher.\\nWhite then repeatedly spoke with Johnathan Veal, an inmate who had\\npreviously assaulted another inmate, and encouraged Veal to injure Bargher.\\nWhite falsely told Veal that Bargher had been the one to report Veal for the\\nprevious assault, and told Veal that Bargher was “a rat and had to die.”\\nBargher learned that, based on White’s lies, Veal planned to seek revenge on\\nhim.\\n On April 18, 2015, Bargher was taken from his cell and later escorted\\nback by Sargent Davidson. When Davidson was returning Bargher to his cell,\\nBargher noticed that another inmate was unexpectedly already inside.\\n 2\\n\\f Case: 17-30455 Document: 00515017108 Page: 3 Date Filed: 07/01/2019\\n\\n\\n\\n No. 17-30455\\nBargher objected to going back into the cell, but Davidson commanded him to\\n“Get the F in the cell!” Once locked inside, Bargher realized the other inmate\\nwas Veal, who immediately began to attack him. Veal beat Bargher while\\nDavidson watched and laughed, and Veal continued to do so until Davidson\\neventually stopped Veal and removed Bargher from the cell. As a result of the\\nattack, Bargher suffered a broken jaw, broken teeth, and facial nerve damage.\\nHe states that he has permanent disfigurement and pain as well as significant\\nemotional distress and anxiety.\\n As noted, Defendants neither admit not deny this account in the district\\ncourt or on appeal, but instead dispute what remedies Bargher sought in\\nresponse. Under E.H.C.C.’s Administrative Remedy Procedure, inmates must\\nfirst submit internal, written grievances—referred to as “ARPs”—by placing\\nthem in a box, from which they are then collected by prison staff, assigned a\\ncase number, and entered into E.H.C.C.’s computerized records. The record\\nprovides no indication that inmates receive notice when their ARPs are\\nreceived or told what case number are assigned to which of their ARPs.\\nInstead, they only receive notice when an ARP, as identified by the number\\nassigned to it, is accepted or rejected. This has the potential to create confusion\\naround which ARPs have received responses and which have not.\\n Bargher asserts in a sworn affidavit and in his brief on appeal that he\\nsubmitted several ARPs through this internal grievance procedure related to\\nthe April attack. He has additionally provided other documents, written before\\nthis lawsuit, in which he declared that he submitted the same ARPs. He has\\nconsistently contended that he first submitted two ARPs before the attack, in\\nwhich he declared that Veal was his “known enemy” and needed to be kept\\naway from him. He has repeatedly also asserted that, on June 12, 2015, he\\nsubmitted a five-page ARP (the June ARP) detailing Veal’s April attack and\\nthe Defendants’ culpability. The record includes a copy of the June ARP that\\n 3\\n\\f Case: 17-30455 Document: 00515017108 Page: 4 Date Filed: 07/01/2019\\n\\n\\n\\n No. 17-30455\\nBargher sent to his attorney, Donna Grodner as well as an accompanying letter\\nin which he informed her that neither that ARP nor the two he submitted about\\nVeal before the attack had received any response. This letter and copy of the\\nJune ARP are post-marked June 25, 2015 and stamped as received by Grodner\\non June 30, 2015.\\n On October 7, 2015, Grodner sent a letter to the Warden inquiring about\\nthe status of Bargher’s three ARPs for which he never received a response. On\\nOctober 22, the Warden responded that Bargher had no ARPs pending.\\n On October 6, 2015, Bargher submitted an ARP (ARP 744) requesting a\\nresponse to the other ARPs that he asserted therein were still pending. This\\nARP was given case number EHCC-2015-744, and rejected two days later on\\nOctober 8, 2015, for “addressing more than one complaint.” The rejection\\nnotice identifies the ARP by its number and contains no other reference to its\\ncontent.\\n On November 3, 2015, Bargher submitted another ARP (ARP 819)\\ndescribing the April assault and requesting remedies. In this submission,\\nBargher references other ARPs that he says he had submitted that “must have\\nbeen lost, or better yet never received.” This ARP was assigned number EHCC-\\n2015-819 and rejected November 4, again with a form that provides only the\\ncase number to identify which ARP is being rejected.\\n Bargher brought suit on May 4, 2016. Defendants subsequently filed a\\nmotion for summary judgment, arguing that Bargher’s claims were barred by\\nthe expiration of the applicable one-year prescription period. Defendants\\nnoted that the timeframe for Bargher’s § 1983 claim commenced on April 18,\\n2015, the date he alleges he was attacked. While acknowledging that the\\nprescription period is suspended while the inmate is awaiting a response to a\\nrelated ARP, Defendants attested that the only ARP Bargher submitted\\naddressing the April attack was ARP 819, which tolled the period for only two\\n 4\\n\\f Case: 17-30455 Document: 00515017108 Page: 5 Date Filed: 07/01/2019\\n\\n\\n\\n No. 17-30455\\ndays from when it was submitted on November 3, 2015, until November 4,\\n2015, when it was rejected.\\n In his opposition to summary judgment, Bargher asserted that the June\\nARP suspended the prescription period. In his brief in opposition, Bargher\\nstated that: “[the June ARP] was either never answered or it is [ARP 819] that,\\non November 4, 2015 . . . was rejected.” The district court denied Defendants’\\nfirst motion for summary judgment, noting that, if Bargher had in fact\\nsubmitted the June ARP as he alleged, then his claim was not prescribed.\\n Defendants then filed new motions for summary judgment with\\nadditional evidence, including the prison’s records of all ARPs that Bargher\\nhad submitted since 2013. There is no record therein of an ARP submitted in\\nJune 2015 nor either of the two ARPs that Bargher asserts he filed before the\\nattack requesting that Veal be kept away from him. Instead, the records show\\nthat the first ARP Bargher filed in 2015 was ARP 744 in October, followed by\\nARP 819 in November. The copies of ARP 744 and 819 that Defendants\\nprovided demonstrate that ARP 819 is the only one in the records that\\ndiscusses the April attack. It is also clear from these documents that ARP 819\\nis not itself the June ARP: the district court noted that “unlike the five page\\nARP Plaintiff claims he filed on June 12, 2015, ARP No. EHCC-2015-0819 was\\nonly four pages and dated October 30th-31st, 2015.” Defendants also\\nsubmitted an affidavit from the ARP Screening Officer who oversees all ARP\\nrequest from inmates, in which she attested that the records provided were a\\ncomplete accounting of the ARPs Bargher filed from 2013 through 2015, and\\nthat the June ARP did not exist in their records. Accordingly, Defendants\\nreasserted that the prescription period was only suspended from November 3,\\n2015, the date Bargher filed ARP 819, until November 4, 2015, the date it was\\nrejected. Defendants additionally argued, in the alternative, that even if\\nBargher’s claims were not prescribed, they should be dismissed for Bargher’s\\n 5\\n\\f Case: 17-30455 Document: 00515017108 Page: 6 Date Filed: 07/01/2019\\n\\n\\n\\n No. 17-30455\\nfailure to exhaust administrative remedies as required under the Prison\\nLitigation Reform Act (PLRA).\\n In his response, Bargher continued to declare that he had, in fact,\\nsubmitted the June ARP even though it was not reflected in the prison’s\\nrecords. Bargher posited that the June ARP and the two prior ARPs about\\nVeal were absent from the records not because he had not submitted them, but\\nbecause the records themselves had likely been tampered with by Defendants.\\n In support of this allegation, Bargher submitted an additional affidavit\\ndetailing an incident that occurred after he filed his original complaint, when\\nWhite allegedly demonstrated his willingness and ability to sabotage Bargher’s\\nprison records. Bargher asserted that, on January 1, 2017, shortly before he\\nwas later released from prison, White called him into the security office. White\\nalso called in his wife, who worked in the prison’s records department, and he\\nbegan looking through Bargher’s prison file on the computer. White then\\nprinted out about twenty pages of Bargher’s files, deleted the electronic copies,\\nand “rip[ped] up all of [the] file papers and thr[ew] them in the trash.” White\\nthen demanded Bargher’s new home address and took Bargher’s birth\\ncertificate from his file. When Bargher was released two weeks later, the birth\\ncertificate was still missing from his personal packet of papers provided to him.\\n The district court issued a ruling granting Defendants’ motions for\\nsummary judgment and dismissing Bargher’s claims with prejudice. The\\ndistrict court emphasized that there was no record in the prison’s files of the\\nJune ARP, and that Bargher’s “self-serving attestation” stating that he filed\\nan ARP in June 2015 was insufficient to satisfy this burden to prove that the\\nprescription period had been suspended for anything more than the two days\\nin November when ARP 819 was pending. Alternatively, the district court\\nconcluded that even if Bargher had submitteed the June ARP and his claims\\nwere not prescribed, he had failed to show that he exhausted the\\n 6\\n\\f Case: 17-30455 Document: 00515017108 Page: 7 Date Filed: 07/01/2019\\n\\n\\n\\n No. 17-30455\\nadministrative remedies required of inmates under the PLRA. Bargher filed\\na timely notice of appeal.\\n DISCUSSION\\n A. Suspension of the Prescription Period\\n A district court’s grant of summary judgment is reviewed de novo.\\nGrogan v. Kumar, 873 F.3d 273, 277 (5th Cir. 2017) (citations omitted).\\nSummary judgment is only appropriate if the moving party demonstrates that\\n“there is no genuine dispute as to any material fact and the movant is entitled\\nto judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(a)). When\\nconsidering a motion for summary judgment, a court must make all reasonable\\nfactual inferences from the evidence in the light most favorable to the non-\\nmovant. Austin v. Kroger Tex., L.P., 864 F.3d 326, 328–29 (5th Cir. 2017)\\n(citations omitted). However, “conclusory allegations, speculation, and\\nunsubstantiated assertions are inadequate to satisfy the nonmovant’s burden.”\\nDouglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996).\\n Notably, Defendants have not offered any evidence to dispute Bargher’s\\ndetailed account of Veal’s attack and the Defendants’ role in orchestrating it.\\nIn viewing the evidence in the light most favorable to Bargher, we must\\ntherefore infer for the purposes of our review that Defendants arranged this\\nattack precisely as Bargher describes. See Austin, 864 F.3d at 328–29. The\\nonly dispute before this court is whether Bargher is prescribed from seeking\\njudicial relief for Defendants’ alleged conduct.\\n Because there is no federal statute of limitations for actions brought\\npursuant to § 1983, federal courts borrow the forum state’s general personal\\ninjury limitations period. Wallace v. Kato, 549 U.S. 384, 387 (2007); Owens v.\\nOkure, 488 U.S. 235, 249–50 (1989). The forum state’s applicable tolling\\nprovisions are also given full effect. Smith v. Reg’l Transit Auth., 827 F.3d 412,\\n421 (5th Cir. 2016) (internal quotation marks and citation omitted).\\n 7\\n\\f Case: 17-30455 Document: 00515017108 Page: 8 Date Filed: 07/01/2019\\n\\n\\n\\n No. 17-30455\\nLouisiana’s one-year liberative prescription period thus applies to Bargher’s\\n§ 1983 action. See id.; LA. CIV. CODE ANN. art. 3492; see also LA. CIV. CODE\\nANN. art. 3447 (“Liberative prescription is a mode of barring of actions as a\\nresult of inaction for a period of time.”). “This prescription commences to run\\nfrom the day injury or damage is sustained.” La. Civ. Code Ann. art. 3492. “If\\na prescriptive period consists of one or more years, prescription accrues upon\\nthe expiration of the day of the last year that corresponds with the date of the\\ncommencement of prescription.” La. Civ. Code Ann. art. 3456.\\n Prescription is suspended upon the filing of a prisoner’s grievance “until\\nthe final agency decision is delivered.” La. Rev. Stat. Ann. § 15:1172(E); see\\nAllen v. State, 107 So. 3d 106, 109–10 (La. Ct. App. 2012). “The period of\\nsuspension is not counted toward accrual of prescription.” La. Civ. Code Ann.\\nart. 3472; cf. La. Civ. Code Ann. art. 3466 (“If prescription is interrupted, the\\ntime that has run is not counted. Prescription commences to run anew from\\nthe last day of interruption.”).\\n There is no dispute that Bargher’s § 1983 action accrued on April 18,\\n2015, and that the applicable prescription period, if not suspended, expired\\nApril 18, 2016. Bargher argues, however, that there is a genuine dispute as to\\nwhether he submitted an internal grievance on June 12, 2015 (the June ARP),\\nwhich the district court acknowledged would have suspended the prescription\\nperiod and rendered his claims timely. We agree.\\n In finding otherwise, the district court improperly concluded that a\\nparty’s “self-serving” sworn statements cannot create a genuine dispute of\\nmaterial fact. Notably, the unpublished case that the district court relied on\\ndiscussed a “conclusory, unsworn affidavit.” Tyler v. Cedar Hill Independent\\nSch. Dist, 426 F. App’x 306, 309 (5th Cir. 2011) (per curium) (emphasis added)\\n(citing DIRECTV, Inc. v. Budden, 420 F.3d 521, 531 (5th Cir. 2005). Simply\\nbeing “self-serving,” however, does not prevent a party’s assertions from\\n 8\\n\\f Case: 17-30455 Document: 00515017108 Page: 9 Date Filed: 07/01/2019\\n\\n\\n\\n No. 17-30455\\ncreating a dispute of fact. See Dallas/Fort Worth Int’l Airport Bd. v. INet\\nAirport Sys., Inc., 819 F.3d 245, 253 n.14 (5th Cir.) (“Evidence proffered by one\\nside to support or defeat a motion for summary judgment will inevitably appear\\n‘self-serving.’”)). A plaintiff in car wreck case who asserts that she had a green\\nlight and that the defendant ran a red light is also making highly “self-serving”\\nstatements, but no one would say that the district court can ignore them.\\nSimilarly, Bargher’s statements that he submitted unrecorded ARPs and that\\nWhite can and has tampered with his prison records are not merely “conclusory\\nallegations, speculation, and unsubstantiated assertions,” see Douglass, 79\\nF.3d at 1429, but instead detailed testimony from his personal knowledge.\\n Further, Bargher’s affidavits are not the only evidence to support his\\naccount of the facts. Though the prison’s records submitted by Defendants\\nindisputably include no mention of Bargher submitting the June ARP, it is\\nclear that he did write the June ARP shortly after the attack. The document\\nin question is included in the record, prepared in the same handwriting as\\nBargher’s recorded ARPs and postmarked to his attorney June 25, 2015.\\nThough this does not of course prove that he followed the correct procedures to\\nsubmit the June ARP through E.H.C.C.’s internal grievance system, it\\ncertainly lends credence to his version of events when viewed in the light most\\nfavorable to him. The record also demonstrates that Bargher has consistently\\nmaintained both before and during this lawsuit—in letters to his lawyer, in his\\nARPs that are on record with the prison, and in his affidavits—that he\\nsubmitted the June ARP and the prior ARPs about Veal but received no\\nresponse.\\n The district court found that there was no mention of the June ARP in\\nBargher’s complaint. The complaint specifically references two ARPs, one that\\nwas rejected on October 8, 2015 and one on November 4, 2015. The complaint\\ndoes not state when either ARP was filed. From the record that was\\n 9\\n\\f Case: 17-30455 Document: 00515017108 Page: 10 Date Filed: 07/01/2019\\n\\n\\n\\n No. 17-30455\\nsubsequently developed, we know that these ARPs are ARP 744 and ARP 819,\\nrespectively—not the June ARP.\\n We believe, however, that the lack of transparency in E.H.C.C.’s\\ngrievance procedures could reasonably explain this apparent omission.\\nBargher would have known from the rejection notices he received that an ARP\\ndesignated as “EHCC-2015-744” was denied on October 8 and another,\\ndesignated as “EHCC-2015-819” was denied on November 4. Bargher argues,\\nhowever, that he previously believed that one of these rejections was for the\\nJune ARP, and only later during the litigation discovered that neither of these\\ndesignations referred to the June ARP. There is other evidence that Bargher\\nwas genuinely confused about this: in one of his affidavits, he stated that he\\ndid not receive a response to the June ARP “until November 2015”—the month\\nhe actually received the rejection for ARP 819. We are not convinced that\\nBargher’s mention in his complaint of only the two ARPs rejected in October\\nand November would prevent a reasonable jury from finding that he submitted\\nthe June ARP.\\n Bargher has further provided summary judgment evidence that would\\npermit a reasonable jury to conclude that White had both the opportunity and\\nthe motive to either intercept the June ARP to prevent it from being logged or\\nto delete it from the records. In a sworn affidavit, Bargher claims that he\\npersonally saw White, with help from his wife who works in the records\\ndepartment at E.H.C.C., tamper with his records and destroy portions of them.\\nWe reiterate that, when viewing all evidence in the light most favorable to\\nBargher as we must do, we draw the inference that White and the other guards\\ndid indeed arrange for Veal to attack Bargher. It is then certainly reasonable\\n\\n\\n\\n\\n 10\\n\\f Case: 17-30455 Document: 00515017108 Page: 11 Date Filed: 07/01/2019\\n\\n\\n\\n No. 17-30455\\nto infer that White had every reason to cover up any record of the June ARP\\ndescribing his involvement in this attack. 1\\n Because we find a genuine issue of material fact as whether Bargher\\nfiled the June ARP, the district court erred by dismissing Bargher’s claims as\\nbarred by the prescription period.\\n B. Failure to Exhaust Administrative Remedies\\n The district court alternatively found that, even if a reasonable jury\\ncould find that Bargher filed the June ARP, dismissal was proper because\\nBargher failed to exhaust his administrative remedies before filing suit. We\\nreview a dismissal for failure to exhaust administrative remedies de novo.\\nPowe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999).\\n Under the Prison Litigation Reform Act (PLRA): “No action shall be\\nbrought with respect to prison . . . by a prisoner confined in any jail, prison, or\\nother correctional facility until such administrative remedies as are available\\nare exhausted.” 42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 84\\n(2006). “Proper exhaustion demands compliance with an agency’s deadlines\\nand other critical procedural rules.” Woodford, 548 U.S. at 90. The petitioner\\nmust have “pursue[d] the grievance remedy to conclusion”—substantial\\ncompliance with administrative procedures is not enough. Wright v.\\nHollingsworth, 260 F.3d 357, 358 (5th Cir. 2001).\\n Louisiana’s Administrative Remedy Procedure has two steps, and a\\nprisoner has not exhausted his remedies until he has completed both. See\\nDillon v. Rogers, 596 F.3d 260, 265–66 (5th Cir. 2010). A prisoner first submits\\na request to the warden briefly setting out the basis for the claim and the relief\\n\\n\\n 1 Though ARP 819 also describes the attack and implicates White, it was filed too late\\nfor Bargher to receive relief, which would weaken any motive to interfere with its filing. See\\nLa. Admin. Code tit. 22, pt. I, § 325(J)(1) (a grievance at this step shall be filed “within 90\\ndays of an alleged event.”).\\n\\n 11\\n\\f Case: 17-30455 Document: 00515017108 Page: 12 Date Filed: 07/01/2019\\n\\n\\n\\n No. 17-30455\\nsought—these are the “ARPs” discussed at length above. Id. at 265. The\\nwarden then has 40 days to respond. Id. at 265–66. If the inmate is\\ndissatisfied with the warden’s response, or no response is received within the\\n40-day time period, the inmate may proceed to the second step and appeal to\\nthe Secretary of the Louisiana Department of Public Safety and Corrections.\\nId. at 266. Critically, a prisoner who does not receive a timely response to his\\ninitial ARP is not prevented from filing a second-step ARP. See id.; LA. ADMIN.\\nCODE tit. 22, pt. I, § 325(J)(1)(c) (“expiration of response time limits shall\\nentitle the offender to move on to the next step in the process.”).\\n Bargher acknowledges that he never proceeded to the second step of the\\ngrievance process, but instead incorrectly contends that the second step was\\nnot available until the prison responded to his first-step grievance. However,\\nwhen prison officials failed to timely respond to his first-step grievance,\\nBargher was entitled under § 325(J)(1)(c) to proceed to the second step. See\\nDillon, 596 F.3d at 266. Because Bargher thus filed his §1983 complaint prior\\nto the completion of the administrative grievance process, the district court\\nproperly found that Bargher failed to exhaust the required administrative\\nremedies before bringing this suit while incarcerated.\\n The district court dismissed Bargher’s suit with prejudice. Failure to\\nexhaust, however, warrants dismissal without prejudice, which permits the\\nlitigant to refile if he exhausts or is otherwise no longer barred by the PLRA\\nrequirements. See Wright, 260 F.3d 357; Booth v. Churner, 532 U.S. 731, 735\\n(2001).\\n This distinction between dismissal with or without prejudice is critical\\nin Bargher’s case because he was released from prison during the pendency of\\nthis suit. Bargher’s subsequent release does not relieve him of the requirement\\nto exhaust administrative remedies for this current legal action that he\\ninitiated while in prison. Williams v. Henagan, 595 F.3d 610, 619 (5th Cir.\\n 12\\n\\f Case: 17-30455 Document: 00515017108 Page: 13 Date Filed: 07/01/2019\\n\\n\\n\\n No. 17-30455\\n2010) (holding that when plaintiff “was incarcerated when he brought this suit\\n. . . [his] release during the pendency of the suit does not relieve him the\\nobligation to comply with 42 U.S.C. § 1997e[‘s exhaustion requirements]”). By\\nits plain language, however, the PLRA’s restrictions do not apply to actions\\nfiled by former inmates following their release. 42 U.S.C. § 1997e(a) (“No\\naction shall be brought . . . by a prisoner . . . until such administrative remedies\\nas are available are exhausted”); see, e.g., Norton v. City of Marietta, 432 F.3d\\n1145, 1150 (10th Cir. 2005) (“In light of the PLRA’s plain language . . . . a\\nplaintiff who seeks to bring suit about prison life after he has been released\\nand is no longer a prisoner does not have to satisfy the PLRA’s exhaustion\\nrequirements before bringing suit”); Nerness v. Johnson, 401 F.3d 874, 876 (8th\\nCir. 2005) (per curium) (PLRA’s exhaustion requirements do not apply when\\nsomeone files suit after release from confinement); Witzke v. Femal, 376 F.3d\\n744, 750 (7th Cir. 2004) (same); Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999)\\n(same); Duvall v. Dallas Cty., No. CIV.A. 305CV2431B, 2006 WL 3487024, at\\n*2 (N.D. Tex. Dec. 1, 2006) (same); see also Janes v. Hernandez, 215 F.3d 541,\\n542 (5th Cir. 2000) (“Because Janes was not a prisoner when this complaint\\nwas filed, the [attorney’s] fee limits of the [Prison Litigation Reform] Act did\\nnot apply.”).\\n Accordingly, though his present action must be dismissed, Bargher\\nwould not be bound by the PLRA’s exhaustion requirements if he were to\\nimmediately refile. See Cox v. Mayer, 332 F.3d 422, 424–25 (6th Cir. 2003)\\n(holding that dismissal was required when plaintiff filed unexhausted claims\\nwhile a prisoner but that his release during pendency of the suit meant he\\ncould subsequently refile his claims without exhausting: “no longer in prison,\\nplaintiff ha[s] no remedies to exhaust”); see also Ahmed v. Dragovich, 297 F.3d\\n201, 210 (3d Cir. 2002) (“Although Ahmed would have been free of the\\nstrictures of the PLRA[‘s exhaustion requirements] if he had filed a timely\\n 13\\n\\f Case: 17-30455 Document: 00515017108 Page: 14 Date Filed: 07/01/2019\\n\\n\\n\\n No. 17-30455\\ncomplaint after his release from prison, he is bound by the PLRA because his\\nsuit was filed . . . almost three years before he was released.”). Because this is\\ntherefore not an occasion where “modification of the judgment would be futile,”\\nthe district court’s judgment should be amended to dismissal without\\nprejudice. See, e.g., Rankin v. Pearson, 612 F. App'x 204, 206 (5th Cir. 2015)\\n(declining to find that the district court erred in that case by dismissing with\\nprejudice because the plaintiff there was required but would be unable to\\nexhaust his administrative remedies).\\n ***\\n For these reasons, we VACATE the district court’s dismissal with\\nprejudice and REMAND with instructions to dismiss Bargher’s action without\\nprejudice to his ability to timely refile.\\n\\n\\n\\n\\n 14\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2974,"cells":{"id":{"kind":"number","value":4636057,"string":"4,636,057"},"name":{"kind":"string","value":"Richard Brett FREDERKING, Plaintiff - Appellant v. CINCINNATI INSURANCE COMPANY, Defendant - Appellee"},"name_abbreviation":{"kind":"string","value":"Richard Frederking v. Cincinnati Insurance Company"},"decision_date":{"kind":"string","value":"2019-07-02"},"docket_number":{"kind":"string","value":"18-50536"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"James, Jones, Oldham\", \"parties\": \"\", \"opinions\": [{\"author\": \"JAMES C. HO, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-50536 Document: 00515018844 Page: 1 Date Filed: 07/02/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 18-50536 FILED\\n July 2, 2019\\n Lyle W. Cayce\\nRICHARD BRETT FREDERKING, Clerk\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nCINCINNATI INSURANCE COMPANY,\\n\\n Defendant - Appellee\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore JONES, HO, and OLDHAM, Circuit Judges.\\nJAMES C. HO, Circuit Judge:\\n Only an insurance company could come up with the policy interpretation\\nadvanced here. Cincinnati Insurance Company theorizes that its automobile\\npolicies do not cover injuries caused by drunk driving collisions, because such\\ncollisions are not “accidents.” Its logic is this: intentional acts are not acci-\\ndents, and drunk drivers make the intentional choice to drink and then drive.\\n This theory of interpretation conflicts with the plain meaning and com-\\nmon usage of the word “accident”—and defies the understanding and expecta-\\ntion of everyone who drives a car. Not surprisingly, no court has, to our\\nknowledge, endorsed the policy interpretation advanced here, and Cincinnati\\n\\f Case: 18-50536 Document: 00515018844 Page: 2 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50536\\ncites none (other than the district court in this case). We reverse and remand\\nfor further proceedings.\\n I.\\n Carlos Xavier Sanchez was driving under the influence of alcohol when\\nhe failed to yield the right of way, thereby colliding with another car and in-\\njuring Richard Brett Frederking. At the time, Sanchez was driving a truck\\nassigned to him by his employer, Advantage Plumbing Services. Advantage,\\nin turn, is insured by Cincinnati.\\n Frederking sued both Sanchez and Advantage in Texas state court. The\\njury found that Sanchez’s conduct was grossly negligent, and that Advantage\\nnegligently entrusted Sanchez with the vehicle. The jury held Sanchez and\\nAdvantage jointly and severally liable for $137,025 in compensatory damages.\\nIt further awarded $207,550 in exemplary damages for Sanchez’s gross negli-\\ngence.\\n As Advantage’s insurer, Cincinnati agreed to pay Frederking the amount\\nof the compensatory damages award, thereby discharging Advantage’s liabil-\\nity. But when Frederking demanded that Cincinnati also pay Sanchez’s exem-\\nplary damages, Cincinnati refused. In response, Frederking brought this suit\\nagainst Cincinnati.\\n Frederking is a third-party beneficiary of Advantage’s insurance policies\\nwith Cincinnati. Those policies have two relevant coverage sections. First, the\\nAuto Policy covers damages resulting from “accidents” caused by Advantage’s\\nemployees that produce defined injuries. Second, the Commercial Umbrella\\nLiability Coverage applies where the Auto Policy does not. It also covers sums\\nin excess of the Auto Policy’s limits. For our purposes, however, its coverage is\\nessentially identical to the Auto Policy, because it covers “occurrences”—which\\nincludes (but is not limited to) “accidents” resulting in defined injuries.\\n\\n\\n 2\\n\\f Case: 18-50536 Document: 00515018844 Page: 3 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50536\\n When Cincinnati refused to pay the exemplary damages award, Frederk-\\ning brought this suit for breach of contract and declaratory judgment in Texas\\nstate court. Cincinnati removed to federal court and counterclaimed for de-\\nclaratory judgment. Cincinnati then moved for summary judgment on various\\ngrounds, namely, that (1) Sanchez was not a covered “insured” at the time of\\nthe collision; (2) Sanchez’s grossly negligent conduct could not result in a cov-\\nered “accident”; (3) the exemplary damages award is uninsurable as a matter\\nof contract and public policy; and (4) Cincinnati has no duty to indemnify\\nSanchez. Frederking cross-moved for partial summary judgment on the de-\\nclaratory judgment claims and argued that a fact issue remained about\\nwhether Sanchez was an “insured.”\\n The district court granted summary judgment to Cincinnati. In particu-\\nlar, it concluded that Sanchez’s intentional decision to drive while intoxicated\\nmeant that the collision was not an “accident” under Texas law.\\n II.\\n “An interpretation of an insurance policy provision is an issue of law re-\\nviewed de novo.” Performance Autoplex II Ltd. v. Mid-Continent Cas. Co., 322\\nF.3d 847, 853 (5th Cir. 2003) (per curiam) (citing Am. States Ins. Co. v. Bailey,\\n133 F.3d 363, 369 (5th Cir. 1998)).\\n Both of the policies at issue here cover damages resulting from “acci-\\ndents.” Neither policy defines the term “accidents.” 1 So we are left to give this\\nundefined term its “generally accepted or commonly understood meaning.” La-\\nmar Homes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 8 (Tex. 2007) (citing\\nW. Reserve Life Ins. v. Meadows, 261 S.W.2d 554, 557 (Tex. 1953)).\\n\\n\\n\\n 1 The policy simply says that the term “includes continuous or repeated exposure to\\nthe same conditions resulting in” injury. This appears to be common policy language. See,\\ne.g., Fed. Ins. Co. v. Ace Prop. & Cas. Co., 429 F.3d 120, 122 (5th Cir. 2005) (same); Lamar\\nHomes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 6 (Tex. 2007) (same).\\n 3\\n\\f Case: 18-50536 Document: 00515018844 Page: 4 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50536\\n For the reasons explained below, we conclude that, as a matter of plain\\nmeaning and common usage, the term “accident” plainly includes the drunk\\ndriving collision that gave rise to this dispute.\\n A.\\n Consistent with ordinary usage, the Supreme Court of Texas has defined\\nthe term “accident” as a “fortuitous, unexpected, and unintended event.” Id.\\n(citing 1A JOHN ALAN APPLEMAN & JEAN APPLEMAN, INSURANCE LAW AND\\nPRACTICE § 360 at 449 (1981)). See also BRYAN A. GARNER, GARNER’S DICTION-\\nARY OF LEGAL USAGE 12 (3d ed., 2011) (“[Accident, mishap, casualty, and\\n(sometimes) incident] denote a chance event that brings injury or loss. Acci-\\ndent, the broadest term, refers to an unforeseen event involving an injury or\\nloss that ranges from slight (e.g., spilling a drop from a tepid cup of water) to\\ngrave (e.g., running a cruise ship into an iceberg). . . . In the context of insur-\\nance, . . . accident insurance covers injuries to oneself by some lack of care or\\ninattention, or perhaps by some occurrence wholly outside one’s control.”); Ac-\\ncident, BLACK’S LAW DICTIONARY 16 (9th ed., 2009) (“An unintended and un-\\nforeseeable injurious occurrence; something that does not occur in the usual\\ncourse of events or that could not be reasonably anticipated.”).\\n Put another way, the term “accident” is defined by what it excludes—\\nintentional acts. See, e.g., Argonaut Sw. Ins. Co. v. Maupin, 500 S.W.2d 633,\\n636 (Tex. 1973) (“An intentional tort is neither an ‘accident’ nor ‘occurrence’\\nwithin the terms of the policy.”).\\n Not surprisingly, then, we ordinarily describe automobile collisions as\\n“accidents” in common parlance. As the Texas Supreme Court has stated,\\n“[t]he term ‘auto accident’ refers to situations where one or more vehicles are\\ninvolved with another vehicle, object, or person.” Farmers Texas County Mut.\\nIns. Co. v. Griffin, 955 S.W.2d 81, 83 (Tex. 1997) (per curiam) (quoting State\\nFarm Mut. Ins. Co. v. Peck, 900 S.W.2d 910, 913 (Tex. App.—Amarillo 1995,\\n 4\\n\\f Case: 18-50536 Document: 00515018844 Page: 5 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50536\\nno writ)). See also Peck, 900 S.W.2d at 913 (“[T]he ordinary and generally ac-\\ncepted meaning of the term ‘auto accident’ refers to situations where one or\\nmore vehicles are involved in some type of collision or near collision with an-\\nother vehicle, object, or person.”) (citation omitted).\\n There is no reason to describe the automobile collision in this case as\\nanything other than an “accident.” Certainly no one contends that Sanchez\\nintended his vehicle to collide with Frederking’s vehicle. Nor does anyone sug-\\ngest that Sanchez drank in hopes of causing an automobile collision. Accord-\\ningly, we conclude that this case falls well within the common understanding\\nof the term “accident.”\\n B.\\n Cincinnati contends otherwise. It argues that drunk driving collisions\\nare not “accidents,” because the decision to drink (and then later drive) was\\nintentional—even though there was admittedly no intent to collide with an-\\nother vehicle. As Cincinnati points out, a jury found that Sanchez intentionally\\ndecided to drive while intoxicated, with “actual, subjective awareness” of the\\n“extreme degree of risk, considering the probability and magnitude of the po-\\ntential harm to others.” TEX. CIV. PRAC. & REM. CODE § 41.001(11) (defining\\nthe standard for gross negligence). As a result, Sanchez’s subjective awareness\\nof the risk he posed renders the collision intentional, rather than accidental.\\n There are a number of problems with this theory. To begin with, it is\\ncontrary to common parlance. To illustrate: During oral argument, counsel\\nfor Cincinnati acknowledged that, under its understanding of the term “acci-\\ndent,” the phrase “drunk driving accident” would have to be an oxymoron. But\\nit is not. Far from it, “drunk driving accident” is a matter of common usage.\\n Consistent usage, as reflected in numerous judicial opinions, can be an\\nauthoritative source of common parlance. As the Supreme Court recently ob-\\nserved, “[w]hat the dictionaries suggest, legal authorities confirm.” New Prime\\n 5\\n\\f Case: 18-50536 Document: 00515018844 Page: 6 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50536\\nInc. v. Oliveira, 139 S. Ct. 532, 540 (2019) (surveying judicial opinions for evi-\\ndence of semantic meaning). And decades of legal authorities consistently refer\\nto drunk driving collisions as “accidents.” See, e.g., Montanile v. Bd. of Trustees\\nof Nat. Elevator Indus. Health Benefit Plan, 136 S. Ct. 651, 655 (2016) (“In\\nDecember 2008, a drunk driver ran through a stop sign and crashed into Mon-\\ntanile’s vehicle. The accident severely injured Montanile.”); Perkins v. F.I.E.\\nCorp., 762 F.2d 1250, 1271 n.57 (5th Cir. 1985) (“At the time of the accident,\\nthe car was being driven by a highly intoxicated driver at speeds in excess of\\n100 m.p.h.”); Hernandez v. State, 556 S.W.3d 308, 331 n.4 (Tex. Crim. App.\\n2017) (“[W]e held that there was a multiple-punishment violation where Bigon\\nhad been convicted of intoxication manslaughter, manslaughter, and felony\\nmurder after a car accident.”); Employees Ret. Sys. of Texas v. Duenez, 288\\nS.W.3d 905, 912 (Tex. 2009) (Hecht, J., dissenting) (“The plan paid for health\\ncare for Duenez’s daughter Ashley, who along with her parents and siblings\\nwas injured in a car accident with a drunk driver.”); Smith v. Sewell, 858\\nS.W.2d 350, 351 (Tex. 1993) (“[Plaintiff] became intoxicated at . . . a bar . . .\\n[and on] his way home, [] lost control of his car and was severely injured in the\\nresulting one-car accident.”); Lenoir v. U.T. Physicians, 491 S.W.3d 68, 82–83\\n(Tex. App.—Houston [1st Dist.] 2016, pet. denied) (“The governmental unit and\\nthe engineering firm were sued for failing to design proper signage that, the\\nplaintiffs claimed, would have prevented a drunk driver from entering an exit\\nramp and causing a car accident.”); Biaggi v. Patrizio Rest. Inc., 149 S.W.3d\\n300, 303 (Tex. App.—Dallas 2004, pet. denied) (“[Plaintiff] herself had been in\\ncar accidents she caused when she was impaired by drug usage.”); Venetoulias\\nv. O’Brien, 909 S.W.2d 236, 239 (Tex. App.—Houston [14th Dist.] 1995, writ\\ndism’d by agr.) (“O’Brien was injured in a one car accident while she was in-\\ntoxicated.”).\\n\\n\\n 6\\n\\f Case: 18-50536 Document: 00515018844 Page: 7 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50536\\n Given the choice between the common usage practiced by federal and\\nstate courts across the country, and the idiosyncratic usage urged by counsel\\nhere, our decision is easy.\\n Moreover, under Cincinnati’s theory of interpretation, it is not just drunk\\ndriving collisions that would be excluded from coverage. As counsel acknowl-\\nedged during oral argument, a collision caused by texting while driving would\\nalso not be an accident. A collision caused by eating while driving would not\\nbe an accident. And a collision caused by doing makeup while driving would\\nnot be an accident. In each of these scenarios, after all, a driver has made an\\nintentional decision that contributes to an accident.\\n But this is implausible on its face. Indeed, it would defeat the widely\\nheld expectations of the countless insureds who purchase automobile insur-\\nance precisely to protect against these kinds of “accidents.”\\n In sum, we have no difficulty concluding that drunk driving collisions\\nare indeed “accidents,” as a matter of common parlance as well as proper policy\\ninterpretation.\\n C.\\n Nor do we accept Cincinnati’s suggestion that Texas Supreme Court\\nprecedent commands a different result.\\n Cincinnati points out that, under Texas Supreme Court precedent, a col-\\nlision is not an “accident” if the collision is “‘highly probable’ because it was\\n‘the natural and expected result of the insured’s actions.’” Nat’l Union Fire\\nIns. Co. of Pittsburgh v. Puget Plastics Corp., 532 F.3d 398, 402 (5th Cir. 2008)\\n(quoting Lamar Homes, 242 S.W.3d at 9). See also Lamar Homes, 242 S.W.3d\\nat 9 (“[A] claim does not involve an accident or occurrence when either direct\\nallegations purport that the insured intended the injury (which is presumed in\\ncases of intentional tort) or circumstances confirm that the resulting damage\\n\\n\\n 7\\n\\f Case: 18-50536 Document: 00515018844 Page: 8 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50536\\nwas the natural and expected result of the insured’s actions, that is, was highly\\nprobable whether the insured was negligent or not.”) (emphasis added).\\n But the collision here was neither “highly probable” nor the “natural and\\nexpected” result of Sanchez’s intoxicated driving. “Probable” means “more\\nlikely than not.” Parker v. Employers Mut. Liab. Ins. Co. of Wis., 440 S.W.2d\\n43, 47 (Tex. 1969). Likewise, for something to be “natural and expected,” it\\nmust be so obviously foreseeable that courts may conclude that the tortfeasor\\nintended it to happen. See Lamar Homes, 242 S.W.3d at 9. As dangerous as\\ndrunk driving is, it does not make collisions “more likely than not”—or the\\n“expected” result of intoxicated driving.\\n In addition, the Texas Supreme Court has rejected the notion, floated by\\nCincinnati here, that “if an actor intended to engage in the conduct that gave\\nrise to the injury, there can be no ‘accident.’” Trinity Universal Insurance Co.\\nv. Cowan, 945 S.W.2d 819, 828 (Tex. 1997). Likewise, the Texas Supreme\\nCourt has rejected the suggestion that mere foreseeability is sufficient to es-\\ntablish intentional conduct. See Lamar Homes, 242 S.W.3d at 8 (“[We] did not\\nadopt foreseeability as the boundary between accidental and intentional con-\\nduct. Insurance is typically priced and purchased on the basis of foreseeable\\nrisks, and reading [precedent] as the carrier urges would undermine the basis\\nfor most insurance coverage.”).\\n In sum, nothing in Texas law requires us to construe the term “accident”\\nin a manner contrary to its plain and widely held meaning.\\n ***\\n We reverse the grant of summary judgment and remand for further con-\\nsideration. 2\\n\\n\\n 2 Cincinnati raises two alternative grounds for granting summary judgment. First, it\\nargues that Sanchez was not an “insured” under the policies at the time of accident because\\nof his conduct. Second, it asserts that the “general public policies of Texas” preclude coverage\\n 8\\n\\f Case: 18-50536 Document: 00515018844 Page: 9 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50536\\n\\n\\n\\n\\nof Sanchez’s exemplary damages. See Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246\\nS.W.3d 653, 655 (Tex. 2008). The district court did not reach these issues. We decline to\\naddress them for the first time on appeal.\\n 9\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4413310/\", \"author_raw\": \"JAMES C. HO, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"JAMES"},"judge2":{"kind":"string","value":"JONES"},"judge3":{"kind":"string","value":"OLDHAM"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4636057/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Richard Brett FREDERKING, Plaintiff - Appellant v. CINCINNATI INSURANCE COMPANY, Defendant - Appellee\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-02\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-50536 Document: 00515018844 Page: 1 Date Filed: 07/02/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n\n No. 18-50536 FILED\n July 2, 2019\n Lyle W. Cayce\nRICHARD BRETT FREDERKING, Clerk\n\n Plaintiff - Appellant\n\nv.\n\nCINCINNATI INSURANCE COMPANY,\n\n Defendant - Appellee\n\n\n\n\n Appeal from the United States District Court\n for the Western District of Texas\n\n\nBefore JONES, HO, and OLDHAM, Circuit Judges.\nJAMES C. HO, Circuit Judge:\n Only an insurance company could come up with the policy interpretation\nadvanced here. Cincinnati Insurance Company theorizes that its automobile\npolicies do not cover injuries caused by drunk driving collisions, because such\ncollisions are not “accidents.” Its logic is this: intentional acts are not acci-\ndents, and drunk drivers make the intentional choice to drink and then drive.\n This theory of interpretation conflicts with the plain meaning and com-\nmon usage of the word “accident”—and defies the understanding and expecta-\ntion of everyone who drives a car. Not surprisingly, no court has, to our\nknowledge, endorsed the policy interpretation advanced here, and Cincinnati\n\f Case: 18-50536 Document: 00515018844 Page: 2 Date Filed: 07/02/2019\n\n\n\n No. 18-50536\ncites none (other than the district court in this case). We reverse and remand\nfor further proceedings.\n I.\n Carlos Xavier Sanchez was driving under the influence of alcohol when\nhe failed to yield the right of way, thereby colliding with another car and in-\njuring Richard Brett Frederking. At the time, Sanchez was driving a truck\nassigned to him by his employer, Advantage Plumbing Services. Advantage,\nin turn, is insured by Cincinnati.\n Frederking sued both Sanchez and Advantage in Texas state court. The\njury found that Sanchez’s conduct was grossly negligent, and that Advantage\nnegligently entrusted Sanchez with the vehicle. The jury held Sanchez and\nAdvantage jointly and severally liable for $137,025 in compensatory damages.\nIt further awarded $207,550 in exemplary damages for Sanchez’s gross negli-\ngence.\n As Advantage’s insurer, Cincinnati agreed to pay Frederking the amount\nof the compensatory damages award, thereby discharging Advantage’s liabil-\nity. But when Frederking demanded that Cincinnati also pay Sanchez’s exem-\nplary damages, Cincinnati refused. In response, Frederking brought this suit\nagainst Cincinnati.\n Frederking is a third-party beneficiary of Advantage’s insurance policies\nwith Cincinnati. Those policies have two relevant coverage sections. First, the\nAuto Policy covers damages resulting from “accidents” caused by Advantage’s\nemployees that produce defined injuries. Second, the Commercial Umbrella\nLiability Coverage applies where the Auto Policy does not. It also covers sums\nin excess of the Auto Policy’s limits. For our purposes, however, its coverage is\nessentially identical to the Auto Policy, because it covers “occurrences”—which\nincludes (but is not limited to) “accidents” resulting in defined injuries.\n\n\n 2\n\f Case: 18-50536 Document: 00515018844 Page: 3 Date Filed: 07/02/2019\n\n\n\n No. 18-50536\n When Cincinnati refused to pay the exemplary damages award, Frederk-\ning brought this suit for breach of contract and declaratory judgment in Texas\nstate court. Cincinnati removed to federal court and counterclaimed for de-\nclaratory judgment. Cincinnati then moved for summary judgment on various\ngrounds, namely, that (1) Sanchez was not a covered “insured” at the time of\nthe collision; (2) Sanchez’s grossly negligent conduct could not result in a cov-\nered “accident”; (3) the exemplary damages award is uninsurable as a matter\nof contract and public policy; and (4) Cincinnati has no duty to indemnify\nSanchez. Frederking cross-moved for partial summary judgment on the de-\nclaratory judgment claims and argued that a fact issue remained about\nwhether Sanchez was an “insured.”\n The district court granted summary judgment to Cincinnati. In particu-\nlar, it concluded that Sanchez’s intentional decision to drive while intoxicated\nmeant that the collision was not an “accident” under Texas law.\n II.\n “An interpretation of an insurance policy provision is an issue of law re-\nviewed de novo.” Performance Autoplex II Ltd. v. Mid-Continent Cas. Co., 322\nF.3d 847, 853 (5th Cir. 2003) (per curiam) (citing Am. States Ins. Co. v. Bailey,\n133 F.3d 363, 369 (5th Cir. 1998)).\n Both of the policies at issue here cover damages resulting from “acci-\ndents.” Neither policy defines the term “accidents.” 1 So we are left to give this\nundefined term its “generally accepted or commonly understood meaning.” La-\nmar Homes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 8 (Tex. 2007) (citing\nW. Reserve Life Ins. v. Meadows, 261 S.W.2d 554, 557 (Tex. 1953)).\n\n\n\n 1 The policy simply says that the term “includes continuous or repeated exposure to\nthe same conditions resulting in” injury. This appears to be common policy language. See,\ne.g., Fed. Ins. Co. v. Ace Prop. & Cas. Co., 429 F.3d 120, 122 (5th Cir. 2005) (same); Lamar\nHomes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 6 (Tex. 2007) (same).\n 3\n\f Case: 18-50536 Document: 00515018844 Page: 4 Date Filed: 07/02/2019\n\n\n\n No. 18-50536\n For the reasons explained below, we conclude that, as a matter of plain\nmeaning and common usage, the term “accident” plainly includes the drunk\ndriving collision that gave rise to this dispute.\n A.\n Consistent with ordinary usage, the Supreme Court of Texas has defined\nthe term “accident” as a “fortuitous, unexpected, and unintended event.” Id.\n(citing 1A JOHN ALAN APPLEMAN & JEAN APPLEMAN, INSURANCE LAW AND\nPRACTICE § 360 at 449 (1981)). See also BRYAN A. GARNER, GARNER’S DICTION-\nARY OF LEGAL USAGE 12 (3d ed., 2011) (“[Accident, mishap, casualty, and\n(sometimes) incident] denote a chance event that brings injury or loss. Acci-\ndent, the broadest term, refers to an unforeseen event involving an injury or\nloss that ranges from slight (e.g., spilling a drop from a tepid cup of water) to\ngrave (e.g., running a cruise ship into an iceberg). . . . In the context of insur-\nance, . . . accident insurance covers injuries to oneself by some lack of care or\ninattention, or perhaps by some occurrence wholly outside one’s control.”); Ac-\ncident, BLACK’S LAW DICTIONARY 16 (9th ed., 2009) (“An unintended and un-\nforeseeable injurious occurrence; something that does not occur in the usual\ncourse of events or that could not be reasonably anticipated.”).\n Put another way, the term “accident” is defined by what it excludes—\nintentional acts. See, e.g., Argonaut Sw. Ins. Co. v. Maupin, 500 S.W.2d 633,\n636 (Tex. 1973) (“An intentional tort is neither an ‘accident’ nor ‘occurrence’\nwithin the terms of the policy.”).\n Not surprisingly, then, we ordinarily describe automobile collisions as\n“accidents” in common parlance. As the Texas Supreme Court has stated,\n“[t]he term ‘auto accident’ refers to situations where one or more vehicles are\ninvolved with another vehicle, object, or person.” Farmers Texas County Mut.\nIns. Co. v. Griffin, 955 S.W.2d 81, 83 (Tex. 1997) (per curiam) (quoting State\nFarm Mut. Ins. Co. v. Peck, 900 S.W.2d 910, 913 (Tex. App.—Amarillo 1995,\n 4\n\f Case: 18-50536 Document: 00515018844 Page: 5 Date Filed: 07/02/2019\n\n\n\n No. 18-50536\nno writ)). See also Peck, 900 S.W.2d at 913 (“[T]he ordinary and generally ac-\ncepted meaning of the term ‘auto accident’ refers to situations where one or\nmore vehicles are involved in some type of collision or near collision with an-\nother vehicle, object, or person.”) (citation omitted).\n There is no reason to describe the automobile collision in this case as\nanything other than an “accident.” Certainly no one contends that Sanchez\nintended his vehicle to collide with Frederking’s vehicle. Nor does anyone sug-\ngest that Sanchez drank in hopes of causing an automobile collision. Accord-\ningly, we conclude that this case falls well within the common understanding\nof the term “accident.”\n B.\n Cincinnati contends otherwise. It argues that drunk driving collisions\nare not “accidents,” because the decision to drink (and then later drive) was\nintentional—even though there was admittedly no intent to collide with an-\nother vehicle. As Cincinnati points out, a jury found that Sanchez intentionally\ndecided to drive while intoxicated, with “actual, subjective awareness” of the\n“extreme degree of risk, considering the probability and magnitude of the po-\ntential harm to others.” TEX. CIV. PRAC. & REM. CODE § 41.001(11) (defining\nthe standard for gross negligence). As a result, Sanchez’s subjective awareness\nof the risk he posed renders the collision intentional, rather than accidental.\n There are a number of problems with this theory. To begin with, it is\ncontrary to common parlance. To illustrate: During oral argument, counsel\nfor Cincinnati acknowledged that, under its understanding of the term “acci-\ndent,” the phrase “drunk driving accident” would have to be an oxymoron. But\nit is not. Far from it, “drunk driving accident” is a matter of common usage.\n Consistent usage, as reflected in numerous judicial opinions, can be an\nauthoritative source of common parlance. As the Supreme Court recently ob-\nserved, “[w]hat the dictionaries suggest, legal authorities confirm.” New Prime\n 5\n\f Case: 18-50536 Document: 00515018844 Page: 6 Date Filed: 07/02/2019\n\n\n\n No. 18-50536\nInc. v. Oliveira, 139 S. Ct. 532, 540 (2019) (surveying judicial opinions for evi-\ndence of semantic meaning). And decades of legal authorities consistently refer\nto drunk driving collisions as “accidents.” See, e.g., Montanile v. Bd. of Trustees\nof Nat. Elevator Indus. Health Benefit Plan, 136 S. Ct. 651, 655 (2016) (“In\nDecember 2008, a drunk driver ran through a stop sign and crashed into Mon-\ntanile’s vehicle. The accident severely injured Montanile.”); Perkins v. F.I.E.\nCorp., 762 F.2d 1250, 1271 n.57 (5th Cir. 1985) (“At the time of the accident,\nthe car was being driven by a highly intoxicated driver at speeds in excess of\n100 m.p.h.”); Hernandez v. State, 556 S.W.3d 308, 331 n.4 (Tex. Crim. App.\n2017) (“[W]e held that there was a multiple-punishment violation where Bigon\nhad been convicted of intoxication manslaughter, manslaughter, and felony\nmurder after a car accident.”); Employees Ret. Sys. of Texas v. Duenez, 288\nS.W.3d 905, 912 (Tex. 2009) (Hecht, J., dissenting) (“The plan paid for health\ncare for Duenez’s daughter Ashley, who along with her parents and siblings\nwas injured in a car accident with a drunk driver.”); Smith v. Sewell, 858\nS.W.2d 350, 351 (Tex. 1993) (“[Plaintiff] became intoxicated at . . . a bar . . .\n[and on] his way home, [] lost control of his car and was severely injured in the\nresulting one-car accident.”); Lenoir v. U.T. Physicians, 491 S.W.3d 68, 82–83\n(Tex. App.—Houston [1st Dist.] 2016, pet. denied) (“The governmental unit and\nthe engineering firm were sued for failing to design proper signage that, the\nplaintiffs claimed, would have prevented a drunk driver from entering an exit\nramp and causing a car accident.”); Biaggi v. Patrizio Rest. Inc., 149 S.W.3d\n300, 303 (Tex. App.—Dallas 2004, pet. denied) (“[Plaintiff] herself had been in\ncar accidents she caused when she was impaired by drug usage.”); Venetoulias\nv. O’Brien, 909 S.W.2d 236, 239 (Tex. App.—Houston [14th Dist.] 1995, writ\ndism’d by agr.) (“O’Brien was injured in a one car accident while she was in-\ntoxicated.”).\n\n\n 6\n\f Case: 18-50536 Document: 00515018844 Page: 7 Date Filed: 07/02/2019\n\n\n\n No. 18-50536\n Given the choice between the common usage practiced by federal and\nstate courts across the country, and the idiosyncratic usage urged by counsel\nhere, our decision is easy.\n Moreover, under Cincinnati’s theory of interpretation, it is not just drunk\ndriving collisions that would be excluded from coverage. As counsel acknowl-\nedged during oral argument, a collision caused by texting while driving would\nalso not be an accident. A collision caused by eating while driving would not\nbe an accident. And a collision caused by doing makeup while driving would\nnot be an accident. In each of these scenarios, after all, a driver has made an\nintentional decision that contributes to an accident.\n But this is implausible on its face. Indeed, it would defeat the widely\nheld expectations of the countless insureds who purchase automobile insur-\nance precisely to protect against these kinds of “accidents.”\n In sum, we have no difficulty concluding that drunk driving collisions\nare indeed “accidents,” as a matter of common parlance as well as proper policy\ninterpretation.\n C.\n Nor do we accept Cincinnati’s suggestion that Texas Supreme Court\nprecedent commands a different result.\n Cincinnati points out that, under Texas Supreme Court precedent, a col-\nlision is not an “accident” if the collision is “‘highly probable’ because it was\n‘the natural and expected result of the insured’s actions.’” Nat’l Union Fire\nIns. Co. of Pittsburgh v. Puget Plastics Corp., 532 F.3d 398, 402 (5th Cir. 2008)\n(quoting Lamar Homes, 242 S.W.3d at 9). See also Lamar Homes, 242 S.W.3d\nat 9 (“[A] claim does not involve an accident or occurrence when either direct\nallegations purport that the insured intended the injury (which is presumed in\ncases of intentional tort) or circumstances confirm that the resulting damage\n\n\n 7\n\f Case: 18-50536 Document: 00515018844 Page: 8 Date Filed: 07/02/2019\n\n\n\n No. 18-50536\nwas the natural and expected result of the insured’s actions, that is, was highly\nprobable whether the insured was negligent or not.”) (emphasis added).\n But the collision here was neither “highly probable” nor the “natural and\nexpected” result of Sanchez’s intoxicated driving. “Probable” means “more\nlikely than not.” Parker v. Employers Mut. Liab. Ins. Co. of Wis., 440 S.W.2d\n43, 47 (Tex. 1969). Likewise, for something to be “natural and expected,” it\nmust be so obviously foreseeable that courts may conclude that the tortfeasor\nintended it to happen. See Lamar Homes, 242 S.W.3d at 9. As dangerous as\ndrunk driving is, it does not make collisions “more likely than not”—or the\n“expected” result of intoxicated driving.\n In addition, the Texas Supreme Court has rejected the notion, floated by\nCincinnati here, that “if an actor intended to engage in the conduct that gave\nrise to the injury, there can be no ‘accident.’” Trinity Universal Insurance Co.\nv. Cowan, 945 S.W.2d 819, 828 (Tex. 1997). Likewise, the Texas Supreme\nCourt has rejected the suggestion that mere foreseeability is sufficient to es-\ntablish intentional conduct. See Lamar Homes, 242 S.W.3d at 8 (“[We] did not\nadopt foreseeability as the boundary between accidental and intentional con-\nduct. Insurance is typically priced and purchased on the basis of foreseeable\nrisks, and reading [precedent] as the carrier urges would undermine the basis\nfor most insurance coverage.”).\n In sum, nothing in Texas law requires us to construe the term “accident”\nin a manner contrary to its plain and widely held meaning.\n ***\n We reverse the grant of summary judgment and remand for further con-\nsideration. 2\n\n\n 2 Cincinnati raises two alternative grounds for granting summary judgment. First, it\nargues that Sanchez was not an “insured” under the policies at the time of accident because\nof his conduct. Second, it asserts that the “general public policies of Texas” preclude coverage\n 8\n\f Case: 18-50536 Document: 00515018844 Page: 9 Date Filed: 07/02/2019\n\n\n\n No. 18-50536\n\n\n\n\nof Sanchez’s exemplary damages. See Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246\nS.W.3d 653, 655 (Tex. 2008). The district court did not reach these issues. We decline to\naddress them for the first time on appeal.\n 9\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Richard Brett FREDERKING, Plaintiff - Appellant v. CINCINNATI INSURANCE COMPANY, Defendant - Appellee\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-02\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-50536 Document: 00515018844 Page: 1 Date Filed: 07/02/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 18-50536 FILED\\n July 2, 2019\\n Lyle W. Cayce\\nRICHARD BRETT FREDERKING, Clerk\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nCINCINNATI INSURANCE COMPANY,\\n\\n Defendant - Appellee\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore JONES, HO, and OLDHAM, Circuit Judges.\\nJAMES C. HO, Circuit Judge:\\n Only an insurance company could come up with the policy interpretation\\nadvanced here. Cincinnati Insurance Company theorizes that its automobile\\npolicies do not cover injuries caused by drunk driving collisions, because such\\ncollisions are not “accidents.” Its logic is this: intentional acts are not acci-\\ndents, and drunk drivers make the intentional choice to drink and then drive.\\n This theory of interpretation conflicts with the plain meaning and com-\\nmon usage of the word “accident”—and defies the understanding and expecta-\\ntion of everyone who drives a car. Not surprisingly, no court has, to our\\nknowledge, endorsed the policy interpretation advanced here, and Cincinnati\\n\\f Case: 18-50536 Document: 00515018844 Page: 2 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50536\\ncites none (other than the district court in this case). We reverse and remand\\nfor further proceedings.\\n I.\\n Carlos Xavier Sanchez was driving under the influence of alcohol when\\nhe failed to yield the right of way, thereby colliding with another car and in-\\njuring Richard Brett Frederking. At the time, Sanchez was driving a truck\\nassigned to him by his employer, Advantage Plumbing Services. Advantage,\\nin turn, is insured by Cincinnati.\\n Frederking sued both Sanchez and Advantage in Texas state court. The\\njury found that Sanchez’s conduct was grossly negligent, and that Advantage\\nnegligently entrusted Sanchez with the vehicle. The jury held Sanchez and\\nAdvantage jointly and severally liable for $137,025 in compensatory damages.\\nIt further awarded $207,550 in exemplary damages for Sanchez’s gross negli-\\ngence.\\n As Advantage’s insurer, Cincinnati agreed to pay Frederking the amount\\nof the compensatory damages award, thereby discharging Advantage’s liabil-\\nity. But when Frederking demanded that Cincinnati also pay Sanchez’s exem-\\nplary damages, Cincinnati refused. In response, Frederking brought this suit\\nagainst Cincinnati.\\n Frederking is a third-party beneficiary of Advantage’s insurance policies\\nwith Cincinnati. Those policies have two relevant coverage sections. First, the\\nAuto Policy covers damages resulting from “accidents” caused by Advantage’s\\nemployees that produce defined injuries. Second, the Commercial Umbrella\\nLiability Coverage applies where the Auto Policy does not. It also covers sums\\nin excess of the Auto Policy’s limits. For our purposes, however, its coverage is\\nessentially identical to the Auto Policy, because it covers “occurrences”—which\\nincludes (but is not limited to) “accidents” resulting in defined injuries.\\n\\n\\n 2\\n\\f Case: 18-50536 Document: 00515018844 Page: 3 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50536\\n When Cincinnati refused to pay the exemplary damages award, Frederk-\\ning brought this suit for breach of contract and declaratory judgment in Texas\\nstate court. Cincinnati removed to federal court and counterclaimed for de-\\nclaratory judgment. Cincinnati then moved for summary judgment on various\\ngrounds, namely, that (1) Sanchez was not a covered “insured” at the time of\\nthe collision; (2) Sanchez’s grossly negligent conduct could not result in a cov-\\nered “accident”; (3) the exemplary damages award is uninsurable as a matter\\nof contract and public policy; and (4) Cincinnati has no duty to indemnify\\nSanchez. Frederking cross-moved for partial summary judgment on the de-\\nclaratory judgment claims and argued that a fact issue remained about\\nwhether Sanchez was an “insured.”\\n The district court granted summary judgment to Cincinnati. In particu-\\nlar, it concluded that Sanchez’s intentional decision to drive while intoxicated\\nmeant that the collision was not an “accident” under Texas law.\\n II.\\n “An interpretation of an insurance policy provision is an issue of law re-\\nviewed de novo.” Performance Autoplex II Ltd. v. Mid-Continent Cas. Co., 322\\nF.3d 847, 853 (5th Cir. 2003) (per curiam) (citing Am. States Ins. Co. v. Bailey,\\n133 F.3d 363, 369 (5th Cir. 1998)).\\n Both of the policies at issue here cover damages resulting from “acci-\\ndents.” Neither policy defines the term “accidents.” 1 So we are left to give this\\nundefined term its “generally accepted or commonly understood meaning.” La-\\nmar Homes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 8 (Tex. 2007) (citing\\nW. Reserve Life Ins. v. Meadows, 261 S.W.2d 554, 557 (Tex. 1953)).\\n\\n\\n\\n 1 The policy simply says that the term “includes continuous or repeated exposure to\\nthe same conditions resulting in” injury. This appears to be common policy language. See,\\ne.g., Fed. Ins. Co. v. Ace Prop. & Cas. Co., 429 F.3d 120, 122 (5th Cir. 2005) (same); Lamar\\nHomes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 6 (Tex. 2007) (same).\\n 3\\n\\f Case: 18-50536 Document: 00515018844 Page: 4 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50536\\n For the reasons explained below, we conclude that, as a matter of plain\\nmeaning and common usage, the term “accident” plainly includes the drunk\\ndriving collision that gave rise to this dispute.\\n A.\\n Consistent with ordinary usage, the Supreme Court of Texas has defined\\nthe term “accident” as a “fortuitous, unexpected, and unintended event.” Id.\\n(citing 1A JOHN ALAN APPLEMAN & JEAN APPLEMAN, INSURANCE LAW AND\\nPRACTICE § 360 at 449 (1981)). See also BRYAN A. GARNER, GARNER’S DICTION-\\nARY OF LEGAL USAGE 12 (3d ed., 2011) (“[Accident, mishap, casualty, and\\n(sometimes) incident] denote a chance event that brings injury or loss. Acci-\\ndent, the broadest term, refers to an unforeseen event involving an injury or\\nloss that ranges from slight (e.g., spilling a drop from a tepid cup of water) to\\ngrave (e.g., running a cruise ship into an iceberg). . . . In the context of insur-\\nance, . . . accident insurance covers injuries to oneself by some lack of care or\\ninattention, or perhaps by some occurrence wholly outside one’s control.”); Ac-\\ncident, BLACK’S LAW DICTIONARY 16 (9th ed., 2009) (“An unintended and un-\\nforeseeable injurious occurrence; something that does not occur in the usual\\ncourse of events or that could not be reasonably anticipated.”).\\n Put another way, the term “accident” is defined by what it excludes—\\nintentional acts. See, e.g., Argonaut Sw. Ins. Co. v. Maupin, 500 S.W.2d 633,\\n636 (Tex. 1973) (“An intentional tort is neither an ‘accident’ nor ‘occurrence’\\nwithin the terms of the policy.”).\\n Not surprisingly, then, we ordinarily describe automobile collisions as\\n“accidents” in common parlance. As the Texas Supreme Court has stated,\\n“[t]he term ‘auto accident’ refers to situations where one or more vehicles are\\ninvolved with another vehicle, object, or person.” Farmers Texas County Mut.\\nIns. Co. v. Griffin, 955 S.W.2d 81, 83 (Tex. 1997) (per curiam) (quoting State\\nFarm Mut. Ins. Co. v. Peck, 900 S.W.2d 910, 913 (Tex. App.—Amarillo 1995,\\n 4\\n\\f Case: 18-50536 Document: 00515018844 Page: 5 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50536\\nno writ)). See also Peck, 900 S.W.2d at 913 (“[T]he ordinary and generally ac-\\ncepted meaning of the term ‘auto accident’ refers to situations where one or\\nmore vehicles are involved in some type of collision or near collision with an-\\nother vehicle, object, or person.”) (citation omitted).\\n There is no reason to describe the automobile collision in this case as\\nanything other than an “accident.” Certainly no one contends that Sanchez\\nintended his vehicle to collide with Frederking’s vehicle. Nor does anyone sug-\\ngest that Sanchez drank in hopes of causing an automobile collision. Accord-\\ningly, we conclude that this case falls well within the common understanding\\nof the term “accident.”\\n B.\\n Cincinnati contends otherwise. It argues that drunk driving collisions\\nare not “accidents,” because the decision to drink (and then later drive) was\\nintentional—even though there was admittedly no intent to collide with an-\\nother vehicle. As Cincinnati points out, a jury found that Sanchez intentionally\\ndecided to drive while intoxicated, with “actual, subjective awareness” of the\\n“extreme degree of risk, considering the probability and magnitude of the po-\\ntential harm to others.” TEX. CIV. PRAC. & REM. CODE § 41.001(11) (defining\\nthe standard for gross negligence). As a result, Sanchez’s subjective awareness\\nof the risk he posed renders the collision intentional, rather than accidental.\\n There are a number of problems with this theory. To begin with, it is\\ncontrary to common parlance. To illustrate: During oral argument, counsel\\nfor Cincinnati acknowledged that, under its understanding of the term “acci-\\ndent,” the phrase “drunk driving accident” would have to be an oxymoron. But\\nit is not. Far from it, “drunk driving accident” is a matter of common usage.\\n Consistent usage, as reflected in numerous judicial opinions, can be an\\nauthoritative source of common parlance. As the Supreme Court recently ob-\\nserved, “[w]hat the dictionaries suggest, legal authorities confirm.” New Prime\\n 5\\n\\f Case: 18-50536 Document: 00515018844 Page: 6 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50536\\nInc. v. Oliveira, 139 S. Ct. 532, 540 (2019) (surveying judicial opinions for evi-\\ndence of semantic meaning). And decades of legal authorities consistently refer\\nto drunk driving collisions as “accidents.” See, e.g., Montanile v. Bd. of Trustees\\nof Nat. Elevator Indus. Health Benefit Plan, 136 S. Ct. 651, 655 (2016) (“In\\nDecember 2008, a drunk driver ran through a stop sign and crashed into Mon-\\ntanile’s vehicle. The accident severely injured Montanile.”); Perkins v. F.I.E.\\nCorp., 762 F.2d 1250, 1271 n.57 (5th Cir. 1985) (“At the time of the accident,\\nthe car was being driven by a highly intoxicated driver at speeds in excess of\\n100 m.p.h.”); Hernandez v. State, 556 S.W.3d 308, 331 n.4 (Tex. Crim. App.\\n2017) (“[W]e held that there was a multiple-punishment violation where Bigon\\nhad been convicted of intoxication manslaughter, manslaughter, and felony\\nmurder after a car accident.”); Employees Ret. Sys. of Texas v. Duenez, 288\\nS.W.3d 905, 912 (Tex. 2009) (Hecht, J., dissenting) (“The plan paid for health\\ncare for Duenez’s daughter Ashley, who along with her parents and siblings\\nwas injured in a car accident with a drunk driver.”); Smith v. Sewell, 858\\nS.W.2d 350, 351 (Tex. 1993) (“[Plaintiff] became intoxicated at . . . a bar . . .\\n[and on] his way home, [] lost control of his car and was severely injured in the\\nresulting one-car accident.”); Lenoir v. U.T. Physicians, 491 S.W.3d 68, 82–83\\n(Tex. App.—Houston [1st Dist.] 2016, pet. denied) (“The governmental unit and\\nthe engineering firm were sued for failing to design proper signage that, the\\nplaintiffs claimed, would have prevented a drunk driver from entering an exit\\nramp and causing a car accident.”); Biaggi v. Patrizio Rest. Inc., 149 S.W.3d\\n300, 303 (Tex. App.—Dallas 2004, pet. denied) (“[Plaintiff] herself had been in\\ncar accidents she caused when she was impaired by drug usage.”); Venetoulias\\nv. O’Brien, 909 S.W.2d 236, 239 (Tex. App.—Houston [14th Dist.] 1995, writ\\ndism’d by agr.) (“O’Brien was injured in a one car accident while she was in-\\ntoxicated.”).\\n\\n\\n 6\\n\\f Case: 18-50536 Document: 00515018844 Page: 7 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50536\\n Given the choice between the common usage practiced by federal and\\nstate courts across the country, and the idiosyncratic usage urged by counsel\\nhere, our decision is easy.\\n Moreover, under Cincinnati’s theory of interpretation, it is not just drunk\\ndriving collisions that would be excluded from coverage. As counsel acknowl-\\nedged during oral argument, a collision caused by texting while driving would\\nalso not be an accident. A collision caused by eating while driving would not\\nbe an accident. And a collision caused by doing makeup while driving would\\nnot be an accident. In each of these scenarios, after all, a driver has made an\\nintentional decision that contributes to an accident.\\n But this is implausible on its face. Indeed, it would defeat the widely\\nheld expectations of the countless insureds who purchase automobile insur-\\nance precisely to protect against these kinds of “accidents.”\\n In sum, we have no difficulty concluding that drunk driving collisions\\nare indeed “accidents,” as a matter of common parlance as well as proper policy\\ninterpretation.\\n C.\\n Nor do we accept Cincinnati’s suggestion that Texas Supreme Court\\nprecedent commands a different result.\\n Cincinnati points out that, under Texas Supreme Court precedent, a col-\\nlision is not an “accident” if the collision is “‘highly probable’ because it was\\n‘the natural and expected result of the insured’s actions.’” Nat’l Union Fire\\nIns. Co. of Pittsburgh v. Puget Plastics Corp., 532 F.3d 398, 402 (5th Cir. 2008)\\n(quoting Lamar Homes, 242 S.W.3d at 9). See also Lamar Homes, 242 S.W.3d\\nat 9 (“[A] claim does not involve an accident or occurrence when either direct\\nallegations purport that the insured intended the injury (which is presumed in\\ncases of intentional tort) or circumstances confirm that the resulting damage\\n\\n\\n 7\\n\\f Case: 18-50536 Document: 00515018844 Page: 8 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50536\\nwas the natural and expected result of the insured’s actions, that is, was highly\\nprobable whether the insured was negligent or not.”) (emphasis added).\\n But the collision here was neither “highly probable” nor the “natural and\\nexpected” result of Sanchez’s intoxicated driving. “Probable” means “more\\nlikely than not.” Parker v. Employers Mut. Liab. Ins. Co. of Wis., 440 S.W.2d\\n43, 47 (Tex. 1969). Likewise, for something to be “natural and expected,” it\\nmust be so obviously foreseeable that courts may conclude that the tortfeasor\\nintended it to happen. See Lamar Homes, 242 S.W.3d at 9. As dangerous as\\ndrunk driving is, it does not make collisions “more likely than not”—or the\\n“expected” result of intoxicated driving.\\n In addition, the Texas Supreme Court has rejected the notion, floated by\\nCincinnati here, that “if an actor intended to engage in the conduct that gave\\nrise to the injury, there can be no ‘accident.’” Trinity Universal Insurance Co.\\nv. Cowan, 945 S.W.2d 819, 828 (Tex. 1997). Likewise, the Texas Supreme\\nCourt has rejected the suggestion that mere foreseeability is sufficient to es-\\ntablish intentional conduct. See Lamar Homes, 242 S.W.3d at 8 (“[We] did not\\nadopt foreseeability as the boundary between accidental and intentional con-\\nduct. Insurance is typically priced and purchased on the basis of foreseeable\\nrisks, and reading [precedent] as the carrier urges would undermine the basis\\nfor most insurance coverage.”).\\n In sum, nothing in Texas law requires us to construe the term “accident”\\nin a manner contrary to its plain and widely held meaning.\\n ***\\n We reverse the grant of summary judgment and remand for further con-\\nsideration. 2\\n\\n\\n 2 Cincinnati raises two alternative grounds for granting summary judgment. First, it\\nargues that Sanchez was not an “insured” under the policies at the time of accident because\\nof his conduct. Second, it asserts that the “general public policies of Texas” preclude coverage\\n 8\\n\\f Case: 18-50536 Document: 00515018844 Page: 9 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50536\\n\\n\\n\\n\\nof Sanchez’s exemplary damages. See Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246\\nS.W.3d 653, 655 (Tex. 2008). The district court did not reach these issues. We decline to\\naddress them for the first time on appeal.\\n 9\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2975,"cells":{"id":{"kind":"number","value":4636058,"string":"4,636,058"},"name":{"kind":"string","value":"Doctor Joseph A. ZADEH; Jane Doe, Patient, Plaintiffs - Appellants v. Mari ROBINSON, in Her Individual Capacity and in Her Official Capacity; Sharon Pease, in Her Individual Capacity; Kara Kirby, in Her Individual Capacity, Defendants - Appellees"},"name_abbreviation":{"kind":"string","value":"Joseph Zadeh v. Mari Robinson"},"decision_date":{"kind":"string","value":"2019-07-02"},"docket_number":{"kind":"string","value":"17-50518"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before JOLLY, SOUTHWICK, and WILLETT, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"LESLIE H. SOUTHWICK, Circuit Judge\", \"type\": \"010combined\", \"text\": \"Case: 17-50518 Document: 00515018705 Page: 1 Date Filed: 07/02/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 17-50518 July 2, 2019\\n Lyle W. Cayce\\nDOCTOR JOSEPH A. ZADEH; JANE DOE, Patient, Clerk\\n\\n\\n Plaintiffs - Appellants\\n\\nv.\\n\\nMARI ROBINSON, in her individual capacity and in her official capacity;\\nSHARON PEASE, in her individual capacity; KARA KIRBY, in her\\nindividual capacity,\\n\\n Defendants – Appellees\\n\\n\\n\\n Appeals from the United States District Court\\n for the Western District of Texas\\n\\n\\n ON PETITION FOR REHEARING EN BANC\\n\\nBefore JOLLY, SOUTHWICK, and WILLETT, Circuit Judges.\\nLESLIE H. SOUTHWICK, Circuit Judge:\\n No member of the panel nor judge in regular active service requested\\nthat the court be polled on rehearing en banc. The petition for rehearing en\\nbanc is therefore DENIED. See FED. R. APP. P. and 5th Cir. R. 35. Treating\\nthe petition for rehearing en banc as a petition for panel rehearing, the petition\\nis GRANTED. We withdraw our prior opinion, Zadeh v. Robinson, 902 F.3d\\n483 (5th Cir. 2018), and substitute the following.\\n\\n Case: 17-50518 Document: 00515018705 Page: 2 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\n The Texas Medical Board executed an administrative subpoena on\\nDr. Joseph Zadeh’s medical office. Thereafter, Dr. Zadeh and one of his\\npatients sued several Board members under 42 U.S.C. § 1983, claiming that\\nthe Board’s actions violated the Fourth Amendment. The district court\\npartially granted the defendants’ motion to dismiss and later granted their\\nmotion for summary judgment rejecting all remaining claims. We AFFIRM.\\n\\n\\n FACTUAL AND PROCEDURAL BACKGROUND\\n Plaintiff Dr. Joseph Zadeh appeals the dismissal of his Section 1983\\nclaim against several members of the Texas Medical Board who he claims\\nviolated his constitutional rights through a warrantless search of his office and\\nmedical records. Dr. Zadeh, an internal medicine doctor, owns and operates a\\nmedical practice in Euless, Texas. One of his patients, Jane Doe, is also a\\nplaintiff-appellant in this case.\\n Dr. Zadeh was the subject of an administrative proceeding before the\\nState Office of Administrative Hearings (“SOAH”) for violations of the Board’s\\nregulations. The Drug Enforcement Agency (“DEA”) also was investigating\\nhim. Indeed, it appears the Board first learned about allegations against\\nDr. Zadeh when the DEA filed a complaint with the Board about his\\nprescribing practices in September 2013. The DEA investigator emailed a\\nrepresentative of the Board, stating, “I’m at a point in the criminal case that I\\nneed to interview Dr. Zadeh and review his patient files.” The Board then\\ninitiated an investigation.\\n As part of this investigation, Defendants Sharon Pease and Kara Kirby,\\nwho were investigators with the Board, served an administrative subpoena on\\nDr. Zadeh on October 22, 2013. The subpoena had the electronic signature of\\nDefendant Mari Robinson, who was the Executive Director of the Board. The\\n 2\\n\\n Case: 17-50518 Document: 00515018705 Page: 3 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nsubpoena was for the immediate production of the medical records of sixteen\\nof Dr. Zadeh’s patients. Two DEA agents who were investigating related\\ncriminal allegations accompanied Kirby and Pease.\\n The district court found the “facts surrounding the execution of the\\nsubpoena” to be “largely undisputed.” Dr. Zadeh was not present when the\\ninvestigators arrived. The subpoena was handed to the doctor’s assistant. The\\ninvestigators sat in the medical office waiting room to give the doctor time to\\nappear. While they waited, the assistant spoke on the phone with Dr. Zadeh,\\nhis lawyer, and his brother who also is a lawyer. The assistant testified that\\nafter these calls had occurred but no permission to proceed had been given, the\\ninvestigators told her they would suspend Dr. Zadeh’s license if the records\\nthey sought were not produced. The investigators admit something was said\\nthat was akin to a promise of some vague “disciplinary action.” What was said\\nat that point is at least unclear. The assistant eventually complied, taking the\\ndefendants into a conference room and delivering the requested records to\\nthem. Although most of their time was spent inside the public waiting area or\\nconference room, the investigators also approached the medical assistant to\\nask for help while she was in exam rooms and later in a storage room.\\n As a result of that search, Dr. Zadeh and his patient, Jane Doe, sued\\nRobinson, Pease, and Kirby in their individual capacities and Robinson in her\\nofficial capacity in the United States District Court for the Western District of\\nTexas. They alleged the defendants’ actions violated their Fourth Amendment,\\ndue process, and privacy rights. The plaintiffs sought monetary damages\\nunder 42 U.S.C. § 1983 as well as declaratory relief. The defendants moved to\\ndismiss the claims on these grounds: (1) the plaintiffs lacked standing; (2) the\\nYounger abstention doctrine barred the requests for declaratory relief; (3) the\\nclaim against Robinson in her official capacity was barred by the doctrine of\\n 3\\n\\n Case: 17-50518 Document: 00515018705 Page: 4 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nsovereign immunity; (4) the doctrine of qualified immunity applied to the\\nclaims against the defendants in their individual capacities.\\n In ruling on the motion to dismiss, the district court held Dr. Zadeh had\\nstanding to pursue declaratory relief, but Jane Doe did not. Nonetheless, the\\ndistrict court concluded that “the Younger abstention doctrine require[d] [it] to\\nabstain from adjudicating Plaintiff Zadeh’s claims for declaratory relief.” The\\ndistrict court also held that sovereign immunity barred the plaintiffs’ claims\\nfor monetary damages against Robinson in her official capacity. Finally, the\\ncourt concluded that the defendants were entitled to qualified immunity for\\nthe privacy and due process claims. The only part of the suit left, then, was\\nDr. Zadeh’s claim that the defendants violated his clearly established Fourth\\nAmendment rights during the search of his office.\\n The defendants moved for summary judgment on “whether Defendants\\nexceeded their statutory subpoena authority by searching and inspecting\\nPlaintiff’s office and records.” Although the plaintiffs alleged that the\\ninvestigators performed a thorough search of Dr. Zadeh’s office, the district\\ncourt found that the record did not support this allegation. Instead, the district\\ncourt determined that the “Defendants’ presence at Plaintiff’s office was solely\\nto execute the subpoena instanter.” The district court also held that Robinson\\nwas not liable as she neither affirmatively participated in the alleged search\\nnor implemented unconstitutional policies that caused the alleged\\nconstitutional deprivation. Further, there was “no evidence Defendants Pease\\nand Kirby inspected Plaintiff’s office or searched his records.” The plaintiffs\\ntimely appealed.\\n\\n\\n\\n\\n 4\\n\\n Case: 17-50518 Document: 00515018705 Page: 5 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\n DISCUSSION\\n The plaintiffs appeal both the order granting the motion to dismiss in\\npart and the order granting the motion for summary judgment. Although we\\nreview both de novo, a different legal standard applies to each:\\n In the former, the central issue is whether, in the light most\\n favorable to the plaintiff, the complaint states a valid claim for\\n relief. In the latter, we go beyond the pleadings to determine\\n whether there is no genuine issue as to any material fact and that\\n the movant is entitled to judgment as a matter of law.\\nSt. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 440 n.8 (5th Cir. 2000)\\n(citations omitted).\\n We first address the plaintiffs’ challenge to the district court’s grant of\\nqualified immunity, evaluating whether clearly established law prohibited the\\ndefendants’ conduct. Next, we discuss whether the district court erred in\\nabstaining from deciding the plaintiffs’ claims for declaratory judgment.\\nFinally, we analyze whether Robinson was liable in her supervisory capacity.\\n\\n\\nI. Grant of qualified immunity\\n “The doctrine of qualified immunity protects government officials from\\ncivil damages liability when their actions could reasonably have been believed\\nto be legal.” Morgan v. Swanson, 659 F.3d 359, 370–71 (5th Cir. 2011).\\nOfficials are entitled to qualified immunity “unless (1) they violated a federal\\nstatutory or constitutional right, and (2) the unlawfulness of their conduct was\\n‘clearly established at the time.’” District of Columbia v. Wesby, 138 S. Ct. 577,\\n589 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).\\n Using this framework, we analyze the plaintiffs’ arguments that clearly\\nestablished law prohibited the defendants’ execution of the subpoena\\ninstanter. The plaintiffs offer two theories for why the defendants’ conduct\\n\\n 5\\n\\n Case: 17-50518 Document: 00515018705 Page: 6 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nwas unconstitutional. First, they argue it was a warrantless search that did\\nnot satisfy the administrative exception. Second, they argue it was a\\npretextual search and thus unconstitutional.\\n\\n\\n a. Warrantless search\\n The plaintiffs argue the Board violated the Fourth Amendment when it\\ndemanded immediate compliance with its administrative subpoena. We have\\npreviously considered a challenge to a subpoena instanter executed by the\\nTexas Medical Board. See Cotropia v. Chapman, 721 F. App’x 354 (5th Cir.\\n2018). In that nonprecedential opinion, we held: “Absent consent, exigent\\ncircumstances, or the like, in order for an administrative search to be\\nconstitutional, the subject of the search must be afforded an opportunity to\\nobtain precompliance review before a neutral decisionmaker.” Id. at 358\\n(quoting City of Los Angeles v. Patel, 135 S. Ct. 2243, 2452 (2015)).\\n In that case, the physician at the center of a Board investigation pled\\nsufficient facts to overcome qualified immunity. Id. at 361. The doctor alleged\\nthat a Board member “violated the clearly established right to an opportunity\\nto obtain precompliance review of an administrative subpoena before a neutral\\ndecisionmaker” when he took documents from the physician’s office over\\nobjections from the office receptionist. Id. at 357. Relying on Supreme Court\\nprecedent, we held that it was clear at the time that “prior to compliance,\\nCotropia was entitled to an opportunity to obtain review of the administrative\\nsubpoena before a neutral decisionmaker.” Id. at 358 (citing See v. City of\\nSeattle, 387 U.S. 541, 545 (1967); Donovan v. Lone Steer, Inc., 464 U.S. 408,\\n415 (1984)). Similarly, the demand to turn over Dr. Zadeh’s medical records\\nimmediately did not provide an opportunity for precompliance review. We\\nagree, then, that a requirement of precompliance review in many, if not most,\\n 6\\n\\n Case: 17-50518 Document: 00515018705 Page: 7 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nadministrative searches had been clearly established by Supreme Court\\nprecedent prior to the search here.\\n The defendants acknowledge this law but maintain there was no\\nconstitutional violation because this search fell into an exception to the general\\nrule requiring precompliance review. We next examine that argument.\\n\\n\\n i. Closely regulated industry\\n No opportunity for precompliance review is needed for administrative\\nsearches of industries that “have such a history of government oversight that\\nno reasonable expectation of privacy” exists for individuals engaging in that\\nindustry. Marshall v. Barlow’s, Inc., 436 U.S. 307, 313 (1978). Even so,\\nwarrantless inspections in closely regulated industries must still satisfy three\\ncriteria: (1) a substantial government interest, (2) a regulatory scheme that\\nrequires warrantless searches to further the government interest, and (3) “a\\nconstitutionally adequate substitute for a warrant.” New York v. Burger, 482\\nU.S. 691, 702–03 (1987) (quoting Donovan v. Dewey, 452 U.S. 594, 603 (1981)).\\n Cotropia did not resolve whether the Board’s use of administrative\\nsubpoenas satisfied the Burger criteria because the issue was not raised until\\noral argument. Cotropia, 721 F. App’x at 360 & n.6. As a result, the panel’s\\nholding was expressly limited to concluding that the Board’s demand for\\nimmediate compliance with the subpoena did not satisfy the general\\nadministrative exception to the warrant requirement. The argument has\\ntimely been raised here, though. Thus, we must discuss whether the Burger\\nexception permitted the Board’s administrative subpoena and whether that\\nlaw was clearly established at the time of its execution.\\n To categorize industries under Burger, courts consider the history of\\nwarrantless searches in the industry, how extensive the regulatory scheme is,\\n 7\\n\\n Case: 17-50518 Document: 00515018705 Page: 8 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nwhether other states have similar schemes, and whether the industry would\\npose a threat to the public welfare if left unregulated. See Burger, 482 U.S. at\\n704; Patel, 135 S. Ct. at 2454. The defendants characterize the relevant\\nindustry in two different ways. We evaluate first whether the practice of\\nmedicine is a closely regulated industry and then whether the practice of\\nprescribing controlled substances is closely regulated.\\n Acknowledging that the medical profession is subject to close oversight,\\nthe district court emphasized the absence of a history of warrantless\\ninspections to conclude that the medical profession was not a closely regulated\\nindustry. Important to its conclusion was the confidential nature of the doctor-\\npatient relationship: “It strains credibility to suggest that doctors and their\\npatients have no reasonable expectation of privacy.” On appeal, the defendants\\nall but concede that there is not a lengthy history of warrantless searches.\\nThey instead emphasize the extensive regulatory scheme governing the\\npractice of medicine and the risk that the industry could pose to the public\\nwelfare.\\n There is no doubt that the medical profession is extensively regulated\\nand has licensure requirements. Satisfying the Burger doctrine requires more.\\nThe Supreme Court instructs “that the doctrine is essentially defined by ‘the\\npervasiveness and regularity of the federal regulation’ and the effect of such\\nregulation upon an owner’s expectation of privacy.” Burger, 482 U.S. at 701\\n(quoting Dewey, 452 U.S. at 605–06). Another key factor is “the duration of a\\nparticular regulatory scheme.” Id. (quoting Dewey, 452 U.S. at 606).\\n The Board cites several laws or regulations governing the behavior of\\ndoctors. Outside of citing Texas’s licensure requirement for physicians, the\\nregulations the Board cites do not apply to the entire medical profession.\\nInstead, they target the practice of prescribing controlled substances. As\\n 8\\n\\n Case: 17-50518 Document: 00515018705 Page: 9 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nexamples, the Board states that doctors must register with the DEA to\\nprescribe controlled substances, TEX. HEALTH & SAFETY CODE § 481.061; that\\nprescriptions of controlled substances are monitored by several law\\nenforcement agencies, id. §§ 481.067, 481.075, 481.076; and that pain\\nmanagement clinics must register as such, which allows the Board to inspect\\nthem from time to time, TEX. OCC. CODE §§ 168.101, 168.052; 37 Tex. Reg.\\n10079, 10079–80 (2012), adopted 38 Tex. Reg. 1876, 1876–77 (2013), amended\\n39 Tex. Reg. 297, 297–98 (2014) (former 22 TEX. ADMIN. CODE § 195.2); 35 Tex.\\nReg. 1924, 1925–26 (2010), adopted 35 Tex. Reg. 3281, 3281–82 (2010),\\namended 43 Tex. Reg. 768, 768–74 (2018) (former 22 TEX. ADMIN. CODE\\n§ 195.3). The Board also refers us to laws and regulations that similarly\\nregulate anesthesia. These, though, do not amount to pervasiveness and\\nregularity of regulation over the medical industry as a whole as Burger\\nrequires. Instead, only specific groups of doctors may have been put on notice\\nthat the Board may perform some inspections.\\n We also do not see in the medical profession an entrenched history of\\nwarrantless searches. Its absence is relevant, though not dispositive, to our\\nissue. Burger, 482 U.S. at 701. For example, when the Court held that the\\nliquor industry was closely regulated, it mentioned that English\\ncommissioners could inspect brewing houses on demand in the 1660s, and that\\nMassachusetts passed a similar law in 1692. Colonnade Catering Corp. v.\\nUnited States, 397 U.S. 72, 75 (1970). It then referred to a 1791 federal law\\nthat has continued in various forms, permitting federal officers to perform\\nwarrantless searches of distilleries and imposing an excise tax on distilled\\nliquor. Id. Because the focus there was “the liquor industry long subject to\\nclose supervision and inspection,” the Court concluded that the Fourth\\n\\n\\n 9\\n\\n Case: 17-50518 Document: 00515018705 Page: 10 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nAmendment did not prohibit the warrantless searches authorized by Congress.\\nId. at 77. Here, there is no such history.\\n In considering the reasonable expectation of privacy, we also consider\\nthe sensitive nature of medical records. The Ninth Circuit explained that “the\\ntheory behind the closely regulated industry exception is that persons\\nengaging in such industries, and persons present in those workplaces, have a\\ndiminished expectation of privacy.” Tucson Woman’s Clinic v. Eden, 379 F.3d\\n531, 550 (9th Cir. 2004). We agree with that court’s observation that in medical\\ncontexts, the expectation of privacy likely is heightened. Id.\\n Admittedly, federal regulations do exempt the Board from the privacy\\nrequirements of the Health Insurance Portability and Accountability Act\\n(“HIPAA”). 45 C.F.R. § 164.512. Further, the Board cites Texas laws providing\\nthat where the Board does obtain information, it is subject to confidentiality\\nrequirements. See TEX. OCC. CODE §§ 159.002; 159.003(a)(5); 164.007(c). That\\nHIPAA permits disclosure to the Board and that the regulations governing the\\nBoard continue to protect that information from disclosure does not mean that\\nthe Board is entitled to access to that information through an administrative\\nsearch without allowing an opportunity for precompliance review.\\n We conclude, then, that the medical industry as a whole is not a closely\\nregulated industry for purposes of Burger. Still, even if the medical profession\\nat large cannot be said to fall within these Burger factors, it is possible that a\\nsubset, such as those who prescribe controlled substances, would do so.\\nBecause the parties focus their analysis of whether there is a closely regulated\\nindustry on the medical profession as a whole and not on pain management\\nclinics, we assume only for purposes of our analysis today that pain\\nmanagement clinics are part of a closely regulated industry and that Dr. Zadeh\\nwas operating such a clinic even if his clinic was not certified as one. Such\\n 10\\n\\n Case: 17-50518 Document: 00515018705 Page: 11 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nassumptions are appropriate in this case because ultimately our resolution\\nturns on whether the relevant law was clearly established. At this point, we\\ncan at least say that the law was not clearly established whether pain\\nmanagement clinics are part of a closely regulated industry. The remaining\\nrelevant law, established with clarity or not, is analyzed below.\\n\\n\\n ii. Burger exception requirements\\n Even were we to accept the defendants’ argument that doctors\\nprescribing controlled substances are engaging in a closely regulated industry\\nwith less reasonable expectations of privacy, administrative searches of such\\nindustries still must satisfy the three Burger criteria. There is no meaningful\\ndispute in this case as to the first two factors, namely, that the State has a\\nsubstantial interest in regulating the prescription of controlled substances and\\nthat the inspection of a doctor’s records would aid the Government in\\nregulating the industry. We thus analyze only whether the statutory scheme\\nis a proper substitute for a search warrant. The Board relies on its authority\\nto issues subpoenas and to inspect pain management clinics. The principal\\nresponse from plaintiffs is that neither provides a constitutionally adequate\\nsubstitute for a warrant.\\n In order for a warrant substitute authorized by statute to be\\nconstitutionally adequate, “the regulatory statute must perform the two basic\\nfunctions of a warrant: it must advise the owner of the commercial premises\\nthat the search is being made pursuant to the law and has a properly defined\\nscope, and it must limit the discretion of the inspecting officers.” Burger, 482\\nU.S. at 703. The relevant statute provides: “The board may issue a subpoena\\nor a subpoena duces tecum to compel the attendance of a witness and the\\nproduction of books, records, and documents.” TEX. OCC. CODE. § 153.007(a).\\n 11\\n\\n Case: 17-50518 Document: 00515018705 Page: 12 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nThe Board argues that the statute, when considered with the following\\nregulation, limits the discretion of the officials. The regulation provides that\\nafter a “request by the board or board representatives, a licensee shall furnish\\nto the board copies of medical records or the original records within a\\nreasonable time period, as prescribed at the time of the request.” 22 TEX.\\nADMIN. CODE § 179.4(a). The regulation defines “reasonable time” as “fourteen\\ncalendar days or a shorter time if required by the urgency of the situation or\\nthe possibility that the records may be lost, damaged, or destroyed.” Id.\\n The district court held that a search using the Board’s subpoena\\nauthority did not satisfy the third factor of the Burger test as it was “purely\\ndiscretionary,” allowing the Board “to choose which doctors to subpoena and to\\ndo so at a frequency it determines.” To evaluate that holding, we consider the\\nlimits that do exist: only licensees are subject to the subpoena; only medical\\nrecords must be produced; and it is the Board or its representatives who will\\nbe asking for the records. As the district court stated, though, there is no\\nidentifiable limit on whose records can properly be subpoenaed.\\n As to inspections of pain management clinics, the Board argues that\\nsome limits to its authority are set by the statute permitting it to inspect pain\\nmanagement clinics. Specifically, the statute allows it to examine “the\\ndocuments of a physician practicing at the clinic, as necessary to ensure\\ncompliance with this chapter.” TEX. OCC. CODE. § 168.052(a). Providing more\\nspecific guidance, the regulation in effect at the time provided:\\n The board may conduct inspections to enforce these rules, including\\n inspections of a pain management clinic and of documents of a\\n physician’s practice. The board may contract with another state agency\\n or qualified person to conduct these inspections.\\n\\n\\n\\n\\n 12\\n\\n Case: 17-50518 Document: 00515018705 Page: 13 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\n35 Tex. Reg. 1925, 1925–26 (2010), adopted 35 Tex. Reg. 3281, 3281–82 (2010),\\namended 43 Tex. Reg. 768, 768–74 (2018) (former 22 TEX. ADMIN. CODE\\n§ 195.3).\\n The district court found this inspection authority, like the subpoena\\nauthority, to be “purely discretionary.” The governing criteria for an inspection\\nis that the target be a pain management clinic, that the Board performs the\\ninspection, and that the purpose for the search be to determine compliance\\nwith pain management rules. We agree with the district court, though, that\\nthese requirements suffered from the same fatal Burger flaw as the subpoena\\nauthority: they did not limit how the clinics inspected are chosen.\\n In summary, there are insufficient limits on the discretion of the Board\\nto satisfy the Burger requirements, whether considering the medical profession\\nin general or as to pain management clinics. What is left is the question of\\nwhether the law on these points was clearly established and, regardless,\\nwhether the search was invalid as pretextual.\\n\\n\\n iii. Clearly established law for qualified immunity\\n To summarize, we have concluded there was a violation of Dr. Zadeh’s\\nconstitutional rights. That is true even with our twin assumptions that pain\\nmanagement clinics are part of a closely regulated industry and that Dr. Zadeh\\noperated a pain management clinic. Nonetheless, the defendants are entitled\\nto qualified immunity unless the constitutional requirements they violated\\nwere clearly established at the time of their actions. Reichle, 566 U.S. at 664.\\nWe hold that it was clearly established at the time of this search that the\\nmedical profession as a whole is not a closely regulated industry, meaning that\\ngovernmental agents violate the Constitution when they search clinics that are\\nnot pain management clinics without providing an opportunity for\\n 13\\n\\n Case: 17-50518 Document: 00515018705 Page: 14 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nprecompliance review. We also hold, even assuming that pain management\\nclinics are part of a closely regulated industry, that on-demand searches of\\nthose clinics violate the constitution when the statutory scheme authorizing\\nthe search fails to provide sufficient constraints on the discretion of the\\ninspecting officers. We need to analyze, though, whether that last statement\\nof law was clearly established when this search occurred.\\n Our analysis of the clarity of relevant law is objective, meaning it does\\nnot focus on the specific defendants’ knowledge. “The touchstone of this\\ninquiry is whether a reasonable person would have believed that his conduct\\nconformed to the constitutional standard in light of the information available\\nto him and the clearly established law.” Goodson v. City of Corpus Christi, 202\\nF.3d 730, 736 (5th Cir. 2000). “[E]ven law enforcement officials who\\n‘reasonably but mistakenly [commit a constitutional violation]’ are entitled to\\nimmunity.” Glenn v. City of Tyler, 242 F.3d 307, 312–13 (5th Cir. 2001)\\n(quoting Goodson, 202 F.3d at 736). For the law to be clearly established, there\\nmust be a close congruence of the facts in the precedent and those in the case\\nbefore us. Wesby, 138 S. Ct. at 589–90. “The precedent must be clear enough\\nthat every reasonable official would interpret it to establish the particular rule\\nthe plaintiffs seek to apply.” Id. at 590.\\n Defendants rely on one of our precedents that reviewed an\\nadministrative search of a dentist’s office by agents of the Texas State Board\\nof Dental Examiners, accompanied by Department of Public Safety officials.\\nBeck v. Tex. State Bd. of Dental Exam’rs, 204 F.3d 629, 632 (5th Cir. 2000).\\nDentist Beck was a target because of complaints filed against him for\\nprescribing controlled substances. Id. We concluded that the search did not\\nviolate the plaintiff’s clearly established rights. Id. at 638–39. We applied the\\nBurger exception and determined there was a significant state interest in\\n 14\\n\\n Case: 17-50518 Document: 00515018705 Page: 15 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nregulating dentists’ use of controlled substances; the search was conducted\\npursuant to two regulatory schemes; and there was an adequate substitute for\\na warrant where the statute permitted the official to conduct inspections\\nduring “reasonable times” after “stating his purpose” and presenting his\\ncredentials to the owner. Id. at 638–39. In light of Beck, the Board argues that\\nreasonable investigators could have believed the Burger exception permitted\\nthe execution of the subpoena as they too were investigating prescriptions of\\ncontrolled substances within the medical industry.\\n The plaintiffs insist that Beck is “patently distinguishable” for the same\\nreason argued in the separate opinion here. The clarity of any possible\\ndistinction, though, must be viewed through the lens that the law, including a\\ndistinction, must be “sufficiently clear that every reasonable official would\\nunderstand that what he is doing is unlawful” at that time. Wesby, 138 S. Ct.\\nat 589 (quotation marks omitted). That means “existing law must have placed\\nthe constitutionality of the officer’s conduct ‘beyond debate.” Id. Perhaps most\\nrelevant, the “legal principle [must] clearly prohibit the officer’s conduct in the\\nparticular circumstances before him. The rule’s contours must be so well\\ndefined that it is ‘clear to a reasonable officer that his conduct was unlawful in\\nthe situation he confronted.’” Id. at 590 (emphasis added).\\n The claimed sufficient distinction here is that the regulations and\\nstatutes under which the investigators in Beck acted explicitly permitted\\ninspections without prior notice. See Beck, 204 F.3d at 639. The Beck court\\ndiscussed that point at the end of the opinion, as it addressed several questions\\nregarding whether what occurred was a valid administrative search of a closely\\nregulated industry. Id. The final subject the court discussed was that one of\\nthe statutes under which the inspection was conducted did not require that\\nprior notice be given. Id. (quoting Section 5.01(c) of the Texas Controlled\\n 15\\n\\n Case: 17-50518 Document: 00515018705 Page: 16 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nSubstances Act.) That is no small distinction, and we conclude today that\\nabsent similar statutory or perhaps regulatory authority that dispenses with\\nprior notice, a search such as occurred here cannot be conducted without prior\\nnotice. The issue for us, though, is whether that law was clearly established\\nat the time of the search we are reviewing today.\\n As we already stated, the right is not clearly established unless it is\\nbeyond debate using an objective test. We have discussed the intricacies of\\nNew York v. Burger, which permit warrantless searches when they satisfy a\\nthree-factor test. Our Beck decision held that the search there was of a closely\\nregulated industry, and therefore went through the three Burger factors. The\\ndiscussion of the specific statutory authorization for no-notice inspections was\\nto show that the third Burger factor was satisfied, which is that an adequate\\nsubstitute for a warrant existed. We did not say in Beck that the only sufficient\\nsubstitute under Burger was a statute authorizing no-notice searches. We did\\nhold that “under these circumstances, Beck does not show a violation of a\\nclearly established constitutional right.” Beck, 204 F.3d at 639.\\n Instead of clearly establishing the principle that prior notice of a\\nregulatory search must be given unless the authorizing statute explicitly\\nannounces it is unnecessary, Beck applied the general Burger principle to the\\nfacts of that case that a warrant substitute authorized by a “regulatory statute\\nmust perform the two basic functions of a warrant: it must advise the owner of\\nthe commercial premises that the search is being made pursuant to the law\\nand has a properly defined scope, and it must limit the discretion of the\\ninspecting officers.” Burger, 482 U.S. at 703. In the Beck situation, that factor\\nwas satisfied with the statutory language already discussed. We cannot see,\\nthough, that every reasonable official prior to conducting a search under the\\ncircumstances of this case would know this Burger factor was not satisfied. We\\n 16\\n\\n Case: 17-50518 Document: 00515018705 Page: 17 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nthink some, even many, reasonable officers would believe under the third\\nBurger factor that the owner of the premises was charged with knowledge that\\na statute authorized the search, and the officers would reasonably believe the\\nscope of the search and the discretion of the officials was validly limited. We\\nhave held that the statute fails this standard, but we do not hold that all\\nreasonable officers would have known that, until now.\\n Therefore, although Beck does not control the constitutionality of the\\nBoard’s actions in this case, it does weigh in favor of the defendants’ receiving\\nqualified immunity. We find more guidance from cases where a statute did not\\nclearly limit the official’s discretion in selecting who would be subject to an\\nadministrative search. In one, we held that the statute provided a\\nconstitutionally adequate substitute for a warrant where the statute provided:\\n The licensing agency shall make or cause to be made inspections\\n relative to compliance with the laws and regulations governing the\\n licensure of child care facilities. Such inspections shall be made at\\n least once a year but additional inspections may be made as often\\n as deemed necessary by the licensing agency.\\n\\nSee Ellis v. Miss. Dep’t of Health, 344 F. App’x 43 (5th Cir. 2009) (citing MISS.\\nCODE. ANN. § 43-20-15). Though that opinion is not precedential, we agree\\nwith its reasoning.\\n We also upheld an administrative search where, despite limits on the\\nconduct of an officer after a traffic stop, there were not clear limits on an\\nofficer’s discretion as to whom to stop. See United States v. Fort, 248 F.3d 475,\\n482 (5th Cir. 2001). Because we have not so far required there to be a clear\\nlimit on determining whom officials select for an administrative search, the\\ndefendants reasonably could have believed that the administrative scheme\\nhere provided a constitutionally adequate substitute for a warrant.\\n\\n\\n 17\\n\\n Case: 17-50518 Document: 00515018705 Page: 18 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\n Finally, the plaintiffs argue that even if qualified immunity might apply\\nto defendants who conducted a proper search, the defendants did not follow the\\nstatutory scheme. Therefore, they assert, caselaw in which the legal\\nrequirements for the search were followed is inapplicable. The claims of\\noverstepping authority, though, are minor. First, while the medical assistant\\nwas waiting for Dr. Zadeh to appear, there is evidence one of the investigators\\napproached the assistant at her desk, then followed her into two exam rooms.\\nWhile in one of the rooms, the investigator asked if controlled substances were\\nkept in the room. Second, there is evidence this same investigator also\\napproached the assistant while the latter was in a storage room and asked if\\nthe investigators could use the medical office’s copy machine. The district court\\nsaid there was no evidence the investigator ever looked at any files or went\\nsomewhere in the medical office without the assistant. Finally, as soon as the\\ninvestigators were asked to leave the office, they did so. We agree with the\\ndistrict court that there is “no support in the record” to sustain the allegation\\nthe investigators did a “thorough search and inspection.” The factual basis for\\ndeviations from search protocols is insubstantial.\\n In conclusion, the unlawfulness of the defendants’ conduct was not\\nclearly established at the time of the search.\\n\\n\\n b. Pretextual searches\\n The plaintiffs also argue that the search was a pretext for uncovering\\nevidence of criminal wrongdoing, not a valid administrative search. According\\nto the plaintiffs, the DEA brought Dr. Zadeh’s possible misdeeds before the\\nMedical Board. A DEA agent then was present during the search. To finish\\nthe story, though, the Medical Board proceeded against Dr. Zadeh. Before\\nthere was a full hearing on the merits, the Board entered an agreed order. In\\n 18\\n\\n Case: 17-50518 Document: 00515018705 Page: 19 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nthe order, the panel found that Dr. Zadeh was operating a pain management\\nclinic without registering it. There is nothing in this record indicating whether\\nthe DEA’s investigation resulted in a criminal prosecution or any other action.\\n “Even under a valid inspection regime, the administrative search cannot\\nbe pretextual.” Club Retro, LLC v. Hilton, 568 F.3d 181, 197 (5th Cir. 2009).\\nIt is incorrect, though, to use the label “pretext” simply because of an overlap\\nbetween an administrative search and a criminal search. The Burger Court\\nremarked that “a State can address a major social problem both by way of an\\nadministrative scheme and through penal sanctions.” Burger, 482 U.S. at 712.\\nTo determine whether the search there was constitutional, the Court looked to\\nwhether the administrative scheme really “authorize[d] searches undertaken\\nsolely to uncover evidence of criminality.” Id.\\n Similarly, the Supreme Court dismissed a defendant’s argument “that\\nbecause the Customs officers were accompanied by a Louisiana State\\nPoliceman, and were following an informant’s tip that a vessel in the ship\\nchannel was thought to be carrying marijuana,” the Government could not rely\\non the administrative search exception. United States v. Villamonte-Marquez,\\n462 U.S. 579, 584 n.3 (1983).\\n We have applied these principles to a search of an automobile salvage\\nyard. United States v. Thomas, 973 F.2d 1152, 1155–56 (5th Cir. 1992). There,\\nan investigator with the Texas Department of Public Safety tracked a vehicle\\nto an auto salvage business and there conducted an inventory inspection under\\nTexas statute. Id. at 1155. Even though the inventory inspection was\\nprompted by suspicion of criminal conduct, the investigator still was entitled\\nto use information gained during the inspection to obtain a search warrant for\\nthe salvage-yard owner’s residence. Id. “Administrative searches conducted\\n\\n\\n 19\\n\\n Case: 17-50518 Document: 00515018705 Page: 20 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\npursuant to valid statutory schemes do not violate the Constitution simply\\nbecause of the existence of a specific suspicion of wrongdoing.” Id. at 1155–56.\\n Beck has similar analysis. As here, the administrative search in Beck\\nwas initiated after a tip. Dental Board member Michael Pitcock “stated in his\\ndeposition that information was forwarded to him alleging that Beck had\\nordered unusually high volumes of controlled substances.” Beck, 204 F.3d at\\n632. The Dental Board suspected Beck of violating criminal statutes, and a\\nlaw enforcement officer accompanied the board agent in its inspection of the\\ndental office. Id. The dentist argued that the search was conducted to uncover\\ncriminal wrongdoing and thus was not conducted pursuant to a valid\\nadministrative scheme. Id. at 638. We held that the suspicions of criminal\\nwrongdoing “did not render the administrative search unreasonable,” citing\\nVillamonte-Marquez and Thomas. Id. at 639.\\n As to Dr. Zadeh, the DEA was closely involved with the Board’s\\ninvestigation. Under Burger, though, we look to whether the search that\\noccurred was under a scheme serving an administrative purpose. The Board’s\\npurpose is demonstrated by the subsequent administrative action against\\nDr. Zadeh. The search was not performed “solely to uncover evidence of\\ncriminality.” See Burger, 482 U.S. at 698. Thus, the search was not pretextual.\\n\\n\\nII. Declaratory Judgment\\n Dr. Zadeh argues that the district court erred in abstaining from\\ndeciding the declaratory judgment claims following Younger. Dr. Zadeh asked\\nthe district court to make declaratory judgments on several laws implicating\\nthe Board. The district court did not resolve any.\\n “In Younger, the Supreme Court ‘instructed federal courts that the\\nprinciples of equity, comity, and federalism in certain circumstances counsel\\n 20\\n\\n Case: 17-50518 Document: 00515018705 Page: 21 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nabstention in deference to ongoing state proceedings.’” Wightman v. Tex.\\nSupreme Court, 84 F.3d 188, 189 (5th Cir. 1996) (citations omitted). Following\\nSupreme Court precedent, this court follows “a three-part test describing the\\ncircumstances under which abstention [is] advised: (1) the dispute should\\ninvolve an ‘ongoing state judicial proceeding;’ (2) the state must have an\\nimportant interest in regulating the subject matter of the claim; and (3) there\\nshould be an ‘adequate opportunity in the state proceedings to raise\\nconstitutional challenges.’” Id. (citation omitted).\\n The district court applied the reasoning of one of our unpublished cases,\\nPerez v. Tex. Med. Bd., 556 F. App’x 341 (5th Cir. 2014). There, we held that\\nYounger barred the plaintiffs’ suit seeking to enjoin the Board from pursuing\\nany causes of action against them. Id. at 342–43. We agree with that panel’s\\ndetermination that Texas had a strong interest in regulating the practice of\\nmedicine, and the Perez plaintiffs could raise their constitutional challenges in\\nthe state court because the law provided for judicial review of the\\nadministrative decision. Id. at 342. Following Perez, the district court\\nconcluded that Dr. Zadeh had an ongoing administrative action pending; the\\nstate had a significant interest in regulating medicine in Texas; and Dr. Zadeh\\ncould appeal his administrative action in state court and raise constitutional\\nchallenges there. Accordingly, the district court abstained from adjudicating\\nthe requests for declaratory relief.\\n Dr. Zadeh claims Younger is inapplicable because the Board argued that\\nthe lawsuit did not implicate the underlying investigation. Dr. Zadeh also\\nargues that there will be no adequate opportunity in the state proceedings to\\nraise any constitutional challenges. He claims that “[d]octors do not have the\\npower to file an appeal concerning the findings of fact and conclusions of law\\ncontained in a final decision (but the TMB does).”\\n 21\\n\\n Case: 17-50518 Document: 00515018705 Page: 22 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\n Dr. Zadeh was subject to an ongoing state administrative proceeding,\\nand that qualifies as a judicial proceeding for this analysis. See Middlesex\\nCnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982). As\\nwe stated in Perez, Texas has a strong interest in regulating the practice of\\nmedicine. Finally, despite plaintiffs’ contrary view, Texas law does permit\\njudicial review by either party of an administrative decision. 1 “A person who\\nhas exhausted all administrative remedies available within a state agency and\\nwho is aggrieved by a final decision in a contested case is entitled to judicial\\nreview under this chapter.” TEX. GOV’T CODE. § 2001.171.\\n The district court did not abuse its discretion in abstaining from deciding\\nthe declaratory judgment claims.\\n\\n\\nIII. Director Robinson’s potential supervisory capacity liability\\n The plaintiffs argue that Robinson should be held liable in her\\nsupervisory capacity. “A supervisory official may be held liable under § 1983\\nonly if (1) he affirmatively participates in the acts that cause the constitutional\\ndeprivation, or (2) he implements unconstitutional policies that causally result\\nin the constitutional injury.” Gates v. Tex. Dep’t of Protective and Regulatory\\nServs., 537 F.3d 404, 435 (5th Cir. 2008). A failure to train claim requires that\\nthe plaintiff show (1) the supervisor’s failure to train; (2) the failure to train\\nresulted in the violation of the plaintiff’s rights; and (3) the failure to train\\nshows deliberate indifference. Id. For deliberate indifference, “there must be\\n‘actual or constructive notice’ ‘that a particular omission in their training\\n\\n\\n\\n The plaintiffs note that the administrative law judge in the SOAH proceeding\\n 1\\n\\ndeclined to address the constitutional questions. Even so, all the law requires is that the\\nissue have been preserved for the appeal to the state court. See Ohio Civil Rights Comm’n v.\\nDayton Christian Schs., Inc., 477 U.S. 619, 629 (1986).\\n 22\\n\\n Case: 17-50518 Document: 00515018705 Page: 23 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nprogram causes . . . employees to violate citizens’ constitutional rights’ and the\\nactor nevertheless ‘choose[s] to retain that program.’” Porter v. Epps, 659 F.3d\\n440, 447 (5th Cir. 2011) (citation omitted).\\n The plaintiffs argue that Robinson improperly delegated her subpoena\\nauthority to subordinates whose training she knew nothing about. Therefore,\\nthe subpoena did not comply with Texas law because the Executive Director of\\nthe Board is not permitted to delegate her subpoena authority. The district\\ncourt did not determine whether the delegation was permissible. “In light of\\nthe express regulatory authority for the delegation, the precedent set by her\\npredecessors, and the sheer volume of subpoenas issued every year by the\\nTMB,” Robinson’s actions did not amount to deliberate indifference.\\n In Texas administrative law, a rule of statutory construction presumes\\nthat where a statute grants specific authority to a designated public officer,\\nthe legislature intended only that officer to have that authority. Lipsey v. Tex.\\nDep’t of Health, 727 S.W.2d 61, 64 (Tex. App.—Austin 1987, writ ref’d n.r.e.).\\nStill, Lipsey recognized “the authority to ‘subdelegate’ or transfer the assigned\\nfunction may be implied and the presumption defeated owing to the nature of\\nthe assigned function, the makeup of the agency involved, the duties assigned\\nto it, the statutory framework, and perhaps other matters.” Id. at 65.\\n In this case, a statute permits the Board to subpoena records. TEX. OCC.\\nCODE. § 153.007. Section 153.007(b) permits the Board to delegate subpoena\\nauthority “to the executive director or the secretary-treasurer of the board.”\\nBy administrative rule, the executive director may “delegate any responsibility\\nor authority to an employee of the board.” 22 TEX. ADMIN. CODE § 161.7(c).\\n In resolving this issue, we start with the fact the rule articulated in\\nLipsey is only a presumption. Even assuming that the plaintiffs could show\\nthat Robinson failed to train her subordinates and that failure resulted in a\\n 23\\n\\n Case: 17-50518 Document: 00515018705 Page: 24 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nconstitutional violation, Robinson was not deliberately indifferent in\\ndelegating her subpoena authority in light of the fact she was acting pursuant\\nto the regulations in the same way as her predecessors and the numerous\\nsubpoenas issued each year. To the extent the plaintiffs seek to impose Section\\n1983 liability on Kirby and Pease through the subdelegation argument, that\\nlaw also was not clearly established.\\n AFFIRMED.\\n\\n\\n\\n\\n 24\\n\\n Case: 17-50518 Document: 00515018705 Page: 25 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4413311/\", \"author_raw\": \"LESLIE H. SOUTHWICK, Circuit Judge\"}, {\"author\": \"DON R. WILLETT, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"DON R. WILLETT, Circuit Judge, concurring in part, dissenting in part:\\n State investigators, without notice and without a warrant, entered a\\ndoctor’s office and demanded to rifle through the medical records of 16 patients.\\nOr else. The doctor was not in, and the investigators, after being told that the\\ndoctor contested the subpoena, warned his assistant that if she didn’t produce\\nthe patient files at once, there would be grave repercussions. According to her,\\nthe investigators threatened to suspend the doctor’s medical license. They\\ndemanded compliance—immediately.\\n The Fourth Amendment forbids such roughshod rummaging. The\\nFramers cared deeply about We the People’s right “to be secure in [our]\\npersons, houses, papers, and effects against unreasonable searches and\\nseizures.” 1 The Fourth Amendment was the Founding generation’s “response\\nto the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era,\\nwhich allowed British officers to rummage through homes in an unrestrained\\nsearch for evidence of criminal activity.” 2 In fact, outrage over unchecked\\nsearches was “one of the driving forces behind the Revolution itself.” 3\\n The majority opinion correctly diagnoses Dr. Zadeh’s injury but refuses\\nto prescribe a remedy: His rights were violated, but since the law wasn’t clearly\\nestablished, Dr. Zadeh loses. I originally agreed with this violation-without-\\nvindication result. 4\\n But deeper study has convinced me that the officials’ constitutional\\nmisstep violated clearly established law, not a previously unknown right. And\\n\\n\\n\\n\\n 1 U.S. CONST. amend. IV.\\n 2 Riley v. California, 134 S. Ct. 2473, 2494 (2014).\\n 3 Id.\\n 4 Zadeh v. Robinson, 902 F.3d 483, 498 (5th Cir. 2018) (Willett, J., concurring\\n\\ndubitante).\\n 25\\n\\n Case: 17-50518 Document: 00515018705 Page: 26 Date Filed: 07/02/2019\\n\\n\\n No. 17-50518\\n\\nit has reaffirmed my broader conviction that the judge-made immunity regime\\nought not be immune from thoughtful reappraisal.\\n I\\n To rebut the officials’ qualified-immunity defense and get to trial, Dr.\\nZadeh must plead facts showing that the alleged misconduct violated clearly\\nestablished law. 5 He has done so.\\n A\\n The Supreme Court held 40-plus years ago in See that the Fourth\\nAmendment requires precompliance review. 6 An administrative subpoena\\n“may not be made and enforced by the inspector in the field . . . .” 7 Almost 20\\nyears later, the Court in Lone Steer elaborated that although an agency “may\\nissue an administrative subpoena without a warrant,” it must give the\\nsubpoenaed person an opportunity “to question the reasonableness of the\\nsubpoena . . . by raising objections in an action in district court” before suffering\\nany penalties for noncompliance. 8 The Court reaffirmed this settled\\nprecompliance-review requirement again just four years ago in Patel. 9\\n Here, Texas officials gave Dr. Zadeh no time to question the subpoena’s\\nreasonableness. That’s a violation. Plain and simple.\\n B\\n But there are exceptions to most every rule. Under the Supreme Court’s\\n1981 decision in Burger, officials don’t have to give people time to comply if:\\n • the business is part of a closely regulated industry;\\n\\n\\n 5 Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).\\n 6 See v. City of Seattle, 387 U.S. 541 (1967).\\n 7 Id. at 544–45.\\n 8 Donovan v. Lone Steer, Inc., 464 U.S. 408, 415 (1984).\\n 9 City of Los Angeles v. Patel, 135 S. Ct. 2443, 2452 (2015) (“[T]he subject of the search\\n\\nmust be afforded an opportunity to obtain precompliance review before a neutral\\ndecisionmaker.”).\\n 26\\n\\n Case: 17-50518 Document: 00515018705 Page: 27 Date Filed: 07/02/2019\\n\\n\\n No. 17-50518\\n\\n • there’s a substantial government interest;\\n • warrantless searches are necessary; and\\n • there’s a “constitutionally adequate substitute for a\\n warrant.” 10\\n\\nThis search whiffs two requirements. So I agree with the majority opinion: The\\nBurger exception doesn’t apply.\\n 1\\n Medical practices—including pain-management clinics—aren’t “closely\\nregulated” industries. In both Burger 11 and Patel, 12 the Supreme Court\\nconsidered the history of warrantless searches, then-current regulations, and\\nthe public interest. Take Patel. The Court held that hotels aren’t a closely\\nregulated industry—no history of regular, warrantless searches. 13 Public-\\naccommodation laws require hotels to serve all paying customers. That just\\ndoesn’t equate to state officials knocking down doors. 14\\n Likewise, state officials haven’t historically rummaged through pain-\\nmanagement clinics without warrants. If anything, it’s the opposite. The law\\nhas consistently protected doctor–patient confidentiality. In 2011, the\\nSupreme Court in Sorrell noted that “for many reasons, physicians have an\\ninterest in keeping their prescription decisions confidential.” 15 Ten years\\nearlier, the Court in Ferguson recognized medical patients’ “reasonable\\nexpectation of privacy”—that no one will share their records without\\npermission. 16\\n\\n\\n\\n\\n 10 New York v. Burger, 482 U.S. 691, 702–03 (1987).\\n 11 See id. at 704.\\n 12 See Patel, 135 S. Ct. at 2454.\\n 13 Id. at 2455.\\n 14 Id.\\n 15 Sorrell v. IMS Health Inc., 564 U.S. 552, 572 (2011).\\n 16 Ferguson v. City of Charleston, 532 U.S. 67, 78 (2001).\\n\\n 27\\n\\n Case: 17-50518 Document: 00515018705 Page: 28 Date Filed: 07/02/2019\\n\\n\\n No. 17-50518\\n\\n It’s not just our Nation’s highest court. Lower courts recognize this too.\\nThe district court here emphasized that “warrantless inspections of doctors’\\noffices” don’t often happen. 17 In 2017, another Texas federal district court\\nstressed a stark distinction between medicine and “closely regulated”\\nindustries. The court noted that the government has long treated liquor and\\nguns very differently than doctors. 18\\n True, we held in Schiffman that pharmaceuticals are a “pervasively”\\nregulated industry. 19 But that was in 1978. And the Supreme Court has since\\nclarified things. As the Court said in Patel, the closely-regulated-industry\\nexception is very much that—“the exception.” 20 So Schiffman doesn’t control.\\n In sum, the law strongly protects privacy in medicine. Pain management\\nis a medical field. So pain-management clinics aren’t closely regulated.\\n Unfortunately, the majority opinion assumes without deciding that pain-\\nmanagement clinics are closely regulated. In doing so, the majority blurs\\nconstitutional contours. 21 Our legal system serves the public best when it\\nprovides clear rules, consistently applied—bright lines and sharp corners. We\\nowe clarity to the courts below us, the litigants before us, and the cases beyond\\nus. Thankfully, our court has at least established that medicine generally isn’t\\nclosely regulated.\\n 2\\n Setting aside the “closely regulated” issue, the Burger exception still\\ndoesn’t apply. The laws here aren’t a constitutionally adequate substitute for\\n\\n\\n 17 Zadeh v. Robinson, No. 1:15-CV-598, Dkt. No. 40, at *10 (W.D. Tex., Apr. 26, 2016),\\naff’d, 902 F.3d 483 (5th Cir. 2018).\\n 18 Barry v. Freshourt, No. H-17-1403, 2017 WL 4682176, at *6–7 (Rosenthal, J.) (S.D.\\n\\nTex. Oct. 18, 2017), rev’d on other grounds, 905 F.3d 912 (5th Cir. 2018).\\n 19 United States v. Schiffman, 572 F.2d 1137, 1142 (5th Cir. 1978).\\n 20 135 S. Ct. at 2455.\\n 21 See discussion infra Section III.\\n\\n 28\\n\\n Case: 17-50518 Document: 00515018705 Page: 29 Date Filed: 07/02/2019\\n\\n\\n No. 17-50518\\n\\na warrant. In Burger, the Court explained that a statute has to notify the public\\nthat the government can search on-demand. And it must limit officer\\ndiscretion. 22 These statutes neither notify nor limit. 23\\n Our 2000 decision in Beck sheds light on what counts for notice. 24 There,\\nthe Controlled Substances Act explicitly authorized officers to search dental\\noffices “upon stating [their] purpose[s]” and showing their credentials. 25 That\\nwas clear statutory notice. And so we upheld an on-demand search. In other\\nwords, there had to be notice that no notice is necessary. 26\\n Consider our 2001 opinion in Fort too. 27 There, we stamped our approval\\non a statute that allowed officers to inspect vehicles “after stating the purpose\\nof the inspection.” 28 The law put Texas drivers on notice that their cars could\\nbe searched. Eight years later in Club Retro, we again enforced the notice\\nrequirement. 29 That time, a SWAT team had raided a nightclub—replete with\\n“physical assault, threats at gunpoint, and prolonged detention.” 30 But the\\n\\n\\n\\n 22 Burger, 482 U.S. at 703 (“[Statutes must] perform the two basic functions of a\\nwarrant: it must advise . . . that the search is being made pursuant to the law and has a\\nproperly defined scope, and it must limit the discretion of inspecting officers.”).\\n 23 TEX. OCC. CODE § 153.007 (“[T]he board may issue a subpoena or a subpoena duces\\n\\ntecum to compel the attendance of a witness and the production of books, records, and\\ndocuments.”); TEX. OCC. CODE § 168.052 (allowing the Board to examine “the documents of a\\nphysician practicing at the clinic, as necessary to ensure compliance with this chapter”); 22\\nTEX. ADMIN. CODE § 179.4 (“Upon the request by the board or board representatives, a\\nlicensee shall furnish to the board copies of medical records . . . within a reasonable time\\nperiod . . . .”); 22 TEX. ADMIN. CODE § 195.3 (“The board may inspect a pain management\\nclinic certified under this chapter, including the documents of a physician practicing at the\\nclinic, to determine if the clinic is being operated in compliance with applicable laws and\\nrules.”).\\n 24 Beck v. Tex. St. Bd. of Dental Exam’rs, 204 F.3d 629, 639 (5th Cir. 2000).\\n 25 Id. at 639.\\n 26 Id. (“Thus, [the statute] did not require that prior notice be given.”).\\n 27 United States v. Fort, 248 F.3d 475, 482 (5th Cir. 2001).\\n 28 Id. (citing TEX. TRANSP. CODE § 644.104(b)).\\n 29 Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 200 (5th Cir. 2009).\\n 30 Id.\\n\\n 29\\n\\n Case: 17-50518 Document: 00515018705 Page: 30 Date Filed: 07/02/2019\\n\\n\\n No. 17-50518\\n\\nsupposed authorizing statute notified owners only of periodic fire-safety and\\nalcohol compliance checks. 31 So we held that the search failed to meet the\\nnotice requirement. 32\\n Here, the statutes don’t notify business owners of on-demand searches.\\nThese statutes allow “a reasonable time” to produce records. 33 And they define\\n“reasonable time” as “fourteen calendar days”; less only if there’s an emergency\\nor a risk “that the records may be lost, damaged, or destroyed.” 34 That’s not\\nnotice of routine, on-the-spot searches.\\n Lastly, the statutes don’t limit officer discretion. The only limits: who\\ncan subpoena things (the Board); 35 who the Board can subpoena (licensees); 36\\nand what the Board can demand (medical records). 37 But that’s it. Otherwise,\\nthere’s total discretion.\\n Thus, the Burger exception doesn’t apply. And so all that’s left to decide\\nis if the violation was clearly established.\\n C\\n It was. Just last year in Wesby, the Supreme Court explained that\\n“clearly established” means “settled law.” 38 “[C]ontrolling authority” must\\n\\n\\n\\n 31 Id.\\n 32 Id.\\n 33 TEX. ADMIN. CODE § 179.4(a).\\n 34 Id.\\n 35 Id. (“Upon the request by the board or board representatives, a licensee shall furnish\\n\\nto the board copies of medical records . . . within a reasonable time period . . . .” (emphasis\\nadded)).\\n 36 Id. (“Upon the request by the board or board representatives, a licensee shall furnish\\n\\nto the board copies of medical records . . . within a reasonable time period . . . .” (emphasis\\nadded)).\\n 37 Id. (“Upon the request by the board or board representatives, a licensee shall furnish\\n\\nto the board copies of medical records . . . within a reasonable time period . . . .” (emphasis\\nadded)).\\n 38 Wesby, 138 S. Ct. at 589 (2018) (quoting Hunter v. Bryant, 502 U.S. 224, 228 (1991)\\n\\n(per curiam)).\\n 30\\n\\n Case: 17-50518 Document: 00515018705 Page: 31 Date Filed: 07/02/2019\\n\\n\\n No. 17-50518\\n\\nexplicitly adopt the principle; or else there must be “a robust consensus of cases\\nof persuasive authority.” 39 Mere implication from precedent doesn’t suffice. 40\\n What’s more, the Court in Wesby reiterated that the legal principle must\\nbe specific—not general. The rule must “prohibit the officer’s conduct in the\\nparticular circumstances before him.” 41 The Court doesn’t require “a case\\ndirectly on point.” 42 But it does require a case “where an officer acting under\\nsimilar circumstances . . . violated the Fourth Amendment.” 43\\n The Supreme Court in See, 44 Lone Steer, 45 and Patel 46 made clear the\\nneed for precompliance review of administrative subpoenas. That’s controlling\\nlaw.\\n Summing up: The Board violated Dr. Zadeh’s Fourth Amendment rights.\\nNo exception applies. And the law was clearly established. The state officials\\nare thus not immune. On this basis alone, Dr. Zadeh deserves his day in court.\\n II\\n Respectfully, I think that the majority opinion is wrong for two reasons.\\nFirst, this court shouldn’t determine whether exceptions to violations are\\nclearly established. Second, even if we should, Dr. Zadeh should win anyway.\\n A\\n The majority concedes that the statutes here don’t limit the discretion of\\nthe inspecting officers as Burger requires. The court also acknowledges that\\n\\n\\n\\n\\n 39 Id. at 590 (cleaned up) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741–42 (2011)).\\n 40 Id.\\n 41 Id.\\n 42 Id. (quoting al-Kidd, 563 U.S. at 741).\\n 43 Id. (quoting White v. Pauley, 137 S. Ct. 548, 552 (2017) (per curiam)). But cf.\\n\\ndiscussion infra Section III.\\n 44 387 U.S. at 544–45.\\n 45 464 U.S. at 415.\\n 46 135 S. Ct. at 2452.\\n\\n 31\\n\\n Case: 17-50518 Document: 00515018705 Page: 32 Date Filed: 07/02/2019\\n\\n\\n No. 17-50518\\n\\nstatutes must provide notice. Yet the court holds that these requirements\\nweren’t—themselves—clearly established.\\n I understand the impulse. After all, qualified immunity is supposed to\\nprotect “all but the plainly incompetent or those who knowingly violate the\\nlaw”—that’s what the Supreme Court remarked in Wesby. 47 So if reasonably\\ncompetent officers wouldn’t necessarily know that they’re violating the law,\\nthey shouldn’t be liable. For example, the majority says that since we haven’t\\nyet enforced the limited-discretion requirement, reasonable officials could’ve\\nthought that the subpoena satisfied Burger. Thus, they wouldn’t necessarily\\nrealize they’re breaking the law.\\n But that hyperspecific take snubs the Supreme Court’s time-worn test:\\nWas there a clearly established violation? 48 Yes, it’s a violation to conduct a\\nwarrantless search without precompliance review. Sometimes there’s an\\nexception to this test. But not here. No exception applies. And it’s only when\\nan exception applies that the general rule doesn’t.\\n B\\n Yet even if we should ask whether the Burger exception was clearly\\nestablished, Dr. Zadeh still ought to win. Controlling law dictates that there\\nmust be statutory notice.\\n Recall Beck. In that case, the law authorized on-demand, warrantless\\nsearches. And so we upheld the search. 49 Don’t forget Fort 50 or Club Retro 51\\neither, in which we similarly enforced the notice requirement. Then of course\\nthere’s Burger itself. In upholding a warrantless search, the Supreme Court\\n\\n\\n 47 138 S. Ct. at 589 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).\\n 48 See discussion infra Section III.\\n 49 204 F.3d at 639.\\n 50 248 F.3d at 482.\\n 51 568 F.3d at 200.\\n\\n 32\\n\\n Case: 17-50518 Document: 00515018705 Page: 33 Date Filed: 07/02/2019\\n\\n\\n No. 17-50518\\n\\nemphasized that the statute “set[] forth the scope of the inspection and,\\naccordingly, place[d] the operator on notice as to how to comply with the\\nstatute.” 52\\n Those cases control. They require statutory notice. So the Burger\\nexception’s notice element is clearly established. And the Texas laws don’t\\nprovide notice for on-demand inspections.\\n For that reason, the limited-discretion requirement shouldn’t matter.\\nThe notice requirement would govern. No matter how you shake it, the officials\\nshouldn’t be immune.\\n III\\n Yet here we are—Dr. Zadeh still loses; there and back again. Everyone\\nagrees his Fourth Amendment rights were violated. But owing to a legal deus\\nex machina—the “clearly established” prong of qualified-immunity analysis—\\nthe violation eludes vindication. At first I agreed with the panel majority that\\nthe government violated the law but not clearly established law. I was wrong.\\nBeyond this case, though, I must restate my broader unease with the real-\\nworld functioning of modern immunity practice.\\n To some observers, qualified immunity smacks of unqualified impunity,\\nletting public officials duck consequences for bad behavior—no matter how\\npalpably unreasonable—as long as they were the first to behave badly. Merely\\nproving a constitutional deprivation doesn’t cut it; plaintiffs must cite\\nfunctionally identical precedent that places the legal question “beyond debate”\\nto “every” reasonable officer. 53 Put differently, it’s immaterial that someone\\nacts unconstitutionally if no prior case held such misconduct unlawful. This\\n\\n\\n\\n 52482 U.S. at 711.\\n 53 Ashcroft, 563 U.S. at 741; see also, e.g., Kisela v. Hughes, 138 S. Ct. 1148, 1153\\n(2018) (per curiam); Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam).\\n 33\\n\\n Case: 17-50518 Document: 00515018705 Page: 34 Date Filed: 07/02/2019\\n\\n\\n No. 17-50518\\n\\ncurrent “yes harm, no foul” imbalance leaves victims violated but not\\nvindicated. Wrongs are not righted, and wrongdoers are not reproached.\\n Today the majority opinion says Dr. Zadeh loses because his rights\\nweren’t clearly established. But courts of appeals are divided—intractably—\\nover precisely what degree of factual similarity must exist. How\\nindistinguishable must existing precedent be? On the one hand, the Supreme\\nCourt reassures plaintiffs that its caselaw “does not require a case directly on\\npoint for a right to be clearly established.” 54 On the other hand, the Court\\nadmonishes that “clearly established law must be ‘particularized’ to the facts\\nof the case.” 55 How to square these abstract instructions? Take Dr. Zadeh.\\nEffectively, he loses since no previous panel has ever held this exact sort of\\nsearch unconstitutional. In day-to-day practice, the “clearly established”\\nstandard is neither clear nor established among our Nation’s lower courts.\\n Two other factors perpetuate perplexity over “clearly established law.”\\nFirst, many courts grant immunity without first determining whether the\\nchallenged behavior violates the Constitution. 56 They avoid scrutinizing the\\nalleged offense by skipping to the simpler second prong: no factually analogous\\nprecedent. Forgoing a knotty constitutional inquiry makes for easier sledding,\\nno doubt. But the inexorable result is “constitutional stagnation” 57—fewer\\ncourts establishing law at all, much less clearly doing so. Section 1983 meets\\nCatch-22. Plaintiffs must produce precedent even as fewer courts are\\n\\n\\n 54 Kisela, 138 S. Ct. at 1152 (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)).\\n 55 Pauly, 137 S. Ct. at 552 (quoting Anderson, 483 U.S. at 640).\\n 56 See Pearson v. Callahan, 555 U.S. 223, 227 (2009).\\n 57 Aaron L. Nielson & Christopher J. Walker, The New Qualified Immunity, 89 S. CAL.\\n\\nL. REV. 1, 12 (2015) (“Because a great deal of constitutional litigation occurs in cases subject\\nto qualified immunity, many rights potentially might never be clearly established should a\\ncourt skip ahead to the question whether the law clearly established that the officer’s conduct\\nwas unlawful in the circumstances of the case. The danger, in short, is one of constitutional\\nstagnation.” (cleaned up)).\\n 34\\n\\n Case: 17-50518 Document: 00515018705 Page: 35 Date Filed: 07/02/2019\\n\\n\\n No. 17-50518\\n\\nproducing precedent. Important constitutional questions go unanswered\\nprecisely because no one’s answered them before. Courts then rely on that\\njudicial silence to conclude there’s no equivalent case on the books. No\\nprecedent = no clearly established law = no liability. An Escherian Stairwell.\\nHeads government wins, tails plaintiff loses.\\n Second, constitutional litigation increasingly involves cutting-edge\\ntechnologies. If courts leapfrog the underlying constitutional merits in cases\\nraising novel issues like digital privacy, then constitutional clarity—matter-of-\\nfact guidance about what the Constitution requires—remains exasperatingly\\nelusive. Result: gauzy constitutional guardrails as technological innovation\\noutpaces legal adaptation.\\n Qualified immunity aims to balance competing policy goals: “the need to\\nhold public officials accountable when they exercise power irresponsibly and\\nthe need to shield officials from harassment, distraction, and liability when\\nthey perform their duties reasonably.” 58 And I concede that the doctrine enjoys\\nspecial favor at the Supreme Court, which seems untroubled by any one-\\nsidedness. 59 The Court recently declined to take up a closely watched case\\nchallenging the warrantless strip search of a four-year-old preschooler. 60 A\\nstrange-bedfellows alliance of leading scholars and advocacy groups of every\\nideological stripe—perhaps the most diverse amici ever assembled—had joined\\nforces to urge the Court to fundamentally reshape immunity doctrine. Even in\\n\\n\\n\\n 58 Pearson, 555 U.S. at 231 (flagging these “two important interests”).\\n 59 That said, four sitting Justices “have authored or joined opinions expressing\\nsympathy” with various doctrinal, procedural, and pragmatic critiques of qualified immunity.\\nJoanna C. Schwartz, The Case Against Qualified Immunity, 93 NOTRE DAME L. REV. 1797,\\n1800 (2018) (including Justices Thomas, Ginsburg, Breyer, and Sotomayor, plus recently\\nretired Justice Kennedy).\\n 60 Doe v. Woodard, 912 F.3d 1278 (10th Cir. 2019), cert. denied, No. 18-1173, 2019 WL\\n\\n1116409, at *1 (May 20, 2019).\\n 35\\n\\n Case: 17-50518 Document: 00515018705 Page: 36 Date Filed: 07/02/2019\\n\\n\\n No. 17-50518\\n\\nthis hyperpartisan age, there is a growing, cross-ideological chorus of jurists 61\\nand scholars 62 urging recalibration of contemporary immunity jurisprudence.\\n Indeed, it’s curious how this entrenched, judge-created doctrine excuses\\nconstitutional violations by limiting the statute Congress passed to redress\\nconstitutional violations. 63 Count me with Chief Justice Marshall: “The\\ngovernment of the United States has been emphatically termed a government\\nof laws, and not of men. It will certainly cease to deserve this high appellation,\\nif the laws furnish no remedy for the violation of a vested legal right.” 64\\n\\n\\n 61 See, e.g., Kisela, 138 S. Ct. at 1162 (Sotomayor, J., dissenting) (fearing the Supreme\\nCourt’s “one-sided approach to qualified immunity transforms the doctrine into an absolute\\nshield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment”\\nand signaling “that palpably unreasonable conduct will go unpunished”); Ziglar v. Abbasi,\\n137 S. Ct. 1843, 1872 (2017) (Thomas, J., concurring in part and concurring in the judgment)\\n(“In an appropriate case, we should reconsider our qualified immunity jurisprudence.”);\\nThompson v. Clark, No. 14-CV-7349, 2018 WL 3128975, at *11 (E.D.N.Y. June 26, 2018)\\n(Weinstein, J.) (“The Supreme Court’s recent emphasis on shielding public officials and\\nfederal and local law enforcement means many individuals who suffer a constitutional\\ndeprivation will have no redress . . . .”).\\n 62 Last year’s symposium issue of the Notre Dame Law Review gathers several\\n\\nscholarly essays that scrutinize qualified immunity and discuss potential refinements given\\nmounting legal and empirical criticism. Symposium, The Future of Qualified Immunity, 93\\nNOTRE DAME L. REV. 1793 (2018); see also, e.g., William Baude, Is Qualified Immunity\\nUnlawful?, 106 CALIF. L. REV. 45, 88 (2018) (claiming the doctrine “lacks legal justification,\\nand the Court’s justifications are unpersuasive”); Joanna C. Schwartz, How Qualified\\nImmunity Fails, 127 YALE L.J. 2, 70 (2017) (concluding that “the Court’s efforts to advance\\nits policy goals through qualified immunity doctrine has been an exercise in futility”); John\\nC. Jeffries, Jr., What’s Wrong with Qualified Immunity?, 62 FLA. L. REV. 851, 869 (2010)\\n(“Today, the law of qualified immunity is out of balance . . . . The Supreme Court needs to\\nintervene, not only to reconcile the divergent approaches of the Circuits but also, and more\\nfundamentally, to rethink qualified immunity and get constitutional tort law back on track.”).\\nThe essays in Notre Dame Law Review feature lively disagreement, including a nuanced pro-\\nimmunity piece by Professors Aaron Nielson and Christopher Walker, A Qualified Defense of\\nQualified Immunity, that addresses two principal anti-immunity arguments—that qualified\\nimmunity (1) is unlawful as a matter of positive law and (2) fails to advance its purported\\npolicy objectives. Aaron L. Nielson & Christopher J. Walker, A Qualified Defense of Qualified\\nImmunity, 93 NOTRE DAME L. REV. 1853 (2018).\\n 63 Cf. United States v. Ugalde, 861 F.2d 802, 810 (5th Cir. 1988) (“We must ensure\\n\\nthat for every right there is a remedy.” (citing Marbury, 5 U.S. at 163)).\\n 64 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). In Little v. Barreme, Chief\\n\\nJustice Marshall’s opinion declined to “excuse from damages” Captain George Little for\\n 36\\n\\n Case: 17-50518 Document: 00515018705 Page: 37 Date Filed: 07/02/2019\\n\\n\\n No. 17-50518\\n\\n Doctrinal reform is arduous, often-Sisyphean work. Finding faults is\\neasy; finding solutions, less so. But even if qualified immunity continues its\\nforward march and avoids sweeping reconsideration, it certainly merits a\\nrefined procedural approach that more smartly—and fairly—serves its\\nintended objectives.\\n\\n\\n\\n\\nunlawfully capturing a Danish vessel, though it was “seized with pure intention.” 6 U.S. (2\\nCranch) 170, 179 (1804).\\n 37\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4413311/\", \"author_raw\": \"DON R. WILLETT, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"JOLLY"},"judge2":{"kind":"string","value":"SOUTHWICK"},"judge3":{"kind":"string","value":"WILLETT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"JOLLY\": \", Circuit\", \"SOUTHWICK\": \", Circuit\", \"WILLETT\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4636058/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Doctor Joseph A. ZADEH; Jane Doe, Patient, Plaintiffs - Appellants v. Mari ROBINSON, in Her Individual Capacity and in Her Official Capacity; Sharon Pease, in Her Individual Capacity; Kara Kirby, in Her Individual Capacity, Defendants - Appellees\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-02\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-50518 Document: 00515018705 Page: 1 Date Filed: 07/02/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 17-50518 July 2, 2019\n Lyle W. Cayce\nDOCTOR JOSEPH A. ZADEH; JANE DOE, Patient, Clerk\n\n\n Plaintiffs - Appellants\n\nv.\n\nMARI ROBINSON, in her individual capacity and in her official capacity;\nSHARON PEASE, in her individual capacity; KARA KIRBY, in her\nindividual capacity,\n\n Defendants – Appellees\n\n\n\n Appeals from the United States District Court\n for the Western District of Texas\n\n\n ON PETITION FOR REHEARING EN BANC\n\nBefore JOLLY, SOUTHWICK, and WILLETT, Circuit Judges.\nLESLIE H. SOUTHWICK, Circuit Judge:\n No member of the panel nor judge in regular active service requested\nthat the court be polled on rehearing en banc. The petition for rehearing en\nbanc is therefore DENIED. See FED. R. APP. P. and 5th Cir. R. 35. Treating\nthe petition for rehearing en banc as a petition for panel rehearing, the petition\nis GRANTED. We withdraw our prior opinion, Zadeh v. Robinson, 902 F.3d\n483 (5th Cir. 2018), and substitute the following.\n\n Case: 17-50518 Document: 00515018705 Page: 2 Date Filed: 07/02/2019\n\n\n\n No. 17-50518\n The Texas Medical Board executed an administrative subpoena on\nDr. Joseph Zadeh’s medical office. Thereafter, Dr. Zadeh and one of his\npatients sued several Board members under 42 U.S.C. § 1983, claiming that\nthe Board’s actions violated the Fourth Amendment. The district court\npartially granted the defendants’ motion to dismiss and later granted their\nmotion for summary judgment rejecting all remaining claims. We AFFIRM.\n\n\n FACTUAL AND PROCEDURAL BACKGROUND\n Plaintiff Dr. Joseph Zadeh appeals the dismissal of his Section 1983\nclaim against several members of the Texas Medical Board who he claims\nviolated his constitutional rights through a warrantless search of his office and\nmedical records. Dr. Zadeh, an internal medicine doctor, owns and operates a\nmedical practice in Euless, Texas. One of his patients, Jane Doe, is also a\nplaintiff-appellant in this case.\n Dr. Zadeh was the subject of an administrative proceeding before the\nState Office of Administrative Hearings (“SOAH”) for violations of the Board’s\nregulations. The Drug Enforcement Agency (“DEA”) also was investigating\nhim. Indeed, it appears the Board first learned about allegations against\nDr. Zadeh when the DEA filed a complaint with the Board about his\nprescribing practices in September 2013. The DEA investigator emailed a\nrepresentative of the Board, stating, “I’m at a point in the criminal case that I\nneed to interview Dr. Zadeh and review his patient files.” The Board then\ninitiated an investigation.\n As part of this investigation, Defendants Sharon Pease and Kara Kirby,\nwho were investigators with the Board, served an administrative subpoena on\nDr. Zadeh on October 22, 2013. The subpoena had the electronic signature of\nDefendant Mari Robinson, who was the Executive Director of the Board. The\n 2\n\n Case: 17-50518 Document: 00515018705 Page: 3 Date Filed: 07/02/2019\n\n\n\n No. 17-50518\nsubpoena was for the immediate production of the medical records of sixteen\nof Dr. Zadeh’s patients. Two DEA agents who were investigating related\ncriminal allegations accompanied Kirby and Pease.\n The district court found the “facts surrounding the execution of the\nsubpoena” to be “largely undisputed.” Dr. Zadeh was not present when the\ninvestigators arrived. The subpoena was handed to the doctor’s assistant. The\ninvestigators sat in the medical office waiting room to give the doctor time to\nappear. While they waited, the assistant spoke on the phone with Dr. Zadeh,\nhis lawyer, and his brother who also is a lawyer. The assistant testified that\nafter these calls had occurred but no permission to proceed had been given, the\ninvestigators told her they would suspend Dr. Zadeh’s license if the records\nthey sought were not produced. The investigators admit something was said\nthat was akin to a promise of some vague “disciplinary action.” What was said\nat that point is at least unclear. The assistant eventually complied, taking the\ndefendants into a conference room and delivering the requested records to\nthem. Although most of their time was spent inside the public waiting area or\nconference room, the investigators also approached the medical assistant to\nask for help while she was in exam rooms and later in a storage room.\n As a result of that search, Dr. Zadeh and his patient, Jane Doe, sued\nRobinson, Pease, and Kirby in their individual capacities and Robinson in her\nofficial capacity in the United States District Court for the Western District of\nTexas. They alleged the defendants’ actions violated their Fourth Amendment,\ndue process, and privacy rights. The plaintiffs sought monetary damages\nunder 42 U.S.C. § 1983 as well as declaratory relief. The defendants moved to\ndismiss the claims on these grounds: (1) the plaintiffs lacked standing; (2) the\nYounger abstention doctrine barred the requests for declaratory relief; (3) the\nclaim against Robinson in her official capacity was barred by the doctrine of\n 3\n\n Case: 17-50518 Document: 00515018705 Page: 4 Date Filed: 07/02/2019\n\n\n\n No. 17-50518\nsovereign immunity; (4) the doctrine of qualified immunity applied to the\nclaims against the defendants in their individual capacities.\n In ruling on the motion to dismiss, the district court held Dr. Zadeh had\nstanding to pursue declaratory relief, but Jane Doe did not. Nonetheless, the\ndistrict court concluded that “the Younger abstention doctrine require[d] [it] to\nabstain from adjudicating Plaintiff Zadeh’s claims for declaratory relief.” The\ndistrict court also held that sovereign immunity barred the plaintiffs’ claims\nfor monetary damages against Robinson in her official capacity. Finally, the\ncourt concluded that the defendants were entitled to qualified immunity for\nthe privacy and due process claims. The only part of the suit left, then, was\nDr. Zadeh’s claim that the defendants violated his clearly established Fourth\nAmendment rights during the search of his office.\n The defendants moved for summary judgment on “whether Defendants\nexceeded their statutory subpoena authority by searching and inspecting\nPlaintiff’s office and records.” Although the plaintiffs alleged that the\ninvestigators performed a thorough search of Dr. Zadeh’s office, the district\ncourt found that the record did not support this allegation. Instead, the district\ncourt determined that the “Defendants’ presence at Plaintiff’s office was solely\nto execute the subpoena instanter.” The district court also held that Robinson\nwas not liable as she neither affirmatively participated in the alleged search\nnor implemented unconstitutional policies that caused the alleged\nconstitutional deprivation. Further, there was “no evidence Defendants Pease\nand Kirby inspected Plaintiff’s office or searched his records.” The plaintiffs\ntimely appealed.\n\n\n\n\n 4\n\n Case: 17-50518 Document: 00515018705 Page: 5 Date Filed: 07/02/2019\n\n\n\n No. 17-50518\n DISCUSSION\n The plaintiffs appeal both the order granting the motion to dismiss in\npart and the order granting the motion for summary judgment. Although we\nreview both de novo, a different legal standard applies to each:\n In the former, the central issue is whether, in the light most\n favorable to the plaintiff, the complaint states a valid claim for\n relief. In the latter, we go beyond the pleadings to determine\n whether there is no genuine issue as to any material fact and that\n the movant is entitled to judgment as a matter of law.\nSt. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 440 n.8 (5th Cir. 2000)\n(citations omitted).\n We first address the plaintiffs’ challenge to the district court’s grant of\nqualified immunity, evaluating whether clearly established law prohibited the\ndefendants’ conduct. Next, we discuss whether the district court erred in\nabstaining from deciding the plaintiffs’ claims for declaratory judgment.\nFinally, we analyze whether Robinson was liable in her supervisory capacity.\n\n\nI. Grant of qualified immunity\n “The doctrine of qualified immunity protects government officials from\ncivil damages liability when their actions could reasonably have been believed\nto be legal.” Morgan v. Swanson, 659 F.3d 359, 370–71 (5th Cir. 2011).\nOfficials are entitled to qualified immunity “unless (1) they violated a federal\nstatutory or constitutional right, and (2) the unlawfulness of their conduct was\n‘clearly established at the time.’” District of Columbia v. Wesby, 138 S. Ct. 577,\n589 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).\n Using this framework, we analyze the plaintiffs’ arguments that clearly\nestablished law prohibited the defendants’ execution of the subpoena\ninstanter. The plaintiffs offer two theories for why the defendants’ conduct\n\n 5\n\n Case: 17-50518 Document: 00515018705 Page: 6 Date Filed: 07/02/2019\n\n\n\n No. 17-50518\nwas unconstitutional. First, they argue it was a warrantless search that did\nnot satisfy the administrative exception. Second, they argue it was a\npretextual search and thus unconstitutional.\n\n\n a. Warrantless search\n The plaintiffs argue the Board violated the Fourth Amendment when it\ndemanded immediate compliance with its administrative subpoena. We have\npreviously considered a challenge to a subpoena instanter executed by the\nTexas Medical Board. See Cotropia v. Chapman, 721 F. App’x 354 (5th Cir.\n2018). In that nonprecedential opinion, we held: “Absent consent, exigent\ncircumstances, or the like, in order for an administrative search to be\nconstitutional, the subject of the search must be afforded an opportunity to\nobtain precompliance review before a neutral decisionmaker.” Id. at 358\n(quoting City of Los Angeles v. Patel, 135 S. Ct. 2243, 2452 (2015)).\n In that case, the physician at the center of a Board investigation pled\nsufficient facts to overcome qualified immunity. Id. at 361. The doctor alleged\nthat a Board member “violated the clearly established right to an opportunity\nto obtain precompliance review of an administrative subpoena before a neutral\ndecisionmaker” when he took documents from the physician’s office over\nobjections from the office receptionist. Id. at 357. Relying on Supreme Court\nprecedent, we held that it was clear at the time that “prior to compliance,\nCotropia was entitled to an opportunity to obtain review of the administrative\nsubpoena before a neutral decisionmaker.” Id. at 358 (citing See v. City of\nSeattle, 387 U.S. 541, 545 (1967); Donovan v. Lone Steer, Inc., 464 U.S. 408,\n415 (1984)). Similarly, the demand to turn over Dr. Zadeh’s medical records\nimmediately did not provide an opportunity for precompliance review. We\nagree, then, that a requirement of precompliance review in many, if not most,\n 6\n\n Case: 17-50518 Document: 00515018705 Page: 7 Date Filed: 07/02/2019\n\n\n\n No. 17-50518\nadministrative searches had been clearly established by Supreme Court\nprecedent prior to the search here.\n The defendants acknowledge this law but maintain there was no\nconstitutional violation because this search fell into an exception to the general\nrule requiring precompliance review. We next examine that argument.\n\n\n i. Closely regulated industry\n No opportunity for precompliance review is needed for administrative\nsearches of industries that “have such a history of government oversight that\nno reasonable expectation of privacy” exists for individuals engaging in that\nindustry. Marshall v. Barlow’s, Inc., 436 U.S. 307, 313 (1978). Even so,\nwarrantless inspections in closely regulated industries must still satisfy three\ncriteria: (1) a substantial government interest, (2) a regulatory scheme that\nrequires warrantless searches to further the government interest, and (3) “a\nconstitutionally adequate substitute for a warrant.” New York v. Burger, 482\nU.S. 691, 702–03 (1987) (quoting Donovan v. Dewey, 452 U.S. 594, 603 (1981)).\n Cotropia did not resolve whether the Board’s use of administrative\nsubpoenas satisfied the Burger criteria because the issue was not raised until\noral argument. Cotropia, 721 F. App’x at 360 & n.6. As a result, the panel’s\nholding was expressly limited to concluding that the Board’s demand for\nimmediate compliance with the subpoena did not satisfy the general\nadministrative exception to the warrant requirement. The argument has\ntimely been raised here, though. Thus, we must discuss whether the Burger\nexception permitted the Board’s administrative subpoena and whether that\nlaw was clearly established at the time of its execution.\n To categorize industries under Burger, courts consider the history of\nwarrantless searches in the industry, how extensive the regulatory scheme is,\n 7\n\n Case: 17-50518 Document: 00515018705 Page: 8 Date Filed: 07/02/2019\n\n\n\n No. 17-50518\nwhether other states have similar schemes, and whether the industry would\npose a threat to the public welfare if left unregulated. See Burger, 482 U.S. at\n704; Patel, 135 S. Ct. at 2454. The defendants characterize the relevant\nindustry in two different ways. We evaluate first whether the practice of\nmedicine is a closely regulated industry and then whether the practice of\nprescribing controlled substances is closely regulated.\n Acknowledging that the medical profession is subject to close oversight,\nthe district court emphasized the absence of a history of warrantless\ninspections to conclude that the medical profession was not a closely regulated\nindustry. Important to its conclusion was the confidential nature of the doctor-\npatient relationship: “It strains credibility to suggest that doctors and their\npatients have no reasonable expectation of privacy.” On appeal, the defendants\nall but concede that there is not a lengthy history of warrantless searches.\nThey instead emphasize the extensive regulatory scheme governing the\npractice of medicine and the risk that the industry could pose to the public\nwelfare.\n There is no doubt that the medical profession is extensively regulated\nand has licensure requirements. Satisfying the Burger doctrine requires more.\nThe Supreme Court instructs “that the doctrine is essentially defined by ‘the\npervasiveness and regularity of the federal regulation’ and the effect of such\nregulation upon an owner’s expectation of privacy.” Burger, 482 U.S. at 701\n(quoting Dewey, 452 U.S. at 605–06). Another key factor is “the duration of a\nparticular regulatory scheme.” Id. (quoting Dewey, 452 U.S. at 606).\n The Board cites several laws or regulations governing the behavior of\ndoctors. Outside of citing Texas’s licensure requirement for physicians, the\nregulations the Board cites do not apply to the entire medical profession.\nInstead, they target the practice of prescribing controlled substances. As\n 8\n\n Case: 17-50518 Document: 00515018705 Page: 9 Date Filed: 07/02/2019\n\n\n\n No. 17-50518\nexamples, the Board states that doctors must register with the DEA to\nprescribe controlled substances, TEX. HEALTH & SAFETY CODE § 481.061; that\nprescriptions of controlled substances are monitored by several law\nenforcement agencies, id. §§ 481.067, 481.075, 481.076; and that pain\nmanagement clinics must register as such, which allows the Board to inspect\nthem from time to time, TEX. OCC. CODE §§ 168.101, 168.052; 37 Tex. Reg.\n10079, 10079–80 (2012), adopted 38 Tex. Reg. 1876, 1876–77 (2013), amended\n39 Tex. Reg. 297, 297–98 (2014) (former 22 TEX. ADMIN. CODE § 195.2); 35 Tex.\nReg. 1924, 1925–26 (2010), adopted 35 Tex. Reg. 3281, 3281–82 (2010),\namended 43 Tex. Reg. 768, 768–74 (2018) (former 22 TEX. ADMIN. CODE\n§ 195.3). The Board also refers us to laws and regulations that similarly\nregulate anesthesia. These, though, do not amount to pervasiveness and\nregularity of regulation over the medical industry as a whole as Burger\nrequires. Instead, only specific groups of doctors may have been put on notice\nthat the Board may perform some inspections.\n We also do not see in the medical profession an entrenched history of\nwarrantless searches. Its absence is relevant, though not dispositive, to our\nissue. Burger, 482 U.S. at 701. For example, when the Court held that the\nliquor industry was closely regulated, it mentioned that English\ncommissioners could inspect brewing houses on demand in the 1660s, and that\nMassachusetts passed a similar law in 1692. Colonnade Catering Corp. v.\nUnited States, 397 U.S. 72, 75 (1970). It then referred to a 1791 federal law\nthat has continued in various forms, permitting federal officers to perform\nwarrantless searches of distilleries and imposing an excise tax on distilled\nliquor. Id. Because the focus there was “the liquor industry long subject to\nclose supervision and inspection,” the Court concluded that the Fourth\n\n\n 9\n\n Case: 17-50518 Document: 00515018705 Page: 10 Date Filed: 07/02/2019\n\n\n\n No. 17-50518\nAmendment did not prohibit the warrantless searches authorized by Congress.\nId. at 77. Here, there is no such history.\n In considering the reasonable expectation of privacy, we also consider\nthe sensitive nature of medical records. The Ninth Circuit explained that “the\ntheory behind the closely regulated industry exception is that persons\nengaging in such industries, and persons present in those workplaces, have a\ndiminished expectation of privacy.” Tucson Woman’s Clinic v. Eden, 379 F.3d\n531, 550 (9th Cir. 2004). We agree with that court’s observation that in medical\ncontexts, the expectation of privacy likely is heightened. Id.\n Admittedly, federal regulations do exempt the Board from the privacy\nrequirements of the Health Insurance Portability and Accountability Act\n(“HIPAA”). 45 C.F.R. § 164.512. Further, the Board cites Texas laws providing\nthat where the Board does obtain information, it is subject to confidentiality\nrequirements. See TEX. OCC. CODE §§ 159.002; 159.003(a)(5); 164.007(c). That\nHIPAA permits disclosure to the Board and that the regulations governing the\nBoard continue to protect that information from disclosure does not mean that\nthe Board is entitled to access to that information through an administrative\nsearch without allowing an opportunity for precompliance review.\n We conclude, then, that the medical industry as a whole is not a closely\nregulated industry for purposes of Burger. Still, even if the medical profession\nat large cannot be said to fall within these Burger factors, it is possible that a\nsubset, such as those who prescribe controlled substances, would do so.\nBecause the parties focus their analysis of whether there is a closely regulated\nindustry on the medical profession as a whole and not on pain management\nclinics, we assume only for purposes of our analysis today that pain\nmanagement clinics are part of a closely regulated industry and that Dr. Zadeh\nwas operating such a clinic even if his clinic was not certified as one. Such\n 10\n\n Case: 17-50518 Document: 00515018705 Page: 11 Date Filed: 07/02/2019\n\n\n\n No. 17-50518\nassumptions are appropriate in this case because ultimately our resolution\nturns on whether the relevant law was clearly established. At this point, we\ncan at least say that the law was not clearly established whether pain\nmanagement clinics are part of a closely regulated industry. The remaining\nrelevant law, established with clarity or not, is analyzed below.\n\n\n ii. Burger exception requirements\n Even were we to accept the defendants’ argument that doctors\nprescribing controlled substances are engaging in a closely regulated industry\nwith less reasonable expectations of privacy, administrative searches of such\nindustries still must satisfy the three Burger criteria. There is no meaningful\ndispute in this case as to the first two factors, namely, that the State has a\nsubstantial interest in regulating the prescription of controlled substances and\nthat the inspection of a doctor’s records would aid the Government in\nregulating the industry. We thus analyze only whether the statutory scheme\nis a proper substitute for a search warrant. The Board relies on its authority\nto issues subpoenas and to inspect pain management clinics. The principal\nresponse from plaintiffs is that neither provides a constitutionally adequate\nsubstitute for a warrant.\n In order for a warrant substitute authorized by statute to be\nconstitutionally adequate, “the regulatory statute must perform the two basic\nfunctions of a warrant: it must advise the owner of the commercial premises\nthat the search is being made pursuant to the law and has a properly defined\nscope, and it must limit the discretion of the inspecting officers.” Burger, 482\nU.S. at 703. The relevant statute provides: “The board may issue a subpoena\nor a subpoena duces tecum to compel the attendance of a witness and the\nproduction of books, records, and documents.” TEX. OCC. CODE. § 153.007(a).\n 11\n\n Case: 17-50518 Document: 00515018705 Page: 12 Date Filed: 07/02/2019\n\n\n\n No. 17-50518\nThe Board argues that the statute, when considered with the following\nregulation, limits the discretion of the officials. The regulation provides that\nafter a “request by the board or board representatives, a licensee shall furnish\nto the board copies of medical records or the original records within a\nreasonable time period, as prescribed at the time of the request.” 22 TEX.\nADMIN. CODE § 179.4(a). The regulation defines “reasonable time” as “fourteen\ncalendar days or a shorter time if required by the urgency of the situation or\nthe possibility that the records may be lost, damaged, or destroyed.” Id.\n The district court held that a search using the Board’s subpoena\nauthority did not satisfy the third factor of the Burger test as it was “purely\ndiscretionary,” allowing the Board “to choose which doctors to subpoena and to\ndo so at a frequency it determines.” To evaluate that holding, we consider the\nlimits that do exist: only licensees are subject to the subpoena; only medical\nrecords must be produced; and it is the Board or its representatives who will\nbe asking for the records. As the district court stated, though, there is no\nidentifiable limit on whose records can properly be subpoenaed.\n As to inspections of pain management clinics, the Board argues that\nsome limits to its authority are set by the statute permitting it to inspect pain\nmanagement clinics. Specifically, the statute allows it to examine “the\ndocuments of a physician practicing at the clinic, as necessary to ensure\ncompliance with this chapter.” TEX. OCC. CODE. § 168.052(a). Providing more\nspecific guidance, the regulation in effect at the time provided:\n The board may conduct inspections to enforce these rules, including\n inspections of a pain management clinic and of documents of a\n physician’s practice. The board may contract with another state agency\n or qualified person to conduct these inspections.\n\n\n\n\n 12\n\n Case: 17-50518 Document: 00515018705 Page: 13 Date Filed: 07/02/2019\n\n\n\n No. 17-50518\n35 Tex. Reg. 1925, 1925–26 (2010), adopted 35 Tex. Reg. 3281, 3281–82 (2010),\namended 43 Tex. Reg. 768, 768–74 (2018) (former 22 TEX. ADMIN. CODE\n§ 195.3).\n The district court found this inspection authority, like the subpoena\nauthority, to be “purely discretionary.” The governing criteria for an inspection\nis that the target be a pain management clinic, that the Board performs the\ninspection, and that the purpose for the search be to determine compliance\nwith pain management rules. We agree with the district court, though, that\nthese requirements suffered from the same fatal Burger flaw as the subpoena\nauthority: they did not limit how the clinics inspected are chosen.\n In summary, there are insufficient limits on the discretion of the Board\nto satisfy the Burger requirements, whether considering the medical profession\nin general or as to pain management clinics. What is left is the question of\nwhether the law on these points was clearly established and, regardless,\nwhether the search was invalid as pretextual.\n\n\n iii. Clearly established law for qualified immunity\n To summarize, we have concluded there was a violation of Dr. Zadeh’s\nconstitutional rights. That is true even with our twin assumptions that pain\nmanagement clinics are part of a closely regulated industry and that Dr. Zadeh\noperated a pain management clinic. Nonetheless, the defendants are entitled\nto qualified immunity unless the constitutional requirements they violated\nwere clearly established at the time of their actions. Reichle, 566 U.S. at 664.\nWe hold that it was clearly established at the time of this search that the\nmedical profession as a whole is not a closely regulated industry, meaning that\ngovernmental agents violate the Constitution when they search clinics that are\nnot pain management clinics without providing an opportunity for\n 13\n\n Case: 17-50518 Document: 00515018705 Page: 14 Date Filed: 07/02/2019\n\n\n\n No. 17-50518\nprecompliance review. We also hold, even assuming that pain management\nclinics are part of a closely regulated industry, that on-demand searches of\nthose clinics violate the constitution when the statutory scheme authorizing\nthe search fails to provide sufficient constraints on the discretion of the\ninspecting officers. We need to analyze, though, whether that last statement\nof law was clearly established when this search occurred.\n Our analysis of the clarity of relevant law is objective, meaning it does\nnot focus on the specific defendants’ knowledge. “The touchstone of this\ninquiry is whether a reasonable person would have believed that his conduct\nconformed to the constitutional standard in light of the information available\nto him and the clearly established law.” Goodson v. City of Corpus Christi, 202\nF.3d 730, 736 (5th Cir. 2000). “[E]ven law enforcement officials who\n‘reasonably but mistakenly [commit a constitutional violation]’ are entitled to\nimmunity.” Glenn v. City of Tyler, 242 F.3d 307, 312–13 (5th Cir. 2001)\n(quoting Goodson, 202 F.3d at 736). For the law to be clearly established, there\nmust be a close congruence of the facts in the precedent and those in the case\nbefore us. Wesby, 138 S. Ct. at 589–90. “The precedent must be clear enough\nthat every reasonable official would interpret it to establish the particular rule\nthe plaintiffs seek to apply.” Id. at 590.\n Defendants rely on one of our precedents that reviewed an\nadministrative search of a dentist’s office by agents of the Texas State Board\nof Dental Examiners, accompanied by Department of Public Safety officials.\nBeck v. Tex. State Bd. of Dental Exam’rs, 204 F.3d 629, 632 (5th Cir. 2000).\nDentist Beck was a target because of complaints filed against him for\nprescribing controlled substances. Id. We concluded that the search did not\nviolate the plaintiff’s clearly established rights. Id. at 638–39. We applied the\nBurger exception and determined there was a significant state interest in\n 14\n\n Case: 17-50518 Document: 00515018705 Page: 15 Date Filed: 07/02/2019\n\n\n\n No. 17-50518\nregulating dentists’ use of controlled substances; the search was conducted\npursuant to two regulatory schemes; and there was an adequate substitute for\na warrant where the statute permitted the official to conduct inspections\nduring “reasonable times” after “stating his purpose” and presenting his\ncredentials to the owner. Id. at 638–39. In light of Beck, the Board argues that\nreasonable investigators could have believed the Burger exception permitted\nthe execution of the subpoena as they too were investigating prescriptions of\ncontrolled substances within the medical industry.\n The plaintiffs insist that Beck is “patently distinguishable” for the same\nreason argued in the separate opinion here. The clarity of any possible\ndistinction, though, must be viewed through the lens that the law, including a\ndistinction, must be “sufficiently clear that every reasonable official would\nunderstand that what he is doing is unlawful” at that time. Wesby, 138 S. Ct.\nat 589 (quotation marks omitted). That means “existing law must have placed\nthe constitutionality of the officer’s conduct ‘beyond debate.” Id. Perhaps most\nrelevant, the “legal principle [must] clearly prohibit the officer’s conduct in the\nparticular circumstances before him. The rule’s contours must be so well\ndefined that it is ‘clear to a reasonable officer that his conduct was unlawful in\nthe situation he confronted.’” Id. at 590 (emphasis added).\n The claimed sufficient distinction here is that the regulations and\nstatutes under which the investigators in Beck acted explicitly permitted\ninspections without prior notice. See Beck, 204 F.3d at 639. The Beck court\ndiscussed that point at the end of the opinion, as it addressed several questions\nregarding whether what occurred was a valid administrative search of a closely\nregulated industry. Id. The final subject the court discussed was that one of\nthe statutes under which the inspection was conducted did not require that\nprior notice be given. Id. (quoting Section 5.01(c) of the Texas Controlled\n 15\n\n Case: 17-50518 Document: 00515018705 Page: 16 Date Filed: 07/02/2019\n\n\n\n No. 17-50518\nSubstances Act.) That is no small distinction, and we conclude today that\nabsent similar statutory or perhaps regulatory authority that dispenses with\nprior notice, a search such as occurred here cannot be conducted without prior\nnotice. The issue for us, though, is whether that law was clearly established\nat the time of the search we are reviewing today.\n As we already stated, the right is not clearly established unless it is\nbeyond debate using an objective test. We have discussed the intricacies of\nNew York v. Burger, which permit warrantless searches when they satisfy a\nthree-factor test. Our Beck decision held that the search there was of a closely\nregulated industry, and therefore went through the three Burger factors. The\ndiscussion of the specific statutory authorization for no-notice inspections was\nto show that the third Burger factor was satisfied, which is that an adequate\nsubstitute for a warrant existed. We did not say in Beck that the only sufficient\nsubstitute under Burger was a statute authorizing no-notice searches. We did\nhold that “under these circumstances, Beck does not show a violation of a\nclearly established constitutional right.” Beck, 204 F.3d at 639.\n Instead of clearly establishing the principle that prior notice of a\nregulatory search must be given unless the authorizing statute explicitly\nannounces it is unnecessary, Beck applied the general Burger principle to the\nfacts of that case that a warrant substitute authorized by a “regulatory statute\nmust perform the two basic functions of a warrant: it must advise the owner of\nthe commercial premises that the search is being made pursuant to the law\nand has a properly defined scope, and it must limit the discretion of the\ninspecting officers.” Burger, 482 U.S. at 703. In the Beck situation, that factor\nwas satisfied with the statutory language already discussed. We cannot see,\nthough, that every reasonable official prior to conducting a search under the\ncircumstances of this case would know this Burger factor was not satisfied. We\n 16\n\n Case: 17-50518 Document: 00515018705 Page: 17 Date Filed: 07/02/2019\n\n\n\n No. 17-50518\nthink some, even many, reasonable officers would believe under the third\nBurger factor that the owner of the premises was charged with knowledge that\na statute authorized the search, and the officers would reasonably believe the\nscope of the search and the discretion of the officials was validly limited. We\nhave held that the statute fails this standard, but we do not hold that all\nreasonable officers would have known that, until now.\n Therefore, although Beck does not control the constitutionality of the\nBoard’s actions in this case, it does weigh in favor of the defendants’ receiving\nqualified immunity. We find more guidance from cases where a statute did not\nclearly limit the official’s discretion in selecting who would be subject to an\nadministrative search. In one, we held that the statute provided a\nconstitutionally adequate substitute for a warrant where the statute provided:\n The licensing agency shall make or cause to be made inspections\n relative to compliance with the laws and regulations governing the\n licensure of child care facilities. Such inspections shall be made at\n least once a year but additional inspections may be made as often\n as deemed necessary by the licensing agency.\n\nSee Ellis v. Miss. Dep’t of Health, 344 F. App’x 43 (5th Cir. 2009) (citing MISS.\nCODE. ANN. § 43-20-15). Though that opinion is not precedential, we agree\nwith its reasoning.\n We also upheld an administrative search where, despite limits on the\nconduct of an officer after a traffic stop, there were not clear limits on an\nofficer’s discretion as to whom to stop. See United States v. Fort, 248 F.3d 475,\n482 (5th Cir. 2001). Because we have not so far required there to be a clear\nlimit on determining whom officials select for an administrative search, the\ndefendants reasonably could have believed that the administrative scheme\nhere provided a constitutionally adequate substitute for a warrant.\n\n\n 17\n\n Case: 17-50518 Document: 00515018705 Page: 18 Date Filed: 07/02/2019\n\n\n\n No. 17-50518\n Finally, the plaintiffs argue that even if qualified immunity might apply\nto defendants who conducted a proper search, the defendants did not follow the\nstatutory scheme. Therefore, they assert, caselaw in which the legal\nrequirements for the search were followed is inapplicable. The claims of\noverstepping authority, though, are minor. First, while the medical assistant\nwas waiting for Dr. Zadeh to appear, there is evidence one of the investigators\napproached the assistant at her desk, then followed her into two exam rooms.\nWhile in one of the rooms, the investigator asked if controlled substances were\nkept in the room. Second, there is evidence this same investigator also\napproached the assistant while the latter was in a storage room and asked if\nthe investigators could use the medical office’s copy machine. The district court\nsaid there was no evidence the investigator ever looked at any files or went\nsomewhere in the medical office without the assistant. Finally, as soon as the\ninvestigators were asked to leave the office, they did so. We agree with the\ndistrict court that there is “no support in the record” to sustain the allegation\nthe investigators did a “thorough search and inspection.” The factual basis for\ndeviations from search protocols is insubstantial.\n In conclusion, the unlawfulness of the defendants’ conduct was not\nclearly established at the time of the search.\n\n\n b. Pretextual searches\n The plaintiffs also argue that the search was a pretext for uncovering\nevidence of criminal wrongdoing, not a valid administrative search. According\nto the plaintiffs, the DEA brought Dr. Zadeh’s possible misdeeds before the\nMedical Board. A DEA agent then was present during the search. To finish\nthe story, though, the Medical Board proceeded against Dr. Zadeh. Before\nthere was a full hearing on the merits, the Board entered an agreed order. In\n 18\n\n Case: 17-50518 Document: 00515018705 Page: 19 Date Filed: 07/02/2019\n\n\n\n No. 17-50518\nthe order, the panel found that Dr. Zadeh was operating a pain management\nclinic without registering it. There is nothing in this record indicating whether\nthe DEA’s investigation resulted in a criminal prosecution or any other action.\n “Even under a valid inspection regime, the administrative search cannot\nbe pretextual.” Club Retro, LLC v. Hilton, 568 F.3d 181, 197 (5th Cir. 2009).\nIt is incorrect, though, to use the label “pretext” simply because of an overlap\nbetween an administrative search and a criminal search. The Burger Court\nremarked that “a State can address a major social problem both by way of an\nadministrative scheme and through penal sanctions.” Burger, 482 U.S. at 712.\nTo determine whether the search there was constitutional, the Court looked to\nwhether the administrative scheme really “authorize[d] searches undertaken\nsolely to uncover evidence of criminality.” Id.\n Similarly, the Supreme Court dismissed a defendant’s argument “that\nbecause the Customs officers were accompanied by a Louisiana State\nPoliceman, and were following an informant’s tip that a vessel in the ship\nchannel was thought to be carrying marijuana,” the Government could not rely\non the administrative search exception. United States v. Villamonte-Marquez,\n462 U.S. 579, 584 n.3 (1983).\n We have applied these principles to a search of an automobile salvage\nyard. United States v. Thomas, 973 F.2d 1152, 1155–56 (5th Cir. 1992). There,\nan investigator with the Texas Department of Public Safety tracked a vehicle\nto an auto salvage business and there conducted an inventory inspection under\nTexas statute. Id. at 1155. Even though the inventory inspection was\nprompted by suspicion of criminal conduct, the investigator still was entitled\nto use information gained during the inspection to obtain a search warrant for\nthe salvage-yard owner’s residence. Id. “Administrative searches conducted\n\n\n 19\n\n Case: 17-50518 Document: 00515018705 Page: 20 Date Filed: 07/02/2019\n\n\n\n No. 17-50518\npursuant to valid statutory schemes do not violate the Constitution simply\nbecause of the existence of a specific suspicion of wrongdoing.” Id. at 1155–56.\n Beck has similar analysis. As here, the administrative search in Beck\nwas initiated after a tip. Dental Board member Michael Pitcock “stated in his\ndeposition that information was forwarded to him alleging that Beck had\nordered unusually high volumes of controlled substances.” Beck, 204 F.3d at\n632. The Dental Board suspected Beck of violating criminal statutes, and a\nlaw enforcement officer accompanied the board agent in its inspection of the\ndental office. Id. The dentist argued that the search was conducted to uncover\ncriminal wrongdoing and thus was not conducted pursuant to a valid\nadministrative scheme. Id. at 638. We held that the suspicions of criminal\nwrongdoing “did not render the administrative search unreasonable,” citing\nVillamonte-Marquez and Thomas. Id. at 639.\n As to Dr. Zadeh, the DEA was closely involved with the Board’s\ninvestigation. Under Burger, though, we look to whether the search that\noccurred was under a scheme serving an administrative purpose. The Board’s\npurpose is demonstrated by the subsequent administrative action against\nDr. Zadeh. The search was not performed “solely to uncover evidence of\ncriminality.” See Burger, 482 U.S. at 698. Thus, the search was not pretextual.\n\n\nII. Declaratory Judgment\n Dr. Zadeh argues that the district court erred in abstaining from\ndeciding the declaratory judgment claims following Younger. Dr. Zadeh asked\nthe district court to make declaratory judgments on several laws implicating\nthe Board. The district court did not resolve any.\n “In Younger, the Supreme Court ‘instructed federal courts that the\nprinciples of equity, comity, and federalism in certain circumstances counsel\n 20\n\n Case: 17-50518 Document: 00515018705 Page: 21 Date Filed: 07/02/2019\n\n\n\n No. 17-50518\nabstention in deference to ongoing state proceedings.’” Wightman v. Tex.\nSupreme Court, 84 F.3d 188, 189 (5th Cir. 1996) (citations omitted). Following\nSupreme Court precedent, this court follows “a three-part test describing the\ncircumstances under which abstention [is] advised: (1) the dispute should\ninvolve an ‘ongoing state judicial proceeding;’ (2) the state must have an\nimportant interest in regulating the subject matter of the claim; and (3) there\nshould be an ‘adequate opportunity in the state proceedings to raise\nconstitutional challenges.’” Id. (citation omitted).\n The district court applied the reasoning of one of our unpublished cases,\nPerez v. Tex. Med. Bd., 556 F. App’x 341 (5th Cir. 2014). There, we held that\nYounger barred the plaintiffs’ suit seeking to enjoin the Board from pursuing\nany causes of action against them. Id. at 342–43. We agree with that panel’s\ndetermination that Texas had a strong interest in regulating the practice of\nmedicine, and the Perez plaintiffs could raise their constitutional challenges in\nthe state court because the law provided for judicial review of the\nadministrative decision. Id. at 342. Following Perez, the district court\nconcluded that Dr. Zadeh had an ongoing administrative action pending; the\nstate had a significant interest in regulating medicine in Texas; and Dr. Zadeh\ncould appeal his administrative action in state court and raise constitutional\nchallenges there. Accordingly, the district court abstained from adjudicating\nthe requests for declaratory relief.\n Dr. Zadeh claims Younger is inapplicable because the Board argued that\nthe lawsuit did not implicate the underlying investigation. Dr. Zadeh also\nargues that there will be no adequate opportunity in the state proceedings to\nraise any constitutional challenges. He claims that “[d]octors do not have the\npower to file an appeal concerning the findings of fact and conclusions of law\ncontained in a final decision (but the TMB does).”\n 21\n\n Case: 17-50518 Document: 00515018705 Page: 22 Date Filed: 07/02/2019\n\n\n\n No. 17-50518\n Dr. Zadeh was subject to an ongoing state administrative proceeding,\nand that qualifies as a judicial proceeding for this analysis. See Middlesex\nCnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982). As\nwe stated in Perez, Texas has a strong interest in regulating the practice of\nmedicine. Finally, despite plaintiffs’ contrary view, Texas law does permit\njudicial review by either party of an administrative decision. 1 “A person who\nhas exhausted all administrative remedies available within a state agency and\nwho is aggrieved by a final decision in a contested case is entitled to judicial\nreview under this chapter.” TEX. GOV’T CODE. § 2001.171.\n The district court did not abuse its discretion in abstaining from deciding\nthe declaratory judgment claims.\n\n\nIII. Director Robinson’s potential supervisory capacity liability\n The plaintiffs argue that Robinson should be held liable in her\nsupervisory capacity. “A supervisory official may be held liable under § 1983\nonly if (1) he affirmatively participates in the acts that cause the constitutional\ndeprivation, or (2) he implements unconstitutional policies that causally result\nin the constitutional injury.” Gates v. Tex. Dep’t of Protective and Regulatory\nServs., 537 F.3d 404, 435 (5th Cir. 2008). A failure to train claim requires that\nthe plaintiff show (1) the supervisor’s failure to train; (2) the failure to train\nresulted in the violation of the plaintiff’s rights; and (3) the failure to train\nshows deliberate indifference. Id. For deliberate indifference, “there must be\n‘actual or constructive notice’ ‘that a particular omission in their training\n\n\n\n The plaintiffs note that the administrative law judge in the SOAH proceeding\n 1\n\ndeclined to address the constitutional questions. Even so, all the law requires is that the\nissue have been preserved for the appeal to the state court. See Ohio Civil Rights Comm’n v.\nDayton Christian Schs., Inc., 477 U.S. 619, 629 (1986).\n 22\n\n Case: 17-50518 Document: 00515018705 Page: 23 Date Filed: 07/02/2019\n\n\n\n No. 17-50518\nprogram causes . . . employees to violate citizens’ constitutional rights’ and the\nactor nevertheless ‘choose[s] to retain that program.’” Porter v. Epps, 659 F.3d\n440, 447 (5th Cir. 2011) (citation omitted).\n The plaintiffs argue that Robinson improperly delegated her subpoena\nauthority to subordinates whose training she knew nothing about. Therefore,\nthe subpoena did not comply with Texas law because the Executive Director of\nthe Board is not permitted to delegate her subpoena authority. The district\ncourt did not determine whether the delegation was permissible. “In light of\nthe express regulatory authority for the delegation, the precedent set by her\npredecessors, and the sheer volume of subpoenas issued every year by the\nTMB,” Robinson’s actions did not amount to deliberate indifference.\n In Texas administrative law, a rule of statutory construction presumes\nthat where a statute grants specific authority to a designated public officer,\nthe legislature intended only that officer to have that authority. Lipsey v. Tex.\nDep’t of Health, 727 S.W.2d 61, 64 (Tex. App.—Austin 1987, writ ref’d n.r.e.).\nStill, Lipsey recognized “the authority to ‘subdelegate’ or transfer the assigned\nfunction may be implied and the presumption defeated owing to the nature of\nthe assigned function, the makeup of the agency involved, the duties assigned\nto it, the statutory framework, and perhaps other matters.” Id. at 65.\n In this case, a statute permits the Board to subpoena records. TEX. OCC.\nCODE. § 153.007. Section 153.007(b) permits the Board to delegate subpoena\nauthority “to the executive director or the secretary-treasurer of the board.”\nBy administrative rule, the executive director may “delegate any responsibility\nor authority to an employee of the board.” 22 TEX. ADMIN. CODE § 161.7(c).\n In resolving this issue, we start with the fact the rule articulated in\nLipsey is only a presumption. Even assuming that the plaintiffs could show\nthat Robinson failed to train her subordinates and that failure resulted in a\n 23\n\n Case: 17-50518 Document: 00515018705 Page: 24 Date Filed: 07/02/2019\n\n\n\n No. 17-50518\nconstitutional violation, Robinson was not deliberately indifferent in\ndelegating her subpoena authority in light of the fact she was acting pursuant\nto the regulations in the same way as her predecessors and the numerous\nsubpoenas issued each year. To the extent the plaintiffs seek to impose Section\n1983 liability on Kirby and Pease through the subdelegation argument, that\nlaw also was not clearly established.\n AFFIRMED.\n\n\n\n\n 24\n\n Case: 17-50518 Document: 00515018705 Page: 25 Date Filed: 07/02/2019\n\n\n\n No. 17-50518\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Doctor Joseph A. ZADEH; Jane Doe, Patient, Plaintiffs - Appellants v. Mari ROBINSON, in Her Individual Capacity and in Her Official Capacity; Sharon Pease, in Her Individual Capacity; Kara Kirby, in Her Individual Capacity, Defendants - Appellees\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-02\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-50518 Document: 00515018705 Page: 1 Date Filed: 07/02/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 17-50518 July 2, 2019\\n Lyle W. Cayce\\nDOCTOR JOSEPH A. ZADEH; JANE DOE, Patient, Clerk\\n\\n\\n Plaintiffs - Appellants\\n\\nv.\\n\\nMARI ROBINSON, in her individual capacity and in her official capacity;\\nSHARON PEASE, in her individual capacity; KARA KIRBY, in her\\nindividual capacity,\\n\\n Defendants – Appellees\\n\\n\\n\\n Appeals from the United States District Court\\n for the Western District of Texas\\n\\n\\n ON PETITION FOR REHEARING EN BANC\\n\\nBefore JOLLY, SOUTHWICK, and WILLETT, Circuit Judges.\\nLESLIE H. SOUTHWICK, Circuit Judge:\\n No member of the panel nor judge in regular active service requested\\nthat the court be polled on rehearing en banc. The petition for rehearing en\\nbanc is therefore DENIED. See FED. R. APP. P. and 5th Cir. R. 35. Treating\\nthe petition for rehearing en banc as a petition for panel rehearing, the petition\\nis GRANTED. We withdraw our prior opinion, Zadeh v. Robinson, 902 F.3d\\n483 (5th Cir. 2018), and substitute the following.\\n\\n Case: 17-50518 Document: 00515018705 Page: 2 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\n The Texas Medical Board executed an administrative subpoena on\\nDr. Joseph Zadeh’s medical office. Thereafter, Dr. Zadeh and one of his\\npatients sued several Board members under 42 U.S.C. § 1983, claiming that\\nthe Board’s actions violated the Fourth Amendment. The district court\\npartially granted the defendants’ motion to dismiss and later granted their\\nmotion for summary judgment rejecting all remaining claims. We AFFIRM.\\n\\n\\n FACTUAL AND PROCEDURAL BACKGROUND\\n Plaintiff Dr. Joseph Zadeh appeals the dismissal of his Section 1983\\nclaim against several members of the Texas Medical Board who he claims\\nviolated his constitutional rights through a warrantless search of his office and\\nmedical records. Dr. Zadeh, an internal medicine doctor, owns and operates a\\nmedical practice in Euless, Texas. One of his patients, Jane Doe, is also a\\nplaintiff-appellant in this case.\\n Dr. Zadeh was the subject of an administrative proceeding before the\\nState Office of Administrative Hearings (“SOAH”) for violations of the Board’s\\nregulations. The Drug Enforcement Agency (“DEA”) also was investigating\\nhim. Indeed, it appears the Board first learned about allegations against\\nDr. Zadeh when the DEA filed a complaint with the Board about his\\nprescribing practices in September 2013. The DEA investigator emailed a\\nrepresentative of the Board, stating, “I’m at a point in the criminal case that I\\nneed to interview Dr. Zadeh and review his patient files.” The Board then\\ninitiated an investigation.\\n As part of this investigation, Defendants Sharon Pease and Kara Kirby,\\nwho were investigators with the Board, served an administrative subpoena on\\nDr. Zadeh on October 22, 2013. The subpoena had the electronic signature of\\nDefendant Mari Robinson, who was the Executive Director of the Board. The\\n 2\\n\\n Case: 17-50518 Document: 00515018705 Page: 3 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nsubpoena was for the immediate production of the medical records of sixteen\\nof Dr. Zadeh’s patients. Two DEA agents who were investigating related\\ncriminal allegations accompanied Kirby and Pease.\\n The district court found the “facts surrounding the execution of the\\nsubpoena” to be “largely undisputed.” Dr. Zadeh was not present when the\\ninvestigators arrived. The subpoena was handed to the doctor’s assistant. The\\ninvestigators sat in the medical office waiting room to give the doctor time to\\nappear. While they waited, the assistant spoke on the phone with Dr. Zadeh,\\nhis lawyer, and his brother who also is a lawyer. The assistant testified that\\nafter these calls had occurred but no permission to proceed had been given, the\\ninvestigators told her they would suspend Dr. Zadeh’s license if the records\\nthey sought were not produced. The investigators admit something was said\\nthat was akin to a promise of some vague “disciplinary action.” What was said\\nat that point is at least unclear. The assistant eventually complied, taking the\\ndefendants into a conference room and delivering the requested records to\\nthem. Although most of their time was spent inside the public waiting area or\\nconference room, the investigators also approached the medical assistant to\\nask for help while she was in exam rooms and later in a storage room.\\n As a result of that search, Dr. Zadeh and his patient, Jane Doe, sued\\nRobinson, Pease, and Kirby in their individual capacities and Robinson in her\\nofficial capacity in the United States District Court for the Western District of\\nTexas. They alleged the defendants’ actions violated their Fourth Amendment,\\ndue process, and privacy rights. The plaintiffs sought monetary damages\\nunder 42 U.S.C. § 1983 as well as declaratory relief. The defendants moved to\\ndismiss the claims on these grounds: (1) the plaintiffs lacked standing; (2) the\\nYounger abstention doctrine barred the requests for declaratory relief; (3) the\\nclaim against Robinson in her official capacity was barred by the doctrine of\\n 3\\n\\n Case: 17-50518 Document: 00515018705 Page: 4 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nsovereign immunity; (4) the doctrine of qualified immunity applied to the\\nclaims against the defendants in their individual capacities.\\n In ruling on the motion to dismiss, the district court held Dr. Zadeh had\\nstanding to pursue declaratory relief, but Jane Doe did not. Nonetheless, the\\ndistrict court concluded that “the Younger abstention doctrine require[d] [it] to\\nabstain from adjudicating Plaintiff Zadeh’s claims for declaratory relief.” The\\ndistrict court also held that sovereign immunity barred the plaintiffs’ claims\\nfor monetary damages against Robinson in her official capacity. Finally, the\\ncourt concluded that the defendants were entitled to qualified immunity for\\nthe privacy and due process claims. The only part of the suit left, then, was\\nDr. Zadeh’s claim that the defendants violated his clearly established Fourth\\nAmendment rights during the search of his office.\\n The defendants moved for summary judgment on “whether Defendants\\nexceeded their statutory subpoena authority by searching and inspecting\\nPlaintiff’s office and records.” Although the plaintiffs alleged that the\\ninvestigators performed a thorough search of Dr. Zadeh’s office, the district\\ncourt found that the record did not support this allegation. Instead, the district\\ncourt determined that the “Defendants’ presence at Plaintiff’s office was solely\\nto execute the subpoena instanter.” The district court also held that Robinson\\nwas not liable as she neither affirmatively participated in the alleged search\\nnor implemented unconstitutional policies that caused the alleged\\nconstitutional deprivation. Further, there was “no evidence Defendants Pease\\nand Kirby inspected Plaintiff’s office or searched his records.” The plaintiffs\\ntimely appealed.\\n\\n\\n\\n\\n 4\\n\\n Case: 17-50518 Document: 00515018705 Page: 5 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\n DISCUSSION\\n The plaintiffs appeal both the order granting the motion to dismiss in\\npart and the order granting the motion for summary judgment. Although we\\nreview both de novo, a different legal standard applies to each:\\n In the former, the central issue is whether, in the light most\\n favorable to the plaintiff, the complaint states a valid claim for\\n relief. In the latter, we go beyond the pleadings to determine\\n whether there is no genuine issue as to any material fact and that\\n the movant is entitled to judgment as a matter of law.\\nSt. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 440 n.8 (5th Cir. 2000)\\n(citations omitted).\\n We first address the plaintiffs’ challenge to the district court’s grant of\\nqualified immunity, evaluating whether clearly established law prohibited the\\ndefendants’ conduct. Next, we discuss whether the district court erred in\\nabstaining from deciding the plaintiffs’ claims for declaratory judgment.\\nFinally, we analyze whether Robinson was liable in her supervisory capacity.\\n\\n\\nI. Grant of qualified immunity\\n “The doctrine of qualified immunity protects government officials from\\ncivil damages liability when their actions could reasonably have been believed\\nto be legal.” Morgan v. Swanson, 659 F.3d 359, 370–71 (5th Cir. 2011).\\nOfficials are entitled to qualified immunity “unless (1) they violated a federal\\nstatutory or constitutional right, and (2) the unlawfulness of their conduct was\\n‘clearly established at the time.’” District of Columbia v. Wesby, 138 S. Ct. 577,\\n589 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).\\n Using this framework, we analyze the plaintiffs’ arguments that clearly\\nestablished law prohibited the defendants’ execution of the subpoena\\ninstanter. The plaintiffs offer two theories for why the defendants’ conduct\\n\\n 5\\n\\n Case: 17-50518 Document: 00515018705 Page: 6 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nwas unconstitutional. First, they argue it was a warrantless search that did\\nnot satisfy the administrative exception. Second, they argue it was a\\npretextual search and thus unconstitutional.\\n\\n\\n a. Warrantless search\\n The plaintiffs argue the Board violated the Fourth Amendment when it\\ndemanded immediate compliance with its administrative subpoena. We have\\npreviously considered a challenge to a subpoena instanter executed by the\\nTexas Medical Board. See Cotropia v. Chapman, 721 F. App’x 354 (5th Cir.\\n2018). In that nonprecedential opinion, we held: “Absent consent, exigent\\ncircumstances, or the like, in order for an administrative search to be\\nconstitutional, the subject of the search must be afforded an opportunity to\\nobtain precompliance review before a neutral decisionmaker.” Id. at 358\\n(quoting City of Los Angeles v. Patel, 135 S. Ct. 2243, 2452 (2015)).\\n In that case, the physician at the center of a Board investigation pled\\nsufficient facts to overcome qualified immunity. Id. at 361. The doctor alleged\\nthat a Board member “violated the clearly established right to an opportunity\\nto obtain precompliance review of an administrative subpoena before a neutral\\ndecisionmaker” when he took documents from the physician’s office over\\nobjections from the office receptionist. Id. at 357. Relying on Supreme Court\\nprecedent, we held that it was clear at the time that “prior to compliance,\\nCotropia was entitled to an opportunity to obtain review of the administrative\\nsubpoena before a neutral decisionmaker.” Id. at 358 (citing See v. City of\\nSeattle, 387 U.S. 541, 545 (1967); Donovan v. Lone Steer, Inc., 464 U.S. 408,\\n415 (1984)). Similarly, the demand to turn over Dr. Zadeh’s medical records\\nimmediately did not provide an opportunity for precompliance review. We\\nagree, then, that a requirement of precompliance review in many, if not most,\\n 6\\n\\n Case: 17-50518 Document: 00515018705 Page: 7 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nadministrative searches had been clearly established by Supreme Court\\nprecedent prior to the search here.\\n The defendants acknowledge this law but maintain there was no\\nconstitutional violation because this search fell into an exception to the general\\nrule requiring precompliance review. We next examine that argument.\\n\\n\\n i. Closely regulated industry\\n No opportunity for precompliance review is needed for administrative\\nsearches of industries that “have such a history of government oversight that\\nno reasonable expectation of privacy” exists for individuals engaging in that\\nindustry. Marshall v. Barlow’s, Inc., 436 U.S. 307, 313 (1978). Even so,\\nwarrantless inspections in closely regulated industries must still satisfy three\\ncriteria: (1) a substantial government interest, (2) a regulatory scheme that\\nrequires warrantless searches to further the government interest, and (3) “a\\nconstitutionally adequate substitute for a warrant.” New York v. Burger, 482\\nU.S. 691, 702–03 (1987) (quoting Donovan v. Dewey, 452 U.S. 594, 603 (1981)).\\n Cotropia did not resolve whether the Board’s use of administrative\\nsubpoenas satisfied the Burger criteria because the issue was not raised until\\noral argument. Cotropia, 721 F. App’x at 360 & n.6. As a result, the panel’s\\nholding was expressly limited to concluding that the Board’s demand for\\nimmediate compliance with the subpoena did not satisfy the general\\nadministrative exception to the warrant requirement. The argument has\\ntimely been raised here, though. Thus, we must discuss whether the Burger\\nexception permitted the Board’s administrative subpoena and whether that\\nlaw was clearly established at the time of its execution.\\n To categorize industries under Burger, courts consider the history of\\nwarrantless searches in the industry, how extensive the regulatory scheme is,\\n 7\\n\\n Case: 17-50518 Document: 00515018705 Page: 8 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nwhether other states have similar schemes, and whether the industry would\\npose a threat to the public welfare if left unregulated. See Burger, 482 U.S. at\\n704; Patel, 135 S. Ct. at 2454. The defendants characterize the relevant\\nindustry in two different ways. We evaluate first whether the practice of\\nmedicine is a closely regulated industry and then whether the practice of\\nprescribing controlled substances is closely regulated.\\n Acknowledging that the medical profession is subject to close oversight,\\nthe district court emphasized the absence of a history of warrantless\\ninspections to conclude that the medical profession was not a closely regulated\\nindustry. Important to its conclusion was the confidential nature of the doctor-\\npatient relationship: “It strains credibility to suggest that doctors and their\\npatients have no reasonable expectation of privacy.” On appeal, the defendants\\nall but concede that there is not a lengthy history of warrantless searches.\\nThey instead emphasize the extensive regulatory scheme governing the\\npractice of medicine and the risk that the industry could pose to the public\\nwelfare.\\n There is no doubt that the medical profession is extensively regulated\\nand has licensure requirements. Satisfying the Burger doctrine requires more.\\nThe Supreme Court instructs “that the doctrine is essentially defined by ‘the\\npervasiveness and regularity of the federal regulation’ and the effect of such\\nregulation upon an owner’s expectation of privacy.” Burger, 482 U.S. at 701\\n(quoting Dewey, 452 U.S. at 605–06). Another key factor is “the duration of a\\nparticular regulatory scheme.” Id. (quoting Dewey, 452 U.S. at 606).\\n The Board cites several laws or regulations governing the behavior of\\ndoctors. Outside of citing Texas’s licensure requirement for physicians, the\\nregulations the Board cites do not apply to the entire medical profession.\\nInstead, they target the practice of prescribing controlled substances. As\\n 8\\n\\n Case: 17-50518 Document: 00515018705 Page: 9 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nexamples, the Board states that doctors must register with the DEA to\\nprescribe controlled substances, TEX. HEALTH & SAFETY CODE § 481.061; that\\nprescriptions of controlled substances are monitored by several law\\nenforcement agencies, id. §§ 481.067, 481.075, 481.076; and that pain\\nmanagement clinics must register as such, which allows the Board to inspect\\nthem from time to time, TEX. OCC. CODE §§ 168.101, 168.052; 37 Tex. Reg.\\n10079, 10079–80 (2012), adopted 38 Tex. Reg. 1876, 1876–77 (2013), amended\\n39 Tex. Reg. 297, 297–98 (2014) (former 22 TEX. ADMIN. CODE § 195.2); 35 Tex.\\nReg. 1924, 1925–26 (2010), adopted 35 Tex. Reg. 3281, 3281–82 (2010),\\namended 43 Tex. Reg. 768, 768–74 (2018) (former 22 TEX. ADMIN. CODE\\n§ 195.3). The Board also refers us to laws and regulations that similarly\\nregulate anesthesia. These, though, do not amount to pervasiveness and\\nregularity of regulation over the medical industry as a whole as Burger\\nrequires. Instead, only specific groups of doctors may have been put on notice\\nthat the Board may perform some inspections.\\n We also do not see in the medical profession an entrenched history of\\nwarrantless searches. Its absence is relevant, though not dispositive, to our\\nissue. Burger, 482 U.S. at 701. For example, when the Court held that the\\nliquor industry was closely regulated, it mentioned that English\\ncommissioners could inspect brewing houses on demand in the 1660s, and that\\nMassachusetts passed a similar law in 1692. Colonnade Catering Corp. v.\\nUnited States, 397 U.S. 72, 75 (1970). It then referred to a 1791 federal law\\nthat has continued in various forms, permitting federal officers to perform\\nwarrantless searches of distilleries and imposing an excise tax on distilled\\nliquor. Id. Because the focus there was “the liquor industry long subject to\\nclose supervision and inspection,” the Court concluded that the Fourth\\n\\n\\n 9\\n\\n Case: 17-50518 Document: 00515018705 Page: 10 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nAmendment did not prohibit the warrantless searches authorized by Congress.\\nId. at 77. Here, there is no such history.\\n In considering the reasonable expectation of privacy, we also consider\\nthe sensitive nature of medical records. The Ninth Circuit explained that “the\\ntheory behind the closely regulated industry exception is that persons\\nengaging in such industries, and persons present in those workplaces, have a\\ndiminished expectation of privacy.” Tucson Woman’s Clinic v. Eden, 379 F.3d\\n531, 550 (9th Cir. 2004). We agree with that court’s observation that in medical\\ncontexts, the expectation of privacy likely is heightened. Id.\\n Admittedly, federal regulations do exempt the Board from the privacy\\nrequirements of the Health Insurance Portability and Accountability Act\\n(“HIPAA”). 45 C.F.R. § 164.512. Further, the Board cites Texas laws providing\\nthat where the Board does obtain information, it is subject to confidentiality\\nrequirements. See TEX. OCC. CODE §§ 159.002; 159.003(a)(5); 164.007(c). That\\nHIPAA permits disclosure to the Board and that the regulations governing the\\nBoard continue to protect that information from disclosure does not mean that\\nthe Board is entitled to access to that information through an administrative\\nsearch without allowing an opportunity for precompliance review.\\n We conclude, then, that the medical industry as a whole is not a closely\\nregulated industry for purposes of Burger. Still, even if the medical profession\\nat large cannot be said to fall within these Burger factors, it is possible that a\\nsubset, such as those who prescribe controlled substances, would do so.\\nBecause the parties focus their analysis of whether there is a closely regulated\\nindustry on the medical profession as a whole and not on pain management\\nclinics, we assume only for purposes of our analysis today that pain\\nmanagement clinics are part of a closely regulated industry and that Dr. Zadeh\\nwas operating such a clinic even if his clinic was not certified as one. Such\\n 10\\n\\n Case: 17-50518 Document: 00515018705 Page: 11 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nassumptions are appropriate in this case because ultimately our resolution\\nturns on whether the relevant law was clearly established. At this point, we\\ncan at least say that the law was not clearly established whether pain\\nmanagement clinics are part of a closely regulated industry. The remaining\\nrelevant law, established with clarity or not, is analyzed below.\\n\\n\\n ii. Burger exception requirements\\n Even were we to accept the defendants’ argument that doctors\\nprescribing controlled substances are engaging in a closely regulated industry\\nwith less reasonable expectations of privacy, administrative searches of such\\nindustries still must satisfy the three Burger criteria. There is no meaningful\\ndispute in this case as to the first two factors, namely, that the State has a\\nsubstantial interest in regulating the prescription of controlled substances and\\nthat the inspection of a doctor’s records would aid the Government in\\nregulating the industry. We thus analyze only whether the statutory scheme\\nis a proper substitute for a search warrant. The Board relies on its authority\\nto issues subpoenas and to inspect pain management clinics. The principal\\nresponse from plaintiffs is that neither provides a constitutionally adequate\\nsubstitute for a warrant.\\n In order for a warrant substitute authorized by statute to be\\nconstitutionally adequate, “the regulatory statute must perform the two basic\\nfunctions of a warrant: it must advise the owner of the commercial premises\\nthat the search is being made pursuant to the law and has a properly defined\\nscope, and it must limit the discretion of the inspecting officers.” Burger, 482\\nU.S. at 703. The relevant statute provides: “The board may issue a subpoena\\nor a subpoena duces tecum to compel the attendance of a witness and the\\nproduction of books, records, and documents.” TEX. OCC. CODE. § 153.007(a).\\n 11\\n\\n Case: 17-50518 Document: 00515018705 Page: 12 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nThe Board argues that the statute, when considered with the following\\nregulation, limits the discretion of the officials. The regulation provides that\\nafter a “request by the board or board representatives, a licensee shall furnish\\nto the board copies of medical records or the original records within a\\nreasonable time period, as prescribed at the time of the request.” 22 TEX.\\nADMIN. CODE § 179.4(a). The regulation defines “reasonable time” as “fourteen\\ncalendar days or a shorter time if required by the urgency of the situation or\\nthe possibility that the records may be lost, damaged, or destroyed.” Id.\\n The district court held that a search using the Board’s subpoena\\nauthority did not satisfy the third factor of the Burger test as it was “purely\\ndiscretionary,” allowing the Board “to choose which doctors to subpoena and to\\ndo so at a frequency it determines.” To evaluate that holding, we consider the\\nlimits that do exist: only licensees are subject to the subpoena; only medical\\nrecords must be produced; and it is the Board or its representatives who will\\nbe asking for the records. As the district court stated, though, there is no\\nidentifiable limit on whose records can properly be subpoenaed.\\n As to inspections of pain management clinics, the Board argues that\\nsome limits to its authority are set by the statute permitting it to inspect pain\\nmanagement clinics. Specifically, the statute allows it to examine “the\\ndocuments of a physician practicing at the clinic, as necessary to ensure\\ncompliance with this chapter.” TEX. OCC. CODE. § 168.052(a). Providing more\\nspecific guidance, the regulation in effect at the time provided:\\n The board may conduct inspections to enforce these rules, including\\n inspections of a pain management clinic and of documents of a\\n physician’s practice. The board may contract with another state agency\\n or qualified person to conduct these inspections.\\n\\n\\n\\n\\n 12\\n\\n Case: 17-50518 Document: 00515018705 Page: 13 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\n35 Tex. Reg. 1925, 1925–26 (2010), adopted 35 Tex. Reg. 3281, 3281–82 (2010),\\namended 43 Tex. Reg. 768, 768–74 (2018) (former 22 TEX. ADMIN. CODE\\n§ 195.3).\\n The district court found this inspection authority, like the subpoena\\nauthority, to be “purely discretionary.” The governing criteria for an inspection\\nis that the target be a pain management clinic, that the Board performs the\\ninspection, and that the purpose for the search be to determine compliance\\nwith pain management rules. We agree with the district court, though, that\\nthese requirements suffered from the same fatal Burger flaw as the subpoena\\nauthority: they did not limit how the clinics inspected are chosen.\\n In summary, there are insufficient limits on the discretion of the Board\\nto satisfy the Burger requirements, whether considering the medical profession\\nin general or as to pain management clinics. What is left is the question of\\nwhether the law on these points was clearly established and, regardless,\\nwhether the search was invalid as pretextual.\\n\\n\\n iii. Clearly established law for qualified immunity\\n To summarize, we have concluded there was a violation of Dr. Zadeh’s\\nconstitutional rights. That is true even with our twin assumptions that pain\\nmanagement clinics are part of a closely regulated industry and that Dr. Zadeh\\noperated a pain management clinic. Nonetheless, the defendants are entitled\\nto qualified immunity unless the constitutional requirements they violated\\nwere clearly established at the time of their actions. Reichle, 566 U.S. at 664.\\nWe hold that it was clearly established at the time of this search that the\\nmedical profession as a whole is not a closely regulated industry, meaning that\\ngovernmental agents violate the Constitution when they search clinics that are\\nnot pain management clinics without providing an opportunity for\\n 13\\n\\n Case: 17-50518 Document: 00515018705 Page: 14 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nprecompliance review. We also hold, even assuming that pain management\\nclinics are part of a closely regulated industry, that on-demand searches of\\nthose clinics violate the constitution when the statutory scheme authorizing\\nthe search fails to provide sufficient constraints on the discretion of the\\ninspecting officers. We need to analyze, though, whether that last statement\\nof law was clearly established when this search occurred.\\n Our analysis of the clarity of relevant law is objective, meaning it does\\nnot focus on the specific defendants’ knowledge. “The touchstone of this\\ninquiry is whether a reasonable person would have believed that his conduct\\nconformed to the constitutional standard in light of the information available\\nto him and the clearly established law.” Goodson v. City of Corpus Christi, 202\\nF.3d 730, 736 (5th Cir. 2000). “[E]ven law enforcement officials who\\n‘reasonably but mistakenly [commit a constitutional violation]’ are entitled to\\nimmunity.” Glenn v. City of Tyler, 242 F.3d 307, 312–13 (5th Cir. 2001)\\n(quoting Goodson, 202 F.3d at 736). For the law to be clearly established, there\\nmust be a close congruence of the facts in the precedent and those in the case\\nbefore us. Wesby, 138 S. Ct. at 589–90. “The precedent must be clear enough\\nthat every reasonable official would interpret it to establish the particular rule\\nthe plaintiffs seek to apply.” Id. at 590.\\n Defendants rely on one of our precedents that reviewed an\\nadministrative search of a dentist’s office by agents of the Texas State Board\\nof Dental Examiners, accompanied by Department of Public Safety officials.\\nBeck v. Tex. State Bd. of Dental Exam’rs, 204 F.3d 629, 632 (5th Cir. 2000).\\nDentist Beck was a target because of complaints filed against him for\\nprescribing controlled substances. Id. We concluded that the search did not\\nviolate the plaintiff’s clearly established rights. Id. at 638–39. We applied the\\nBurger exception and determined there was a significant state interest in\\n 14\\n\\n Case: 17-50518 Document: 00515018705 Page: 15 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nregulating dentists’ use of controlled substances; the search was conducted\\npursuant to two regulatory schemes; and there was an adequate substitute for\\na warrant where the statute permitted the official to conduct inspections\\nduring “reasonable times” after “stating his purpose” and presenting his\\ncredentials to the owner. Id. at 638–39. In light of Beck, the Board argues that\\nreasonable investigators could have believed the Burger exception permitted\\nthe execution of the subpoena as they too were investigating prescriptions of\\ncontrolled substances within the medical industry.\\n The plaintiffs insist that Beck is “patently distinguishable” for the same\\nreason argued in the separate opinion here. The clarity of any possible\\ndistinction, though, must be viewed through the lens that the law, including a\\ndistinction, must be “sufficiently clear that every reasonable official would\\nunderstand that what he is doing is unlawful” at that time. Wesby, 138 S. Ct.\\nat 589 (quotation marks omitted). That means “existing law must have placed\\nthe constitutionality of the officer’s conduct ‘beyond debate.” Id. Perhaps most\\nrelevant, the “legal principle [must] clearly prohibit the officer’s conduct in the\\nparticular circumstances before him. The rule’s contours must be so well\\ndefined that it is ‘clear to a reasonable officer that his conduct was unlawful in\\nthe situation he confronted.’” Id. at 590 (emphasis added).\\n The claimed sufficient distinction here is that the regulations and\\nstatutes under which the investigators in Beck acted explicitly permitted\\ninspections without prior notice. See Beck, 204 F.3d at 639. The Beck court\\ndiscussed that point at the end of the opinion, as it addressed several questions\\nregarding whether what occurred was a valid administrative search of a closely\\nregulated industry. Id. The final subject the court discussed was that one of\\nthe statutes under which the inspection was conducted did not require that\\nprior notice be given. Id. (quoting Section 5.01(c) of the Texas Controlled\\n 15\\n\\n Case: 17-50518 Document: 00515018705 Page: 16 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nSubstances Act.) That is no small distinction, and we conclude today that\\nabsent similar statutory or perhaps regulatory authority that dispenses with\\nprior notice, a search such as occurred here cannot be conducted without prior\\nnotice. The issue for us, though, is whether that law was clearly established\\nat the time of the search we are reviewing today.\\n As we already stated, the right is not clearly established unless it is\\nbeyond debate using an objective test. We have discussed the intricacies of\\nNew York v. Burger, which permit warrantless searches when they satisfy a\\nthree-factor test. Our Beck decision held that the search there was of a closely\\nregulated industry, and therefore went through the three Burger factors. The\\ndiscussion of the specific statutory authorization for no-notice inspections was\\nto show that the third Burger factor was satisfied, which is that an adequate\\nsubstitute for a warrant existed. We did not say in Beck that the only sufficient\\nsubstitute under Burger was a statute authorizing no-notice searches. We did\\nhold that “under these circumstances, Beck does not show a violation of a\\nclearly established constitutional right.” Beck, 204 F.3d at 639.\\n Instead of clearly establishing the principle that prior notice of a\\nregulatory search must be given unless the authorizing statute explicitly\\nannounces it is unnecessary, Beck applied the general Burger principle to the\\nfacts of that case that a warrant substitute authorized by a “regulatory statute\\nmust perform the two basic functions of a warrant: it must advise the owner of\\nthe commercial premises that the search is being made pursuant to the law\\nand has a properly defined scope, and it must limit the discretion of the\\ninspecting officers.” Burger, 482 U.S. at 703. In the Beck situation, that factor\\nwas satisfied with the statutory language already discussed. We cannot see,\\nthough, that every reasonable official prior to conducting a search under the\\ncircumstances of this case would know this Burger factor was not satisfied. We\\n 16\\n\\n Case: 17-50518 Document: 00515018705 Page: 17 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nthink some, even many, reasonable officers would believe under the third\\nBurger factor that the owner of the premises was charged with knowledge that\\na statute authorized the search, and the officers would reasonably believe the\\nscope of the search and the discretion of the officials was validly limited. We\\nhave held that the statute fails this standard, but we do not hold that all\\nreasonable officers would have known that, until now.\\n Therefore, although Beck does not control the constitutionality of the\\nBoard’s actions in this case, it does weigh in favor of the defendants’ receiving\\nqualified immunity. We find more guidance from cases where a statute did not\\nclearly limit the official’s discretion in selecting who would be subject to an\\nadministrative search. In one, we held that the statute provided a\\nconstitutionally adequate substitute for a warrant where the statute provided:\\n The licensing agency shall make or cause to be made inspections\\n relative to compliance with the laws and regulations governing the\\n licensure of child care facilities. Such inspections shall be made at\\n least once a year but additional inspections may be made as often\\n as deemed necessary by the licensing agency.\\n\\nSee Ellis v. Miss. Dep’t of Health, 344 F. App’x 43 (5th Cir. 2009) (citing MISS.\\nCODE. ANN. § 43-20-15). Though that opinion is not precedential, we agree\\nwith its reasoning.\\n We also upheld an administrative search where, despite limits on the\\nconduct of an officer after a traffic stop, there were not clear limits on an\\nofficer’s discretion as to whom to stop. See United States v. Fort, 248 F.3d 475,\\n482 (5th Cir. 2001). Because we have not so far required there to be a clear\\nlimit on determining whom officials select for an administrative search, the\\ndefendants reasonably could have believed that the administrative scheme\\nhere provided a constitutionally adequate substitute for a warrant.\\n\\n\\n 17\\n\\n Case: 17-50518 Document: 00515018705 Page: 18 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\n Finally, the plaintiffs argue that even if qualified immunity might apply\\nto defendants who conducted a proper search, the defendants did not follow the\\nstatutory scheme. Therefore, they assert, caselaw in which the legal\\nrequirements for the search were followed is inapplicable. The claims of\\noverstepping authority, though, are minor. First, while the medical assistant\\nwas waiting for Dr. Zadeh to appear, there is evidence one of the investigators\\napproached the assistant at her desk, then followed her into two exam rooms.\\nWhile in one of the rooms, the investigator asked if controlled substances were\\nkept in the room. Second, there is evidence this same investigator also\\napproached the assistant while the latter was in a storage room and asked if\\nthe investigators could use the medical office’s copy machine. The district court\\nsaid there was no evidence the investigator ever looked at any files or went\\nsomewhere in the medical office without the assistant. Finally, as soon as the\\ninvestigators were asked to leave the office, they did so. We agree with the\\ndistrict court that there is “no support in the record” to sustain the allegation\\nthe investigators did a “thorough search and inspection.” The factual basis for\\ndeviations from search protocols is insubstantial.\\n In conclusion, the unlawfulness of the defendants’ conduct was not\\nclearly established at the time of the search.\\n\\n\\n b. Pretextual searches\\n The plaintiffs also argue that the search was a pretext for uncovering\\nevidence of criminal wrongdoing, not a valid administrative search. According\\nto the plaintiffs, the DEA brought Dr. Zadeh’s possible misdeeds before the\\nMedical Board. A DEA agent then was present during the search. To finish\\nthe story, though, the Medical Board proceeded against Dr. Zadeh. Before\\nthere was a full hearing on the merits, the Board entered an agreed order. In\\n 18\\n\\n Case: 17-50518 Document: 00515018705 Page: 19 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nthe order, the panel found that Dr. Zadeh was operating a pain management\\nclinic without registering it. There is nothing in this record indicating whether\\nthe DEA’s investigation resulted in a criminal prosecution or any other action.\\n “Even under a valid inspection regime, the administrative search cannot\\nbe pretextual.” Club Retro, LLC v. Hilton, 568 F.3d 181, 197 (5th Cir. 2009).\\nIt is incorrect, though, to use the label “pretext” simply because of an overlap\\nbetween an administrative search and a criminal search. The Burger Court\\nremarked that “a State can address a major social problem both by way of an\\nadministrative scheme and through penal sanctions.” Burger, 482 U.S. at 712.\\nTo determine whether the search there was constitutional, the Court looked to\\nwhether the administrative scheme really “authorize[d] searches undertaken\\nsolely to uncover evidence of criminality.” Id.\\n Similarly, the Supreme Court dismissed a defendant’s argument “that\\nbecause the Customs officers were accompanied by a Louisiana State\\nPoliceman, and were following an informant’s tip that a vessel in the ship\\nchannel was thought to be carrying marijuana,” the Government could not rely\\non the administrative search exception. United States v. Villamonte-Marquez,\\n462 U.S. 579, 584 n.3 (1983).\\n We have applied these principles to a search of an automobile salvage\\nyard. United States v. Thomas, 973 F.2d 1152, 1155–56 (5th Cir. 1992). There,\\nan investigator with the Texas Department of Public Safety tracked a vehicle\\nto an auto salvage business and there conducted an inventory inspection under\\nTexas statute. Id. at 1155. Even though the inventory inspection was\\nprompted by suspicion of criminal conduct, the investigator still was entitled\\nto use information gained during the inspection to obtain a search warrant for\\nthe salvage-yard owner’s residence. Id. “Administrative searches conducted\\n\\n\\n 19\\n\\n Case: 17-50518 Document: 00515018705 Page: 20 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\npursuant to valid statutory schemes do not violate the Constitution simply\\nbecause of the existence of a specific suspicion of wrongdoing.” Id. at 1155–56.\\n Beck has similar analysis. As here, the administrative search in Beck\\nwas initiated after a tip. Dental Board member Michael Pitcock “stated in his\\ndeposition that information was forwarded to him alleging that Beck had\\nordered unusually high volumes of controlled substances.” Beck, 204 F.3d at\\n632. The Dental Board suspected Beck of violating criminal statutes, and a\\nlaw enforcement officer accompanied the board agent in its inspection of the\\ndental office. Id. The dentist argued that the search was conducted to uncover\\ncriminal wrongdoing and thus was not conducted pursuant to a valid\\nadministrative scheme. Id. at 638. We held that the suspicions of criminal\\nwrongdoing “did not render the administrative search unreasonable,” citing\\nVillamonte-Marquez and Thomas. Id. at 639.\\n As to Dr. Zadeh, the DEA was closely involved with the Board’s\\ninvestigation. Under Burger, though, we look to whether the search that\\noccurred was under a scheme serving an administrative purpose. The Board’s\\npurpose is demonstrated by the subsequent administrative action against\\nDr. Zadeh. The search was not performed “solely to uncover evidence of\\ncriminality.” See Burger, 482 U.S. at 698. Thus, the search was not pretextual.\\n\\n\\nII. Declaratory Judgment\\n Dr. Zadeh argues that the district court erred in abstaining from\\ndeciding the declaratory judgment claims following Younger. Dr. Zadeh asked\\nthe district court to make declaratory judgments on several laws implicating\\nthe Board. The district court did not resolve any.\\n “In Younger, the Supreme Court ‘instructed federal courts that the\\nprinciples of equity, comity, and federalism in certain circumstances counsel\\n 20\\n\\n Case: 17-50518 Document: 00515018705 Page: 21 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nabstention in deference to ongoing state proceedings.’” Wightman v. Tex.\\nSupreme Court, 84 F.3d 188, 189 (5th Cir. 1996) (citations omitted). Following\\nSupreme Court precedent, this court follows “a three-part test describing the\\ncircumstances under which abstention [is] advised: (1) the dispute should\\ninvolve an ‘ongoing state judicial proceeding;’ (2) the state must have an\\nimportant interest in regulating the subject matter of the claim; and (3) there\\nshould be an ‘adequate opportunity in the state proceedings to raise\\nconstitutional challenges.’” Id. (citation omitted).\\n The district court applied the reasoning of one of our unpublished cases,\\nPerez v. Tex. Med. Bd., 556 F. App’x 341 (5th Cir. 2014). There, we held that\\nYounger barred the plaintiffs’ suit seeking to enjoin the Board from pursuing\\nany causes of action against them. Id. at 342–43. We agree with that panel’s\\ndetermination that Texas had a strong interest in regulating the practice of\\nmedicine, and the Perez plaintiffs could raise their constitutional challenges in\\nthe state court because the law provided for judicial review of the\\nadministrative decision. Id. at 342. Following Perez, the district court\\nconcluded that Dr. Zadeh had an ongoing administrative action pending; the\\nstate had a significant interest in regulating medicine in Texas; and Dr. Zadeh\\ncould appeal his administrative action in state court and raise constitutional\\nchallenges there. Accordingly, the district court abstained from adjudicating\\nthe requests for declaratory relief.\\n Dr. Zadeh claims Younger is inapplicable because the Board argued that\\nthe lawsuit did not implicate the underlying investigation. Dr. Zadeh also\\nargues that there will be no adequate opportunity in the state proceedings to\\nraise any constitutional challenges. He claims that “[d]octors do not have the\\npower to file an appeal concerning the findings of fact and conclusions of law\\ncontained in a final decision (but the TMB does).”\\n 21\\n\\n Case: 17-50518 Document: 00515018705 Page: 22 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\n Dr. Zadeh was subject to an ongoing state administrative proceeding,\\nand that qualifies as a judicial proceeding for this analysis. See Middlesex\\nCnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982). As\\nwe stated in Perez, Texas has a strong interest in regulating the practice of\\nmedicine. Finally, despite plaintiffs’ contrary view, Texas law does permit\\njudicial review by either party of an administrative decision. 1 “A person who\\nhas exhausted all administrative remedies available within a state agency and\\nwho is aggrieved by a final decision in a contested case is entitled to judicial\\nreview under this chapter.” TEX. GOV’T CODE. § 2001.171.\\n The district court did not abuse its discretion in abstaining from deciding\\nthe declaratory judgment claims.\\n\\n\\nIII. Director Robinson’s potential supervisory capacity liability\\n The plaintiffs argue that Robinson should be held liable in her\\nsupervisory capacity. “A supervisory official may be held liable under § 1983\\nonly if (1) he affirmatively participates in the acts that cause the constitutional\\ndeprivation, or (2) he implements unconstitutional policies that causally result\\nin the constitutional injury.” Gates v. Tex. Dep’t of Protective and Regulatory\\nServs., 537 F.3d 404, 435 (5th Cir. 2008). A failure to train claim requires that\\nthe plaintiff show (1) the supervisor’s failure to train; (2) the failure to train\\nresulted in the violation of the plaintiff’s rights; and (3) the failure to train\\nshows deliberate indifference. Id. For deliberate indifference, “there must be\\n‘actual or constructive notice’ ‘that a particular omission in their training\\n\\n\\n\\n The plaintiffs note that the administrative law judge in the SOAH proceeding\\n 1\\n\\ndeclined to address the constitutional questions. Even so, all the law requires is that the\\nissue have been preserved for the appeal to the state court. See Ohio Civil Rights Comm’n v.\\nDayton Christian Schs., Inc., 477 U.S. 619, 629 (1986).\\n 22\\n\\n Case: 17-50518 Document: 00515018705 Page: 23 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nprogram causes . . . employees to violate citizens’ constitutional rights’ and the\\nactor nevertheless ‘choose[s] to retain that program.’” Porter v. Epps, 659 F.3d\\n440, 447 (5th Cir. 2011) (citation omitted).\\n The plaintiffs argue that Robinson improperly delegated her subpoena\\nauthority to subordinates whose training she knew nothing about. Therefore,\\nthe subpoena did not comply with Texas law because the Executive Director of\\nthe Board is not permitted to delegate her subpoena authority. The district\\ncourt did not determine whether the delegation was permissible. “In light of\\nthe express regulatory authority for the delegation, the precedent set by her\\npredecessors, and the sheer volume of subpoenas issued every year by the\\nTMB,” Robinson’s actions did not amount to deliberate indifference.\\n In Texas administrative law, a rule of statutory construction presumes\\nthat where a statute grants specific authority to a designated public officer,\\nthe legislature intended only that officer to have that authority. Lipsey v. Tex.\\nDep’t of Health, 727 S.W.2d 61, 64 (Tex. App.—Austin 1987, writ ref’d n.r.e.).\\nStill, Lipsey recognized “the authority to ‘subdelegate’ or transfer the assigned\\nfunction may be implied and the presumption defeated owing to the nature of\\nthe assigned function, the makeup of the agency involved, the duties assigned\\nto it, the statutory framework, and perhaps other matters.” Id. at 65.\\n In this case, a statute permits the Board to subpoena records. TEX. OCC.\\nCODE. § 153.007. Section 153.007(b) permits the Board to delegate subpoena\\nauthority “to the executive director or the secretary-treasurer of the board.”\\nBy administrative rule, the executive director may “delegate any responsibility\\nor authority to an employee of the board.” 22 TEX. ADMIN. CODE § 161.7(c).\\n In resolving this issue, we start with the fact the rule articulated in\\nLipsey is only a presumption. Even assuming that the plaintiffs could show\\nthat Robinson failed to train her subordinates and that failure resulted in a\\n 23\\n\\n Case: 17-50518 Document: 00515018705 Page: 24 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\nconstitutional violation, Robinson was not deliberately indifferent in\\ndelegating her subpoena authority in light of the fact she was acting pursuant\\nto the regulations in the same way as her predecessors and the numerous\\nsubpoenas issued each year. To the extent the plaintiffs seek to impose Section\\n1983 liability on Kirby and Pease through the subdelegation argument, that\\nlaw also was not clearly established.\\n AFFIRMED.\\n\\n\\n\\n\\n 24\\n\\n Case: 17-50518 Document: 00515018705 Page: 25 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-50518\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2976,"cells":{"id":{"kind":"number","value":4636209,"string":"4,636,209"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee v. Rafael CORTEZ-GONZALEZ, Defendant - Appellant"},"name_abbreviation":{"kind":"string","value":"United States v. Rafael Cortez-Gonzalez"},"decision_date":{"kind":"string","value":"2019-07-02"},"docket_number":{"kind":"string","value":"17-41204"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Owen, Southwick, Higginson\", \"parties\": \"\", \"opinions\": [{\"author\": \"LESLIE H. SOUTHWICK, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-41204 Document: 00515020221 Page: 1 Date Filed: 07/02/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 17-41204 FILED\\n July 2, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nRAFAEL CORTEZ-GONZALEZ,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore OWEN, SOUTHWICK, and HIGGINSON, Circuit Judges.\\nLESLIE H. SOUTHWICK, Circuit Judge:\\n Rafael Cortez-Gonzalez pled guilty to one count of transporting illegal\\naliens. He contends the district court erred by applying a four-level\\nenhancement under Sentencing Guideline Section 2L1.1(b)(3)(B) when one of\\nthe enhancement’s predicate offenses could not be counted for criminal history\\npoints under Section 4A1.2(e). The district court did not err. We AFFIRM.\\n\\n\\n FACTUAL AND PROCEDURAL HISTORY\\n On June 17, 2017, a Remote Video Surveillance System operator with\\nthe United States Bureau of Customs and Border Protection (CBP) using\\ninfrared technology observed ten individuals exit a white Ford F-250 pickup\\n\\f Case: 17-41204 Document: 00515020221 Page: 2 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-41204\\ntruck near a ranch less than a mile south of the Sarita checkpoint around\\nmidnight. The truck then proceeded south on Highway 77 with CBP officers\\nfollowing. Shortly after midnight, the CBP officers attempted to stop the truck\\nusing their vehicle’s lights and sirens.\\n Instead of pulling over, the driver of the truck, Raymond Teran-Alfaro,\\nsped away. This led to a pursuit for about 25 miles, reaching speeds of close to\\n100 miles per hour. Eventually the truck left the paved road, drove over some\\nrailroad tracks, and became immobilized. The driver tried to escape on foot\\nbut was arrested a few minutes later about 150 yards from the truck.\\n Meanwhile, other CBP officers searched for the ten individuals who had\\nearlier exited the truck at the ranch. This search led to another foot pursuit,\\nwhere CBP officers were able to arrest eight of the ten. Cortez-Gonzalez was\\none of the eight arrested. CBP later discovered Cortez-Gonzalez was\\ntransporting undocumented aliens in the bed of the truck to a predesignated\\nlocation, then operating as a brush guide in an effort to bring them into the\\nUnited States.\\n In July 2017, a grand jury indicted Cortez-Gonzalez on one count of\\nconspiracy to transport illegal aliens in violation of 8 U.S.C.\\n§ 1324(a)(1)(A)(v)(I), and three counts of transporting illegal aliens in violation\\nof 8 U.S.C. § 1324(a)(1)(A)(ii), (v)(II). Cortez-Gonzalez pled guilty to one of the\\ncounts of transporting illegal aliens. The court granted the Government’s\\nmotion to dismiss the other three counts.\\n The presentence investigation report (PSR) applied a base offense level\\nof 12. Among other enhancements, the PSR recommended the court apply a\\nfour-level enhancement under Section 2L1.1(b)(3)(B). Section 2L1.1(b)(3)\\nprovides for a four-level enhancement “[i]f the defendant committed any part\\nof the instant offense after sustaining . . . two (or more) convictions for felony\\nimmigration and naturalization offenses, each such conviction arising out of a\\n 2\\n\\f Case: 17-41204 Document: 00515020221 Page: 3 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-41204\\nseparate prosecution.” One of Cortez-Gonzalez’s felony convictions providing\\nthe basis for the enhancement was from 2003, the other from 2017.\\nSection 4A1.2(e), though, provides that certain older convictions are not used\\nto compute criminal history points. The 2003 conviction was such a conviction\\nnot assigned criminal history points.\\n At his sentencing hearing, Cortez-Gonzalez objected to the four-level\\nenhancement under Section 2L1.1(b)(3)(B), describing the 2003 offense as\\n“really stale.” He did not object to the other underlying conviction that, if it\\nhad been the only one, would have led to a two-level enhancement. U.S.S.G.\\n§ 2L1.1(b)(3)(A). The court overruled his objection without explanation,\\napplied the four-level enhancement, and sentenced Cortez-Gonzalez at the\\nhigh end of the Guidelines range to 37 months in prison.\\n Cortez-Gonzalez appealed. Originally, his counsel filed a brief pursuant\\nto Anders v. California, 386 U.S. 738 (1967), to support a motion to withdraw\\nas counsel, having concluded there was no nonfrivolous issue for an appeal. In\\na footnote, counsel conceded that the court correctly overruled the contention\\nthat the 2003 offense was too old to count under the Section 2L1.1(b)(3)\\nenhancement. Nevertheless, an order from our court found the Anders brief\\nunpersuasive on the Section 2L1.1(b)(3) contention and ordered either a\\nsupplemental brief or for counsel to retract the motion to withdraw and file a\\nbrief on the merits. Cortez-Gonzalez’s counsel chose to withdraw the motion\\nand proceed in the appeal.\\n\\n\\n DISCUSSION\\n The sole issue is whether the district court procedurally erred in using\\nthe 2003 conviction for the Section 2L1.1(b)(3)(B) enhancement when the\\nconviction was ineligible for criminal history points under Section 4A1.2(e).\\n\\n\\n 3\\n\\f Case: 17-41204 Document: 00515020221 Page: 4 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-41204\\n “We review a district court’s interpretation or application of the\\nGuidelines de novo and its factual findings for clear error.” United States v.\\nNash, 729 F.3d 400, 403 (5th Cir. 2013). Our review of whether a past offense\\ncan serve as a predicate offense under the Section 2L1.1(b)(3)(B) enhancement\\nis de novo. Cf. id.\\n When “interpreting the Sentencing Guidelines, we apply the ordinary\\nrules of statutory construction.” United States v. Serfass, 684 F.3d 548, 551\\n(5th Cir. 2012). “When the language of the guideline is unambiguous, the plain\\nmeaning of that language is controlling unless it creates an absurd result.” Id.\\nWe apply the rule of lenity “if that language is ambiguous.” Id.\\n Cortez-Gonzalez asserts the district court miscalculated his Guidelines\\nrange because of the Section 2L1.1(b)(3)(B) enhancement. In other words, he\\ncontends the court committed procedural error. Gall v. United States, 552 U.S.\\n38, 51 (2007) (noting “significant procedural error” includes “failing to calculate\\n(or improperly calculating) the Guidelines range”).\\n Cortez-Gonzalez contends that because “the 10-month sentence that he\\nreceived for the 2003 alien-transporting offense was too stale to receive\\ncriminal-history points and therefore was ‘not counted,’ . . . it was erroneous\\nfor the district court to use that prior conviction as a basis for [the]\\nenhancement” at issue. As support, Cortez-Gonzalez relies on the commentary\\nfor Section 2L1.1. Note number two is his focus: “Prior felony conviction(s)\\nresulting in an adjustment under subsection (b)(3) are also counted for\\npurposes of determining criminal history points pursuant to Chapter Four,\\nPart A (Criminal History).” U.S.S.G. § 2L1.1 cmt. n.2. Under this argument,\\nif the prior conviction did not result in criminal history points, it cannot be a\\npredicate offense for the enhancement. Cortez-Gonzalez also argues that we\\nshould apply the rule of lenity because the Guidelines are ambiguous.\\n\\n\\n 4\\n\\f Case: 17-41204 Document: 00515020221 Page: 5 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-41204\\n These arguments are unpersuasive. First, the plain text of the\\nSentencing Guideline does not limit the predicate offense for the enhancement\\nin Section 2L1.1(b)(3) to offenses that could count for criminal history points.\\nThat Guideline states:\\n If the defendant committed any part of the instant offense after\\n sustaining (A) a conviction for a felony immigration and\\n naturalization offense, increase by 2 levels; or (B) two (or more)\\n convictions for felony immigration and naturalization offenses,\\n each such conviction arising out of a separate prosecution, increase\\n by 4 levels.\\n\\nU.S.S.G. § 2L1.1(b)(3). There is no stated temporal limitation on predicate\\noffenses that invoke the enhancement. We find no absurdity in the lack of such\\na limitation. That obligates us “to enforce [the language] according to its\\nterms.” Lamie v. United States Trustee, 540 U.S. 526, 534 (2004) (citations\\nomitted).\\n Second, note two in the commentary to Section 2L1.1 does not compel a\\ndifferent result. As a rule, Sentencing Guideline “[c]ommentary contained\\nin . . . application notes is ‘authoritative unless it violates the Constitution or\\na federal statute, or is inconsistent with, or a plainly erroneous reading of, that\\nguideline.’” United States v. Miller, 607 F.3d 144, 148 n.2 (5th Cir. 2010)\\n(quoting United States v. Johnston, 559 F.3d 292, 295 n.4 (5th Cir. 2009)).\\n Here, the note states: “Prior felony conviction(s) resulting in an\\nadjustment under subsection (b)(3) are also counted for purposes of\\ndetermining criminal history points pursuant to Chapter Four, Part A\\n(Criminal History).” U.S.S.G. § 2L1.1 cmt. n.2. Cortez-Gonzalez argues this\\nnote “presumably” supports the inverse idea that “when a sentence for a prior\\nfelony conviction was too stale to receive criminal-history points” under\\nSentencing Guideline Section 4A1.2(e)(3), “that prior felony conviction could\\n\\n\\n\\n 5\\n\\f Case: 17-41204 Document: 00515020221 Page: 6 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-41204\\nnot be [a] basis for enhancement under U.S.S.G. § 2L1.1(b)(3).” That, though,\\nis not what the note says, and we will not re-write it.\\n Notably, the comment does not mandate that if the prior felony\\nconviction is ineligible for criminal history points, it cannot serve as the\\npredicate offense for the enhancement. The United States Sentencing\\nCommission could have included such a limitation if it so intended. See United\\nStates v. Camacho-Ibarquen, 410 F.3d 1307, 1313 (11th Cir. 2005) (noting the\\nSentencing Commission was capable of “explicitly limit[ing] the application of\\ncertain convictions”). For example, Section 2L1.2 cmt. n.3 (which is not at\\nissue in this appeal) states the following:\\n Criminal History Points.—For purposes of applying\\n subsections (b)(1), (b)(2), and (b)(3), use only those convictions that\\n receive criminal history points under §4A1.1(a), (b), or (c). In\\n addition, for purposes of subsections (b)(1)(B), (b)(2)(E), and\\n (b)(3)(E), use only those convictions that are counted separately\\n under §4A1.2(a)(2).\\n\\n A conviction taken into account under subsection (b)(1),\\n (b)(2), or (b)(3) is not excluded from consideration of whether that\\n conviction receives criminal history points pursuant to Chapter\\n Four, Part A (Criminal History).\\n\\nU.S.S.G. § 2L1.2 cmt. n.3 (italicized emphasis added). This is the type of\\nlimitation Cortez-Gonzalez urges our court to read into Section 2L1.1(b)(3).\\nThe Sentencing Commission did not make such a specific limitation, and we\\nare not free to impose that limitation judicially.\\n We also examine the original statutory text instructing the Sentencing\\nCommission to include the Section 2L1.1(b)(3) language. The Illegal\\nImmigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”)\\ninstructed the Sentencing Commission to\\n impose an appropriate sentencing enhancement upon an offender\\n with 1 prior felony conviction arising out of a separate and prior\\n\\n 6\\n\\f Case: 17-41204 Document: 00515020221 Page: 7 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-41204\\n prosecution for an offense that involved the same or similar\\n underlying conduct as the current offense, to be applied in addition\\n to any sentencing enhancement that would otherwise apply\\n pursuant to the calculation of the defendant’s criminal history\\n category.\\nPub. L. No. 104-208, § 203(e)(2)(C), 110 Stat. 3009-565 to 567 (codified at 28\\nU.S.C. § 994 note); id. at § 203(e)(2)(D) (providing for a further enhancement\\nif there are “2 or more” such “prior felony convictions”); see also U.S.S.G.\\nAPPENDIX B at 65–66 (citing text from IIRITA in conjunction with the 2016\\nSentencing Guidelines). The statute provides that the enhancement will apply\\n“in addition to any sentencing enhancement that would otherwise apply\\npursuant to the calculation of the defendant’s criminal history category.” Id.\\nat § 203(e)(2)(C), (D) (emphasis added). The Sentencing Guidelines reflected\\nthese new instructions in the 1997 manual and maintained them in the 2016\\nmanual. Compare U.S.S.G. § 2L1.1(b)(3) & cmt. n.5 (1997) with U.S.S.G.\\n§ 2L1.1(b)(3) & cmt. n.2 (2016). Having determined “the language of the\\nGuidelines is unambiguous” and not absurd, our inquiry is concluded. United\\nStates v. Rabanal, 508 F.3d 741, 743 (5th Cir. 2007).\\n That lack of ambiguity also defeats Cortez-Gonzalez’s argument that the\\nrule of lenity should apply. See United States v. Bustillos-Pena, 612 F.3d 863,\\n868–69 (5th Cir. 2010) (noting “we apply the rule of lenity to [the Sentencing\\nGuidelines] when we find that they are ambiguous” and have already\\nunsuccessfully attempted to resolve that ambiguity through the canons of\\nconstruction).\\n AFFIRMED.\\n\\n\\n\\n\\n 7\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4413462/\", \"author_raw\": \"LESLIE H. SOUTHWICK, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"OWEN"},"judge2":{"kind":"string","value":"SOUTHWICK"},"judge3":{"kind":"string","value":"HIGGINSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4636209/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Rafael CORTEZ-GONZALEZ, Defendant - Appellant\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-02\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-41204 Document: 00515020221 Page: 1 Date Filed: 07/02/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n\n No. 17-41204 FILED\n July 2, 2019\n Lyle W. Cayce\nUNITED STATES OF AMERICA, Clerk\n\n Plaintiff - Appellee\n\nv.\n\nRAFAEL CORTEZ-GONZALEZ,\n\n Defendant - Appellant\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore OWEN, SOUTHWICK, and HIGGINSON, Circuit Judges.\nLESLIE H. SOUTHWICK, Circuit Judge:\n Rafael Cortez-Gonzalez pled guilty to one count of transporting illegal\naliens. He contends the district court erred by applying a four-level\nenhancement under Sentencing Guideline Section 2L1.1(b)(3)(B) when one of\nthe enhancement’s predicate offenses could not be counted for criminal history\npoints under Section 4A1.2(e). The district court did not err. We AFFIRM.\n\n\n FACTUAL AND PROCEDURAL HISTORY\n On June 17, 2017, a Remote Video Surveillance System operator with\nthe United States Bureau of Customs and Border Protection (CBP) using\ninfrared technology observed ten individuals exit a white Ford F-250 pickup\n\f Case: 17-41204 Document: 00515020221 Page: 2 Date Filed: 07/02/2019\n\n\n\n No. 17-41204\ntruck near a ranch less than a mile south of the Sarita checkpoint around\nmidnight. The truck then proceeded south on Highway 77 with CBP officers\nfollowing. Shortly after midnight, the CBP officers attempted to stop the truck\nusing their vehicle’s lights and sirens.\n Instead of pulling over, the driver of the truck, Raymond Teran-Alfaro,\nsped away. This led to a pursuit for about 25 miles, reaching speeds of close to\n100 miles per hour. Eventually the truck left the paved road, drove over some\nrailroad tracks, and became immobilized. The driver tried to escape on foot\nbut was arrested a few minutes later about 150 yards from the truck.\n Meanwhile, other CBP officers searched for the ten individuals who had\nearlier exited the truck at the ranch. This search led to another foot pursuit,\nwhere CBP officers were able to arrest eight of the ten. Cortez-Gonzalez was\none of the eight arrested. CBP later discovered Cortez-Gonzalez was\ntransporting undocumented aliens in the bed of the truck to a predesignated\nlocation, then operating as a brush guide in an effort to bring them into the\nUnited States.\n In July 2017, a grand jury indicted Cortez-Gonzalez on one count of\nconspiracy to transport illegal aliens in violation of 8 U.S.C.\n§ 1324(a)(1)(A)(v)(I), and three counts of transporting illegal aliens in violation\nof 8 U.S.C. § 1324(a)(1)(A)(ii), (v)(II). Cortez-Gonzalez pled guilty to one of the\ncounts of transporting illegal aliens. The court granted the Government’s\nmotion to dismiss the other three counts.\n The presentence investigation report (PSR) applied a base offense level\nof 12. Among other enhancements, the PSR recommended the court apply a\nfour-level enhancement under Section 2L1.1(b)(3)(B). Section 2L1.1(b)(3)\nprovides for a four-level enhancement “[i]f the defendant committed any part\nof the instant offense after sustaining . . . two (or more) convictions for felony\nimmigration and naturalization offenses, each such conviction arising out of a\n 2\n\f Case: 17-41204 Document: 00515020221 Page: 3 Date Filed: 07/02/2019\n\n\n\n No. 17-41204\nseparate prosecution.” One of Cortez-Gonzalez’s felony convictions providing\nthe basis for the enhancement was from 2003, the other from 2017.\nSection 4A1.2(e), though, provides that certain older convictions are not used\nto compute criminal history points. The 2003 conviction was such a conviction\nnot assigned criminal history points.\n At his sentencing hearing, Cortez-Gonzalez objected to the four-level\nenhancement under Section 2L1.1(b)(3)(B), describing the 2003 offense as\n“really stale.” He did not object to the other underlying conviction that, if it\nhad been the only one, would have led to a two-level enhancement. U.S.S.G.\n§ 2L1.1(b)(3)(A). The court overruled his objection without explanation,\napplied the four-level enhancement, and sentenced Cortez-Gonzalez at the\nhigh end of the Guidelines range to 37 months in prison.\n Cortez-Gonzalez appealed. Originally, his counsel filed a brief pursuant\nto Anders v. California, 386 U.S. 738 (1967), to support a motion to withdraw\nas counsel, having concluded there was no nonfrivolous issue for an appeal. In\na footnote, counsel conceded that the court correctly overruled the contention\nthat the 2003 offense was too old to count under the Section 2L1.1(b)(3)\nenhancement. Nevertheless, an order from our court found the Anders brief\nunpersuasive on the Section 2L1.1(b)(3) contention and ordered either a\nsupplemental brief or for counsel to retract the motion to withdraw and file a\nbrief on the merits. Cortez-Gonzalez’s counsel chose to withdraw the motion\nand proceed in the appeal.\n\n\n DISCUSSION\n The sole issue is whether the district court procedurally erred in using\nthe 2003 conviction for the Section 2L1.1(b)(3)(B) enhancement when the\nconviction was ineligible for criminal history points under Section 4A1.2(e).\n\n\n 3\n\f Case: 17-41204 Document: 00515020221 Page: 4 Date Filed: 07/02/2019\n\n\n\n No. 17-41204\n “We review a district court’s interpretation or application of the\nGuidelines de novo and its factual findings for clear error.” United States v.\nNash, 729 F.3d 400, 403 (5th Cir. 2013). Our review of whether a past offense\ncan serve as a predicate offense under the Section 2L1.1(b)(3)(B) enhancement\nis de novo. Cf. id.\n When “interpreting the Sentencing Guidelines, we apply the ordinary\nrules of statutory construction.” United States v. Serfass, 684 F.3d 548, 551\n(5th Cir. 2012). “When the language of the guideline is unambiguous, the plain\nmeaning of that language is controlling unless it creates an absurd result.” Id.\nWe apply the rule of lenity “if that language is ambiguous.” Id.\n Cortez-Gonzalez asserts the district court miscalculated his Guidelines\nrange because of the Section 2L1.1(b)(3)(B) enhancement. In other words, he\ncontends the court committed procedural error. Gall v. United States, 552 U.S.\n38, 51 (2007) (noting “significant procedural error” includes “failing to calculate\n(or improperly calculating) the Guidelines range”).\n Cortez-Gonzalez contends that because “the 10-month sentence that he\nreceived for the 2003 alien-transporting offense was too stale to receive\ncriminal-history points and therefore was ‘not counted,’ . . . it was erroneous\nfor the district court to use that prior conviction as a basis for [the]\nenhancement” at issue. As support, Cortez-Gonzalez relies on the commentary\nfor Section 2L1.1. Note number two is his focus: “Prior felony conviction(s)\nresulting in an adjustment under subsection (b)(3) are also counted for\npurposes of determining criminal history points pursuant to Chapter Four,\nPart A (Criminal History).” U.S.S.G. § 2L1.1 cmt. n.2. Under this argument,\nif the prior conviction did not result in criminal history points, it cannot be a\npredicate offense for the enhancement. Cortez-Gonzalez also argues that we\nshould apply the rule of lenity because the Guidelines are ambiguous.\n\n\n 4\n\f Case: 17-41204 Document: 00515020221 Page: 5 Date Filed: 07/02/2019\n\n\n\n No. 17-41204\n These arguments are unpersuasive. First, the plain text of the\nSentencing Guideline does not limit the predicate offense for the enhancement\nin Section 2L1.1(b)(3) to offenses that could count for criminal history points.\nThat Guideline states:\n If the defendant committed any part of the instant offense after\n sustaining (A) a conviction for a felony immigration and\n naturalization offense, increase by 2 levels; or (B) two (or more)\n convictions for felony immigration and naturalization offenses,\n each such conviction arising out of a separate prosecution, increase\n by 4 levels.\n\nU.S.S.G. § 2L1.1(b)(3). There is no stated temporal limitation on predicate\noffenses that invoke the enhancement. We find no absurdity in the lack of such\na limitation. That obligates us “to enforce [the language] according to its\nterms.” Lamie v. United States Trustee, 540 U.S. 526, 534 (2004) (citations\nomitted).\n Second, note two in the commentary to Section 2L1.1 does not compel a\ndifferent result. As a rule, Sentencing Guideline “[c]ommentary contained\nin . . . application notes is ‘authoritative unless it violates the Constitution or\na federal statute, or is inconsistent with, or a plainly erroneous reading of, that\nguideline.’” United States v. Miller, 607 F.3d 144, 148 n.2 (5th Cir. 2010)\n(quoting United States v. Johnston, 559 F.3d 292, 295 n.4 (5th Cir. 2009)).\n Here, the note states: “Prior felony conviction(s) resulting in an\nadjustment under subsection (b)(3) are also counted for purposes of\ndetermining criminal history points pursuant to Chapter Four, Part A\n(Criminal History).” U.S.S.G. § 2L1.1 cmt. n.2. Cortez-Gonzalez argues this\nnote “presumably” supports the inverse idea that “when a sentence for a prior\nfelony conviction was too stale to receive criminal-history points” under\nSentencing Guideline Section 4A1.2(e)(3), “that prior felony conviction could\n\n\n\n 5\n\f Case: 17-41204 Document: 00515020221 Page: 6 Date Filed: 07/02/2019\n\n\n\n No. 17-41204\nnot be [a] basis for enhancement under U.S.S.G. § 2L1.1(b)(3).” That, though,\nis not what the note says, and we will not re-write it.\n Notably, the comment does not mandate that if the prior felony\nconviction is ineligible for criminal history points, it cannot serve as the\npredicate offense for the enhancement. The United States Sentencing\nCommission could have included such a limitation if it so intended. See United\nStates v. Camacho-Ibarquen, 410 F.3d 1307, 1313 (11th Cir. 2005) (noting the\nSentencing Commission was capable of “explicitly limit[ing] the application of\ncertain convictions”). For example, Section 2L1.2 cmt. n.3 (which is not at\nissue in this appeal) states the following:\n Criminal History Points.—For purposes of applying\n subsections (b)(1), (b)(2), and (b)(3), use only those convictions that\n receive criminal history points under §4A1.1(a), (b), or (c). In\n addition, for purposes of subsections (b)(1)(B), (b)(2)(E), and\n (b)(3)(E), use only those convictions that are counted separately\n under §4A1.2(a)(2).\n\n A conviction taken into account under subsection (b)(1),\n (b)(2), or (b)(3) is not excluded from consideration of whether that\n conviction receives criminal history points pursuant to Chapter\n Four, Part A (Criminal History).\n\nU.S.S.G. § 2L1.2 cmt. n.3 (italicized emphasis added). This is the type of\nlimitation Cortez-Gonzalez urges our court to read into Section 2L1.1(b)(3).\nThe Sentencing Commission did not make such a specific limitation, and we\nare not free to impose that limitation judicially.\n We also examine the original statutory text instructing the Sentencing\nCommission to include the Section 2L1.1(b)(3) language. The Illegal\nImmigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”)\ninstructed the Sentencing Commission to\n impose an appropriate sentencing enhancement upon an offender\n with 1 prior felony conviction arising out of a separate and prior\n\n 6\n\f Case: 17-41204 Document: 00515020221 Page: 7 Date Filed: 07/02/2019\n\n\n\n No. 17-41204\n prosecution for an offense that involved the same or similar\n underlying conduct as the current offense, to be applied in addition\n to any sentencing enhancement that would otherwise apply\n pursuant to the calculation of the defendant’s criminal history\n category.\nPub. L. No. 104-208, § 203(e)(2)(C), 110 Stat. 3009-565 to 567 (codified at 28\nU.S.C. § 994 note); id. at § 203(e)(2)(D) (providing for a further enhancement\nif there are “2 or more” such “prior felony convictions”); see also U.S.S.G.\nAPPENDIX B at 65–66 (citing text from IIRITA in conjunction with the 2016\nSentencing Guidelines). The statute provides that the enhancement will apply\n“in addition to any sentencing enhancement that would otherwise apply\npursuant to the calculation of the defendant’s criminal history category.” Id.\nat § 203(e)(2)(C), (D) (emphasis added). The Sentencing Guidelines reflected\nthese new instructions in the 1997 manual and maintained them in the 2016\nmanual. Compare U.S.S.G. § 2L1.1(b)(3) & cmt. n.5 (1997) with U.S.S.G.\n§ 2L1.1(b)(3) & cmt. n.2 (2016). Having determined “the language of the\nGuidelines is unambiguous” and not absurd, our inquiry is concluded. United\nStates v. Rabanal, 508 F.3d 741, 743 (5th Cir. 2007).\n That lack of ambiguity also defeats Cortez-Gonzalez’s argument that the\nrule of lenity should apply. See United States v. Bustillos-Pena, 612 F.3d 863,\n868–69 (5th Cir. 2010) (noting “we apply the rule of lenity to [the Sentencing\nGuidelines] when we find that they are ambiguous” and have already\nunsuccessfully attempted to resolve that ambiguity through the canons of\nconstruction).\n AFFIRMED.\n\n\n\n\n 7\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Rafael CORTEZ-GONZALEZ, Defendant - Appellant\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-02\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-41204 Document: 00515020221 Page: 1 Date Filed: 07/02/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 17-41204 FILED\\n July 2, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nRAFAEL CORTEZ-GONZALEZ,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore OWEN, SOUTHWICK, and HIGGINSON, Circuit Judges.\\nLESLIE H. SOUTHWICK, Circuit Judge:\\n Rafael Cortez-Gonzalez pled guilty to one count of transporting illegal\\naliens. He contends the district court erred by applying a four-level\\nenhancement under Sentencing Guideline Section 2L1.1(b)(3)(B) when one of\\nthe enhancement’s predicate offenses could not be counted for criminal history\\npoints under Section 4A1.2(e). The district court did not err. We AFFIRM.\\n\\n\\n FACTUAL AND PROCEDURAL HISTORY\\n On June 17, 2017, a Remote Video Surveillance System operator with\\nthe United States Bureau of Customs and Border Protection (CBP) using\\ninfrared technology observed ten individuals exit a white Ford F-250 pickup\\n\\f Case: 17-41204 Document: 00515020221 Page: 2 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-41204\\ntruck near a ranch less than a mile south of the Sarita checkpoint around\\nmidnight. The truck then proceeded south on Highway 77 with CBP officers\\nfollowing. Shortly after midnight, the CBP officers attempted to stop the truck\\nusing their vehicle’s lights and sirens.\\n Instead of pulling over, the driver of the truck, Raymond Teran-Alfaro,\\nsped away. This led to a pursuit for about 25 miles, reaching speeds of close to\\n100 miles per hour. Eventually the truck left the paved road, drove over some\\nrailroad tracks, and became immobilized. The driver tried to escape on foot\\nbut was arrested a few minutes later about 150 yards from the truck.\\n Meanwhile, other CBP officers searched for the ten individuals who had\\nearlier exited the truck at the ranch. This search led to another foot pursuit,\\nwhere CBP officers were able to arrest eight of the ten. Cortez-Gonzalez was\\none of the eight arrested. CBP later discovered Cortez-Gonzalez was\\ntransporting undocumented aliens in the bed of the truck to a predesignated\\nlocation, then operating as a brush guide in an effort to bring them into the\\nUnited States.\\n In July 2017, a grand jury indicted Cortez-Gonzalez on one count of\\nconspiracy to transport illegal aliens in violation of 8 U.S.C.\\n§ 1324(a)(1)(A)(v)(I), and three counts of transporting illegal aliens in violation\\nof 8 U.S.C. § 1324(a)(1)(A)(ii), (v)(II). Cortez-Gonzalez pled guilty to one of the\\ncounts of transporting illegal aliens. The court granted the Government’s\\nmotion to dismiss the other three counts.\\n The presentence investigation report (PSR) applied a base offense level\\nof 12. Among other enhancements, the PSR recommended the court apply a\\nfour-level enhancement under Section 2L1.1(b)(3)(B). Section 2L1.1(b)(3)\\nprovides for a four-level enhancement “[i]f the defendant committed any part\\nof the instant offense after sustaining . . . two (or more) convictions for felony\\nimmigration and naturalization offenses, each such conviction arising out of a\\n 2\\n\\f Case: 17-41204 Document: 00515020221 Page: 3 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-41204\\nseparate prosecution.” One of Cortez-Gonzalez’s felony convictions providing\\nthe basis for the enhancement was from 2003, the other from 2017.\\nSection 4A1.2(e), though, provides that certain older convictions are not used\\nto compute criminal history points. The 2003 conviction was such a conviction\\nnot assigned criminal history points.\\n At his sentencing hearing, Cortez-Gonzalez objected to the four-level\\nenhancement under Section 2L1.1(b)(3)(B), describing the 2003 offense as\\n“really stale.” He did not object to the other underlying conviction that, if it\\nhad been the only one, would have led to a two-level enhancement. U.S.S.G.\\n§ 2L1.1(b)(3)(A). The court overruled his objection without explanation,\\napplied the four-level enhancement, and sentenced Cortez-Gonzalez at the\\nhigh end of the Guidelines range to 37 months in prison.\\n Cortez-Gonzalez appealed. Originally, his counsel filed a brief pursuant\\nto Anders v. California, 386 U.S. 738 (1967), to support a motion to withdraw\\nas counsel, having concluded there was no nonfrivolous issue for an appeal. In\\na footnote, counsel conceded that the court correctly overruled the contention\\nthat the 2003 offense was too old to count under the Section 2L1.1(b)(3)\\nenhancement. Nevertheless, an order from our court found the Anders brief\\nunpersuasive on the Section 2L1.1(b)(3) contention and ordered either a\\nsupplemental brief or for counsel to retract the motion to withdraw and file a\\nbrief on the merits. Cortez-Gonzalez’s counsel chose to withdraw the motion\\nand proceed in the appeal.\\n\\n\\n DISCUSSION\\n The sole issue is whether the district court procedurally erred in using\\nthe 2003 conviction for the Section 2L1.1(b)(3)(B) enhancement when the\\nconviction was ineligible for criminal history points under Section 4A1.2(e).\\n\\n\\n 3\\n\\f Case: 17-41204 Document: 00515020221 Page: 4 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-41204\\n “We review a district court’s interpretation or application of the\\nGuidelines de novo and its factual findings for clear error.” United States v.\\nNash, 729 F.3d 400, 403 (5th Cir. 2013). Our review of whether a past offense\\ncan serve as a predicate offense under the Section 2L1.1(b)(3)(B) enhancement\\nis de novo. Cf. id.\\n When “interpreting the Sentencing Guidelines, we apply the ordinary\\nrules of statutory construction.” United States v. Serfass, 684 F.3d 548, 551\\n(5th Cir. 2012). “When the language of the guideline is unambiguous, the plain\\nmeaning of that language is controlling unless it creates an absurd result.” Id.\\nWe apply the rule of lenity “if that language is ambiguous.” Id.\\n Cortez-Gonzalez asserts the district court miscalculated his Guidelines\\nrange because of the Section 2L1.1(b)(3)(B) enhancement. In other words, he\\ncontends the court committed procedural error. Gall v. United States, 552 U.S.\\n38, 51 (2007) (noting “significant procedural error” includes “failing to calculate\\n(or improperly calculating) the Guidelines range”).\\n Cortez-Gonzalez contends that because “the 10-month sentence that he\\nreceived for the 2003 alien-transporting offense was too stale to receive\\ncriminal-history points and therefore was ‘not counted,’ . . . it was erroneous\\nfor the district court to use that prior conviction as a basis for [the]\\nenhancement” at issue. As support, Cortez-Gonzalez relies on the commentary\\nfor Section 2L1.1. Note number two is his focus: “Prior felony conviction(s)\\nresulting in an adjustment under subsection (b)(3) are also counted for\\npurposes of determining criminal history points pursuant to Chapter Four,\\nPart A (Criminal History).” U.S.S.G. § 2L1.1 cmt. n.2. Under this argument,\\nif the prior conviction did not result in criminal history points, it cannot be a\\npredicate offense for the enhancement. Cortez-Gonzalez also argues that we\\nshould apply the rule of lenity because the Guidelines are ambiguous.\\n\\n\\n 4\\n\\f Case: 17-41204 Document: 00515020221 Page: 5 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-41204\\n These arguments are unpersuasive. First, the plain text of the\\nSentencing Guideline does not limit the predicate offense for the enhancement\\nin Section 2L1.1(b)(3) to offenses that could count for criminal history points.\\nThat Guideline states:\\n If the defendant committed any part of the instant offense after\\n sustaining (A) a conviction for a felony immigration and\\n naturalization offense, increase by 2 levels; or (B) two (or more)\\n convictions for felony immigration and naturalization offenses,\\n each such conviction arising out of a separate prosecution, increase\\n by 4 levels.\\n\\nU.S.S.G. § 2L1.1(b)(3). There is no stated temporal limitation on predicate\\noffenses that invoke the enhancement. We find no absurdity in the lack of such\\na limitation. That obligates us “to enforce [the language] according to its\\nterms.” Lamie v. United States Trustee, 540 U.S. 526, 534 (2004) (citations\\nomitted).\\n Second, note two in the commentary to Section 2L1.1 does not compel a\\ndifferent result. As a rule, Sentencing Guideline “[c]ommentary contained\\nin . . . application notes is ‘authoritative unless it violates the Constitution or\\na federal statute, or is inconsistent with, or a plainly erroneous reading of, that\\nguideline.’” United States v. Miller, 607 F.3d 144, 148 n.2 (5th Cir. 2010)\\n(quoting United States v. Johnston, 559 F.3d 292, 295 n.4 (5th Cir. 2009)).\\n Here, the note states: “Prior felony conviction(s) resulting in an\\nadjustment under subsection (b)(3) are also counted for purposes of\\ndetermining criminal history points pursuant to Chapter Four, Part A\\n(Criminal History).” U.S.S.G. § 2L1.1 cmt. n.2. Cortez-Gonzalez argues this\\nnote “presumably” supports the inverse idea that “when a sentence for a prior\\nfelony conviction was too stale to receive criminal-history points” under\\nSentencing Guideline Section 4A1.2(e)(3), “that prior felony conviction could\\n\\n\\n\\n 5\\n\\f Case: 17-41204 Document: 00515020221 Page: 6 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-41204\\nnot be [a] basis for enhancement under U.S.S.G. § 2L1.1(b)(3).” That, though,\\nis not what the note says, and we will not re-write it.\\n Notably, the comment does not mandate that if the prior felony\\nconviction is ineligible for criminal history points, it cannot serve as the\\npredicate offense for the enhancement. The United States Sentencing\\nCommission could have included such a limitation if it so intended. See United\\nStates v. Camacho-Ibarquen, 410 F.3d 1307, 1313 (11th Cir. 2005) (noting the\\nSentencing Commission was capable of “explicitly limit[ing] the application of\\ncertain convictions”). For example, Section 2L1.2 cmt. n.3 (which is not at\\nissue in this appeal) states the following:\\n Criminal History Points.—For purposes of applying\\n subsections (b)(1), (b)(2), and (b)(3), use only those convictions that\\n receive criminal history points under §4A1.1(a), (b), or (c). In\\n addition, for purposes of subsections (b)(1)(B), (b)(2)(E), and\\n (b)(3)(E), use only those convictions that are counted separately\\n under §4A1.2(a)(2).\\n\\n A conviction taken into account under subsection (b)(1),\\n (b)(2), or (b)(3) is not excluded from consideration of whether that\\n conviction receives criminal history points pursuant to Chapter\\n Four, Part A (Criminal History).\\n\\nU.S.S.G. § 2L1.2 cmt. n.3 (italicized emphasis added). This is the type of\\nlimitation Cortez-Gonzalez urges our court to read into Section 2L1.1(b)(3).\\nThe Sentencing Commission did not make such a specific limitation, and we\\nare not free to impose that limitation judicially.\\n We also examine the original statutory text instructing the Sentencing\\nCommission to include the Section 2L1.1(b)(3) language. The Illegal\\nImmigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”)\\ninstructed the Sentencing Commission to\\n impose an appropriate sentencing enhancement upon an offender\\n with 1 prior felony conviction arising out of a separate and prior\\n\\n 6\\n\\f Case: 17-41204 Document: 00515020221 Page: 7 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-41204\\n prosecution for an offense that involved the same or similar\\n underlying conduct as the current offense, to be applied in addition\\n to any sentencing enhancement that would otherwise apply\\n pursuant to the calculation of the defendant’s criminal history\\n category.\\nPub. L. No. 104-208, § 203(e)(2)(C), 110 Stat. 3009-565 to 567 (codified at 28\\nU.S.C. § 994 note); id. at § 203(e)(2)(D) (providing for a further enhancement\\nif there are “2 or more” such “prior felony convictions”); see also U.S.S.G.\\nAPPENDIX B at 65–66 (citing text from IIRITA in conjunction with the 2016\\nSentencing Guidelines). The statute provides that the enhancement will apply\\n“in addition to any sentencing enhancement that would otherwise apply\\npursuant to the calculation of the defendant’s criminal history category.” Id.\\nat § 203(e)(2)(C), (D) (emphasis added). The Sentencing Guidelines reflected\\nthese new instructions in the 1997 manual and maintained them in the 2016\\nmanual. Compare U.S.S.G. § 2L1.1(b)(3) & cmt. n.5 (1997) with U.S.S.G.\\n§ 2L1.1(b)(3) & cmt. n.2 (2016). Having determined “the language of the\\nGuidelines is unambiguous” and not absurd, our inquiry is concluded. United\\nStates v. Rabanal, 508 F.3d 741, 743 (5th Cir. 2007).\\n That lack of ambiguity also defeats Cortez-Gonzalez’s argument that the\\nrule of lenity should apply. See United States v. Bustillos-Pena, 612 F.3d 863,\\n868–69 (5th Cir. 2010) (noting “we apply the rule of lenity to [the Sentencing\\nGuidelines] when we find that they are ambiguous” and have already\\nunsuccessfully attempted to resolve that ambiguity through the canons of\\nconstruction).\\n AFFIRMED.\\n\\n\\n\\n\\n 7\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2977,"cells":{"id":{"kind":"number","value":4636213,"string":"4,636,213"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee v. Coy JONES, Defendant-Appellant United States of America, Plaintiff-Appellee v. Coy Marshall Jones, Defendant-Appellant"},"name_abbreviation":{"kind":"string","value":"United States v. Coy Jones"},"decision_date":{"kind":"string","value":"2019-07-02"},"docket_number":{"kind":"string","value":"18-50086; Consolidated With Case 18-50088"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Higginbotham, Smith, Higginson\", \"parties\": \"\", \"opinions\": [{\"author\": \"STEPHEN A. HIGGINSON, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-50086 Document: 00515019836 Page: 1 Date Filed: 07/02/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n United States Court of Appeals\\n\\n No. 18-50086\\n Fifth Circuit\\n\\n FILED\\n July 2, 2019\\n\\nUNITED STATES OF AMERICA, Lyle W. Cayce\\n Clerk\\n Plaintiff - Appellee\\n\\nv.\\n\\nCOY JONES,\\n\\n Defendant - Appellant\\n-------- ----------------------\\nConsolidated With\\nCase No. 18-50088\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee\\nv.\\n\\nCOY MARSHALL JONES,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.\\nSTEPHEN A. HIGGINSON, Circuit Judge:\\n Upon sua sponte panel rehearing, we withdraw our prior opinion, United\\nStates v. Jones, 924 F.3d 219 (5th Cir. 2019), and substitute the following:\\n\\f Case: 18-50086 Document: 00515019836 Page: 2 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\n Coy Jones was convicted by a jury of possessing and conspiring to possess\\nwith the intent to distribute methamphetamine, possessing a firearm as a\\nconvicted felon, and possessing a firearm in furtherance of a drug trafficking\\ncrime. We hold that Jones’s rights under the Confrontation Clause were\\nviolated when a law enforcement officer testified that he knew Jones had\\nreceived a large amount of methamphetamine because of what the officer was\\ntold by a confidential informant. This error was not invited by the defense and\\nwas not harmless. We therefore vacate Jones’s convictions and the related\\nrevocation of his supervised release and remand for further proceedings.\\n I.\\n A.\\n Jones was arrested in the course of an investigation into suspected large-\\nscale methamphetamine distribution by Eredy Cruz-Ortiz. Acting on tips from\\na confidential informant, law enforcement officers observed Cruz-Ortiz meet\\nwith various individuals in Austin-area parking lots between August 2016 and\\nMay 2017. On August 23, 2016, for instance, Cruz-Ortiz met with Imran\\nRehman to sell him methamphetamine. Rehman later testified that he met\\nwith Cruz-Ortiz about 25 to 30 times to purchase methamphetamine. 1 Another\\nindividual, Julio Rogel Diaz, met with Cruz-Ortiz in a parking lot on\\nSeptember 23, 2016, and was subsequently stopped by law enforcement with\\nabout 700 grams of methamphetamine.\\n Law enforcement officers also observed Jones meet with Cruz-Ortiz on\\nseveral occasions. On both September 20 and September 28, 2016, Jones was\\nseen briefly entering Cruz-Ortiz’s vehicle in a Target parking lot and leaving\\nthe vehicle holding a bag. On the latter occasion, Jones drove from parking\\n\\n\\n\\n 1 Rehman also testified that he did not know Jones and had never seen him\\nbefore trial.\\n 2\\n\\f Case: 18-50086 Document: 00515019836 Page: 3 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nspot to parking spot for about an hour before Cruz-Ortiz arrived, but did not\\nenter any stores. 2 Jones was not searched or arrested on either date, and law\\nenforcement officers were unable to definitively ascertain the content of the\\nbags. On October 6, 2016, Jones was again observed in the Target parking lot\\nmoving from spot to spot, but he left without meeting anyone. Detective\\nMichelle Langham, one of the case agents on the investigation, testified that\\nshe believed Jones left because he spotted surveillance units.\\n About six months later, on April 3, 2017, law enforcement officers—again\\nacting on a tip from their confidential informant—conducted surveillance of\\nthe parking lot of a Valero/Wag-A-Bag gas station. Detective Langham\\ntestified that the surveillance team observed Jones arrive, pull up to the gas\\npumps, drive back and forth in the area for about an hour, return to the\\nparking lot, and meet up with Cruz-Ortiz’s vehicle. Both vehicles then drove\\nout of the parking lot in tandem. Detective Langham acknowledged that she\\ndid not observe any exchange of items between Jones and Cruz-Ortiz and she\\ndid not stop Jones or seize any drugs on this date.\\n The central events in this case occurred on May 3, 2017. Special Agent\\nRoyce Clayborne received a tip from the confidential informant that a drug\\ndeal would occur at the same Valero on May 3, 2017. A surveillance team set\\nup in the area and observed Jones arrive and pull alongside a truck driven by\\nsomeone they identified as Cruz-Ortiz’s roommate. Detective Langham\\ntestified that Jones gestured to the other driver, and both vehicles drove off\\ntogether. Officers followed the two vehicles as they left the gas station and\\ntraveled down County Road 213, a lightly traveled rural road. The vehicles\\nbriefly passed out of view. When Detective Langham drove by, she saw the two\\n\\n\\n\\n 2 Jones points to photographic evidence in the record that he did enter the\\nTarget store on September 20, 2016.\\n 3\\n\\f Case: 18-50086 Document: 00515019836 Page: 4 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nvehicles meet for less than a minute in a dirt pull-off on the side of the road\\nand then drive off in different directions. Nobody saw any transaction or\\nexchange of items between Jones and the other driver, and nobody observed\\nJones in possession of a firearm. The individual believed to be Cruz-Ortiz’s\\nroommate was not followed or stopped after this encounter.\\n Officers instead followed Jones as he turned onto County Road 201.\\nDetective Langham directed a sheriff’s deputy to stop Jones for a traffic\\nviolation. Jones did not immediately stop when the deputy activated his\\nemergency lights. Instead, Jones abruptly sped up and drove up to 90 miles\\nper hour on a 40-mile-an-hour road for about a mile, passing out of view at\\ncertain points. Law enforcement officers did not observe Jones throw anything\\nfrom his truck but, when Jones finally stopped, the windows on both sides of\\nhis truck were down. Officers arrested Jones and searched his truck, but found\\nno drugs or firearms.\\n With the assistance of canine units, law enforcement then searched both\\nsides of County Road 201. After one to two hours of searching, officers found\\nan unloaded pistol in a cactus patch on what would have been the passenger\\nside of Jones’s vehicle, about a quarter of a mile from where Jones ultimately\\nstopped. The pistol was wedged into a cactus and covered in dirt and cactus\\npollen. Detective Langham testified that the pistol was not rusted and was not\\ncovered by leaves or other objects, and she did not believe it had been there for\\na long period of time. Officers also found a gun magazine nearby.\\n A sheriff’s deputy driving to collect the gun noticed a Ziploc bag\\napproximately a quarter of a mile from where the gun was found and on the\\nopposite side of the road. The Ziploc, found next to a reusable plastic bag,\\ncontained about 982 grams of methamphetamine. Detective Langham testified\\nthat both the gun and the methamphetamine were found in an area where the\\nsheriff’s deputy lost sight of Jones as he sped down the road. Detective\\n 4\\n\\f Case: 18-50086 Document: 00515019836 Page: 5 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nLangham and Agent Clayborne testified that they had extensive experience in\\ndrug investigations and had never randomly encountered a kilogram of\\nmethamphetamine on the side of the road. Fingerprint analysis was conducted,\\nbut there were no usable prints on the methamphetamine bag or the pistol,\\nand the usable prints on the reusable plastic bag were either inconclusive or\\ndid not match Jones.\\n Jones was interrogated on the night of his arrest. He told a detective that\\nhe did not intentionally flee the sheriff’s deputy but was instead attempting to\\nget away from an individual who attempted to fight him at the Valero. Jones\\nstated that he did not see the deputy or his blue lights. As Jones now\\nacknowledges, this description of a fight at the Valero was inconsistent with\\nwhat the surveillance team observed. Jones did not admit to possessing a\\nfirearm or to possessing methamphetamine.\\n B.\\n Jones was subsequently charged with (1) possession with intent to\\ndistribute 500 grams or more of methamphetamine, (2) conspiracy to possess\\nwith intent to distribute 500 grams or more of methamphetamine, (3)\\npossession of a firearm by a convicted felon, and (4) possession of a firearm in\\nfurtherance of a drug trafficking crime. The government filed notice of its\\nintent to introduce evidence of other crimes under Federal Rule of Evidence\\n404(b), and Jones filed a motion to exclude this evidence. Jones also filed\\npretrial motions to compel disclosure of the identity of the government’s\\nconfidential informant and to exclude testimony related to the confidential\\ninformant under Federal Rule of Evidence 403 and the Confrontation Clause\\nof the Sixth Amendment. The district court denied the motion to disclose the\\nconfidential informant, and stated that it was denying the motion to exclude\\ntestimony “at this time prior to trial.” The court explained that “[t]he\\ninformation, I suspect, is simply going to be a suspected drug transaction at\\n 5\\n\\f Case: 18-50086 Document: 00515019836 Page: 6 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nthat address,” but noted that “[i]f the government is going to go further, the\\ngovernment needs to tell counsel.”\\n The case proceeded to a four-day jury trial. At trial, law enforcement\\nofficers testified about their investigation into Cruz-Ortiz’s suspected\\nmethamphetamine distribution and their surveillance of Cruz-Ortiz and\\nJones. This testimony included multiple references to tips and other\\ninformation received from the confidential informant. Jones objected to this\\ntestimony on hearsay grounds. The district court sustained some objections,\\nbut determined that other references to the confidential informant were\\nadmissible to explain the officers’ actions rather than for the truth of the\\nmatter asserted in the statements.\\n Over Jones’s continued objection, the district court also admitted\\nevidence of Jones’s prior judgment of conviction. The district court instructed\\nthe jury that it could not consider the prior conviction as proof of the crimes\\ncharged, except as to the charge for being a felon in possession of a firearm.\\nThe district court further instructed the jury that, if it found beyond a\\nreasonable doubt from other evidence that Jones committed the acts charged\\nin the indictment, it could consider evidence of similar acts allegedly\\ncommitted on other occasions to determine intent, motive, opportunity, plan,\\nor absence of mistake.\\n The district court denied Jones’s motion for a judgment of acquittal, and\\nthe jury found Jones guilty on all four counts. The district court later denied a\\npost-trial motion for judgment of acquittal or, alternatively, a new trial. Jones\\nwas sentenced to a total of 300 months’ imprisonment, the mandatory\\nminimum for his offenses. At the same sentencing hearing, the district court\\nfound that Jones violated his supervised release on the 2010 federal conviction\\nbecause of his new criminal conviction in this case. The district court sentenced\\n\\n\\n 6\\n\\f Case: 18-50086 Document: 00515019836 Page: 7 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nJones to 18 months’ imprisonment on the revocation, to run consecutively to\\nhis 300 month term.\\n Jones now appeals his convictions and the revocation of his supervised\\nrelease. He argues that (1) the district court erred by admitting evidence of his\\nprior conviction, (2) testimony regarding the confidential informant violated\\nhis rights under the Confrontation Clause, (3) the district court erred by not\\nordering disclosure of the identity of the confidential informant, and (4) the\\nevidence was insufficient to support the jury’s verdict on any of the four counts.\\nJones further contends that his revocation judgment must be vacated because\\nit was predicated on an invalid conviction. We address each argument in turn.\\n II.\\n Under Federal Rule of Evidence 404(b), evidence of a defendant’s past\\ncrime “is not admissible to prove a person’s character,” but “may be admissible\\nfor another purpose, such as proving motive, opportunity, intent, preparation,\\nplan, knowledge, identity, absence of mistake, or lack of accident.” Jones\\nproperly objected to the admission of his prior judgment of conviction. “We\\nreview the district court’s admission of extrinsic offense evidence over a 404(b)\\nobjection under a ‘heightened’ abuse of discretion standard.” United States v.\\nJackson, 339 F.3d 349, 354 (5th Cir. 2003) (quoting United States v.\\nWisenbaker, 14 F.3d 1022, 1028 (5th Cir. 1994)). The burden is on the\\ngovernment to demonstrate “that a prior conviction is relevant and admissible\\nunder 404(b).” United States v. Wallace, 759 F.3d 486, 494 (5th Cir. 2014).\\n The admissibility of a prior conviction “under Rule 404(b) hinges on\\nwhether (1) it is relevant to an issue other than the defendant’s character, and\\n(2) it ‘possess[es] probative value that is not substantially outweighed by its\\nundue prejudice’ under Federal Rule of Evidence 403.” United States v. Smith,\\n804 F.3d 724, 735 (5th Cir. 2015) (quoting United States v. Beechum, 582 F.2d\\n898, 911 (5th Cir. 1978) (en banc)). “We consider several factors in determining\\n 7\\n\\f Case: 18-50086 Document: 00515019836 Page: 8 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nwhether the prejudicial effect of the extrinsic evidence substantially outweighs\\nits probative value: (1) the government’s need for the extrinsic evidence, (2) the\\nsimilarity between the extrinsic and charged offenses, (3) the amount of time\\nseparating the two offenses, and (4) the court’s limiting instructions.” United\\nStates v. Kinchen, 729 F.3d 466, 473 (5th Cir. 2013). We also “consider the\\noverall prejudicial effect of the extrinsic evidence.” United States v. Juarez, 866\\nF.3d 622, 627 (5th Cir. 2017).\\n In this case, Jones was charged with being a felon in possession of a\\nfirearm, and the evidence of his prior conviction was relevant and necessary to\\nestablish an element of this offense, namely, that he was a felon. Jones does\\nnot point to any stipulation in the record to a prior felony conviction and he\\ndoes not explain how the government could have proven this element without\\nintroducing his judgment of conviction. Nor does he argue that the district\\ncourt should have severed the felon-in-possession charge from his other counts.\\nAccordingly, the district court did not err in admitting Jones’s prior conviction\\nas substantive evidence of the felon-in-possession charge. See United States v.\\nTurner, 674 F.3d 420, 430 (5th Cir. 2012).\\n Jones primarily argues that the government impermissibly used his\\nprior conviction for purposes beyond establishing that he was a convicted felon.\\nThe district court instructed the jury that, if it found beyond a reasonable\\ndoubt that Jones committed the acts charged in the indictment, it could\\nconsider his past similar acts for the limited purposes outlined in Rule 404(b),\\nincluding whether Jones “had the state of mind or intent necessary to commit\\nthe crime charged in the indictment.” “Extrinsic evidence has high probative\\nvalue when intent is the key issue at trial.” Juarez, 866 F.3d at 627.\\n Jones argues that the government’s need for this evidence was minimal\\nbecause his “theory of defense was not based on an argument that he was an\\nignorant participant in the alleged events.” Yet, in its order denying Jones’s\\n 8\\n\\f Case: 18-50086 Document: 00515019836 Page: 9 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\npost-trial motion, the district court explained that Jones placed his intent at\\nissue by arguing that he lacked intent to engage in a drug conspiracy and may\\nhave been meeting Cruz-Ortiz to obtain drugs for his personal use. See United\\nStates v. Jimenez-Elvirez, 862 F.3d 527, 536–37 (5th Cir. 2017). Jones does not\\naddress this finding by the district court. Notably, Jones’s closing argument\\nhighlighted the district court’s instruction to the jury that mere presence at\\nthe scene of an event or association with certain other persons is insufficient\\nto prove a conspiracy. Further, the record does not indicate that Jones “offered\\nany kind of ‘enforceable pre-trial assurances’ or any stipulation or concession\\nregarding his intent.” United States v. Carrillo, 660 F.3d 914, 929 n.6 (5th Cir.\\n2011) (citing United States v. McCall, 553 F.3d 821, 828 (5th Cir. 2008)). The\\ngovernment therefore needed to prove Jones’s intent at trial.\\n We are also satisfied that the district court properly weighed the other\\nthree relevant factors. Jones’s past methamphetamine conspiracy conviction is\\nidentical to one of the offenses charged in this case. We have observed that\\n“[s]imilarity between the prior and charged offenses increases both the\\nprobative value and prejudicial effect of extrinsic evidence” and requires the\\ndistrict court to “assess the similarity of the offenses and weigh enhanced\\nprobative value against the prejudice that almost certainly results when\\nevidence of prior misconduct is admitted.” Juarez, 866 F.3d at 628 (quotations\\nomitted); see also Jimenez-Elvirez, 862 F.3d at 536. Jones does not argue,\\nhowever, that his past conviction is too similar to the offenses charged here.\\nInstead, both on appeal and before the district court, Jones attempted to\\ndistinguish his past criminal conduct as dissimilar from the conduct alleged in\\nthis case. Yet minor factual differences between Jones’s past offense and the\\nconduct alleged here do not render his past conviction non-probative.\\n Further, although Jones’s prior conviction was seven years old, he was\\nreleased from prison less than two years before his May 3, 2017, arrest and\\n 9\\n\\f Case: 18-50086 Document: 00515019836 Page: 10 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nwas still on supervised release for that conviction. His conviction was not too\\nremote in time to be probative. See United States v. Arnold, 467 F.3d 880, 885\\n(5th Cir. 2006) (affirming use of past conviction that was nine years old).\\nFinally, and critically, the district court gave the jury an appropriate limiting\\ninstruction. See Wallace, 759 F.3d at 495. The government did not urge the\\njury to disregard its instructions or consider the evidence for an improper\\npurpose. 3\\n “Even if all four factors weigh in the Government’s favor, we must still\\nevaluate the district court’s decision under a ‘commonsense assessment of all\\nthe circumstances surrounding the extrinsic offense.’” Juarez, 866 F.3d at 629\\n(quoting Beechum, 582 F.2d at 914). Here, Jones’s judgment of conviction was\\nadmissible to prove an element of one of his charged offenses. The additional\\nprejudicial effect of permitting the jury to consider Jones’s prior conviction to\\nhelp determine his intent was therefore diminished. Moreover, Jones’s past\\nconviction was “not of a heinous or violent nature” and “was unlikely to incite\\nthe jury to convict purely based on its emotional impact.” Id. at 630. Evidence\\nof his past conviction was not “greater in magnitude than the crimes for which\\n[Jones] was on trial, nor did [it] occupy more of the jury’s time than the\\nevidence of the charged offenses.” United States v. Hernandez-Guevara, 162\\nF.3d 863, 872 (5th Cir. 1998).\\n Contrary to Jones’s arguments, affirming the use of his prior conviction\\nin this case “does not render all prior narcotics convictions per se admissible in\\na drug conspiracy case.” Wallace, 759 F.3d at 494; see also Carrillo, 660 F.3d\\nat 929. We hold only that, under the specific circumstances of Jones’s trial, the\\n\\n\\n\\n 3 As explained below, the government did elicit testimony that it was common\\nfor drug dealers to carry guns. But this testimony did not rely on Jones’s past drug conviction.\\nRather, it was consistent with the government’s theory that Jones possessed the pistol while\\npurchasing methamphetamine on May 3, 2017.\\n 10\\n\\f Case: 18-50086 Document: 00515019836 Page: 11 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\ndistrict court did not abuse its discretion in balancing the relevant factors and\\nfinding the evidence relevant and admissible.\\n III.\\n We turn next to Jones’s challenge under the Confrontation Clause. The\\nSixth Amendment provides a criminal defendant with the right “to be\\nconfronted with the witnesses against him.” U.S. Const. Amend. VI. “[T]his\\nbedrock procedural guarantee” protects against convictions based on out-of-\\ncourt accusations that the defendant cannot test “in the crucible of cross-\\nexamination.” Crawford v. Washington, 541 U.S. 36, 42, 61 (2004). To satisfy\\nthe Confrontation Clause, “[t]estimonial statements of witnesses absent from\\ntrial” may be “admitted only where the declarant is unavailable, and only\\nwhere the defendant has had a prior opportunity to cross-examine.” Id. at 59.\\nWe review preserved claims of Confrontation Clause error de novo, subject to\\nharmless error analysis. See United States v. Kizzee, 877 F.3d 650, 656 (5th\\nCir. 2017).\\n A.\\n Prior to and during trial, Jones made multiple objections to the\\ngovernment’s use of information from its confidential informant. We focus our\\nConfrontation Clause analysis on the following series of exchanges with Agent\\nClayborne. The first occurred on direct examination:\\n\\n Prosecutor: [B]ased on the information you’d received, Coy Jones\\n had received a large amount of methamphetamine?\\n\\n Defense: Objection. Hearsay.\\n\\n Prosecutor: I’ll withdraw the question.\\n\\n The Court: That objection is overruled.\\n\\n Prosecutor: I’ll withdraw the question, your Honor.\\n\\n 11\\n\\f Case: 18-50086 Document: 00515019836 Page: 12 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\n The Court: All right.\\n\\n Prosecutor: Why did you follow Coy Jones as opposed to the other\\n guy?\\n\\n Agent Clayborne: Well, we knew that Coy Jones had just received\\n a large amount of methamphetamine.\\n\\n Prosecutor: And once you knew that he had received that\\n methamphetamine, what did you do?\\n\\n Agent Clayborne: We were coordinating a traffic stop of the vehicle\\n driven by Coy Jones, which is the white truck.\\n\\n Prosecutor: And why did you want to stop that vehicle?\\n\\n Agent Clayborne: Because it had methamphetamine, we wanted to\\n seize it and arrest Coy Jones.\\n\\nOn cross-examination, defense counsel questioned Agent Clayborne regarding\\nhis asserted knowledge that Jones had received methamphetamine:\\n\\n Defense: [Y]ou didn’t see any interaction between Mr. Jones and\\n the silver truck, right?\\n\\n Agent Clayborne: That’s correct.\\n\\n Defense: But you testified that you knew Jones had received a\\n large amount of methamphetamine.\\n\\n Agent Clayborne: That’s correct.\\n\\n Defense: But you didn’t know that, right? You hadn’t seen\\n anything. You hadn’t seen an exchange of methamphetamine or\\n money.\\n\\n Agent Clayborne: But I knew it was.\\n\\n Defense: You believed it, but you didn’t know it.\\n\\n Agent Clayborne: I knew it. I mean, if you’re asking me, I knew it.\\n 12\\n\\f Case: 18-50086 Document: 00515019836 Page: 13 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nDefense counsel then moved on to other questions. On re-direct examination,\\nthe government returned to the subject of Agent Clayborne’s knowledge of\\nJones’s methamphetamine possession:\\n\\n Prosecutor: [Defense counsel] also asked you, let me characterize\\n this, sort of confronted you about when you said you knew a drug\\n deal had gone down, but you had not seen anything. Do you recall\\n that?\\n\\n Agent Clayborne: That’s correct.\\n\\n Prosecutor: How did you know that a drug deal had, in fact,\\n occurred?\\n\\n Agent Clayborne: So once we saw or the other units saw what\\n looked like a drug deal, I made a phone call to my confidential\\n source, who then made some phone calls himself and got back to me\\n that the deal had happened. (emphasis added).\\n\\n Prosecutor: Based on that information, you decided to stop Coy\\n Jones?\\n\\n Agent Clayborne: That’s correct.\\n\\nDefense counsel asked to approach the bench and renewed the motion for\\ndisclosure of the confidential informant. Counsel argued that Agent Clayborne\\ntestified about the content of what the informant said and that Jones had the\\nright to confront the witnesses against him. The district court stated that the\\ntestimony regarding the confidential informant came in response to defense\\nquestions on cross-examination and that the defense opened the door to the\\ntestimony. The court also denied Jones’s renewed motion to turn over reports\\non the confidential informant.\\n B.\\n “Police officers cannot, through their trial testimony, refer to the\\nsubstance of statements given to them by nontestifying witnesses in the course\\n 13\\n\\f Case: 18-50086 Document: 00515019836 Page: 14 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nof their investigation, when those statements inculpate the defendant.” Taylor\\nv. Cain, 545 F.3d 327, 335 (5th Cir. 2008). An officer’s testimony need not\\nrepeat the absent witness’s exact statement to implicate the Confrontation\\nClause. Rather, “[w]here an officer’s testimony leads to the clear and logical\\ninference that out-of-court declarants believed and said that the defendant was\\nguilty of the crime charged, Confrontation Clause protections are triggered.”\\nKizzee, 877 F.3d at 657 (quotation omitted).\\n Agent Clayborne testified that he knew that Jones had received a large\\namount of methamphetamine because of what the confidential informant told\\nhim he heard from others. The jury was not required to make any logical\\ninferences, clear or otherwise, to link the informant’s statement (double\\nhearsay) to Jones’s guilt of the charged offense of methamphetamine\\npossession. The government reinforced this connection during both opening\\nand closing statements. In opening remarks, the prosecutor described the May\\n3, 2017, surveillance and stated: “Of course, the information the agents have\\nat this point is that Coy Jones is now in possession of a large amount of\\nmethamphetamine, so they follow Coy Jones.” In closing arguments, the\\nprosecutor told the jury:\\n And then, as you heard from Agent Clayborne when the defense\\n asked him, how do you know the drug deal happened? Well, the\\n informant told me. We called the informant and said, did the deal\\n happen and he said, yep, it sure did. And that’s why they chose to\\n follow Coy Jones because they knew he had the drugs.\\n\\nIn light of this testimony and argument, we differ with the government’s\\nassertion that the informant’s statements did not directly identify Jones. Both\\nAgent Clayborne and the prosecution “blatantly link[ed]” Jones to the drug\\ndeal and “eliminated all doubt” as to who the informant was referring to. Gray\\nv. Maryland, 523 U.S. 185, 193–94 (1998).\\n\\n\\n 14\\n\\f Case: 18-50086 Document: 00515019836 Page: 15 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\n The government does not dispute that the confidential informant’s\\nstatements regarding the drug deal are inadmissible under the Confrontation\\nClause as substantive evidence of Jones’s guilt. It argues instead that the\\ninformant’s statements were not introduced for their truth, but simply to\\nexplain the actions of law enforcement officers. The district court instructed\\nthe jury that testimony regarding the confidential informant “was admitted\\nonly to explain why law enforcement was conducting various surveillance\\noperations,” and could not be used “as evidence the defendant, or anyone else,\\nactually engaged in a drug transaction.”\\n Testifying officers may refer to out-of-court statements to “provide\\ncontext for their investigation or explain ‘background’ facts,” so long as the\\n“out-of-court statements are not offered for the truth of the matter asserted\\ntherein, but instead for another purpose: to explain the officer’s actions.”\\nKizzee, 877 F.3d at 659. We have made clear that “[w]hen such evidence comes\\ninto play, the prosecution must be circumspect in its use, and the trial court\\nmust be vigilant in preventing its abuse.” United States v. Evans, 950 F.2d 187,\\n191 (5th Cir. 1991); see also United States v. Sosa, 897 F.3d 615, 623 (5th Cir.\\n2018) (“[C]ourts must be vigilant in ensuring that these attempts to ‘explain\\nthe officer’s actions’ with out-of-court statements do not allow the backdoor\\nintroduction of highly inculpatory statements that the jury may also consider\\nfor their truth.”) (quoting Kizzee, 877 F.3d at 659).\\n Such vigilance is necessary to preserve the core guarantees of the\\nConfrontation Clause. A witness’s statement to police that the defendant is\\nguilty of the crime charged is highly likely to influence the direction of a\\ncriminal investigation. But a police officer cannot repeat such out-of-court\\naccusations at trial, even if helpful to explain why the defendant became a\\nsuspect or how the officer was able to obtain a search warrant. See Kizzee, 877\\nF.3d at 659–60 (holding that a detective’s testimony that he was able to obtain\\n 15\\n\\f Case: 18-50086 Document: 00515019836 Page: 16 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\na search warrant for the defendant’s house after questioning a witness about\\ndrug purchases violated the Confrontation Clause); Taylor, 545 F.3d at 331,\\n336 (finding a violation of clearly established law when an officer testified that\\nhe was able to develop a suspect after an unnamed individual told him “that\\nthe perpetrator was Bruce”); United States v. Hernandez, 750 F.2d 1256, 1257\\n(5th Cir. 1985) (rejecting argument that hearsay evidence identifying the\\ndefendant as a drug smuggler was permissibly used “to explain the motivation\\nbehind DEA’s investigation”).\\n “Statements exceeding the limited need to explain an officer’s actions can\\nviolate the Sixth Amendment—where a nontestifying witness specifically links\\na defendant to the crime, testimony becomes inadmissible hearsay.” Kizzee,\\n877 F.3d at 659; see also United States v. Vitale, 596 F.2d 688, 689 (5th Cir.\\n1979) (explaining that testimony regarding a tip is permissible “provided that\\nit is simply background information showing the police officers did not act\\nwithout reason and, in addition, that it does not point specifically to the\\ndefendant”). Because Agent Clayborne’s testimony about his conversation with\\nthe confidential informant “point[ed] directly at the defendant and his guilt in\\nthe crime charged,” it was not a permissible use of tipster evidence. Evans, 950\\nF.2d at 191. Thus, the introduction of this statement at trial violated the\\nConfrontation Clause. 4\\n C.\\n The government contends that, to the extent its use of the confidential\\ninformant’s statements exceeded permissible non-hearsay purposes, Jones\\n\\n\\n\\n 4 In light of this holding, as well as less-developed briefing, we do not reach\\nJones’s argument that other references to the confidential informant at trial also violated the\\nConfrontation Clause. Instead, to the extent the district court may need to revisit these issues\\nat a new trial, we reiterate our earlier admonitions that tipster evidence “exceeding the\\nlimited need to explain an officer’s actions can violate the Sixth Amendment,” Kizzee, 877\\nF.3d at 659, and “the prosecution must be circumspect in its use.” Evans, 950 F.2d at 191.\\n 16\\n\\f Case: 18-50086 Document: 00515019836 Page: 17 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\ninvited the error. This argument falls short for two independent reasons. First,\\ndefense counsel did not ask Agent Clayborne how he knew that Jones had\\nreceived the methamphetamine, and thus did not invite him to answer that\\nquestion. Rather, the defense simply pointed out an inconsistency between\\nAgent Clayborne’s testimony that he did not observe a drug transaction and\\nhis confident assertion that he knew Jones had received the drugs. “We\\nnarrowly construe counsel’s statements in applying the invited error doctrine.”\\nUnited States v. Franklin, 838 F.3d 564, 567 n.1 (5th Cir. 2016). In this case it\\nwas the prosecution, not the defense, that elicited the hearsay testimony by\\nasking Agent Clayborne how he knew that the drug deal had occurred. Cf.\\nUnited States v. Jimenez, 509 F.3d 682, 691 (5th Cir. 2007) (finding invited\\nerror when the challenged “testimony was first elicited by Contreras’ own\\nattorney on cross-examination after he repeatedly asked Delauney to explain\\nthe basis for his suspicions about Contreras”). The government has pointed to\\nno authority suggesting that the defense raising general doubts on cross-\\nexamination about the basis of an officer’s knowledge permits the prosecution\\nto directly elicit incriminating hearsay testimony on re-direct examination.\\n Second, it is undisputed that defense counsel was not informed before\\ntrial that the confidential informant provided law enforcement with after-the-\\nfact information that the drug deal went through. For invited error to permit\\n“waiver of the Sixth Amendment right to confrontation, a purposeful rather\\nthan inadvertent inquiry into the forbidden matter must be shown.” United\\nStates v. Taylor, 508 F.2d 761, 764 (5th Cir. 1975); see also United States v.\\nSalazar, 751 F.3d 326, 332 (5th Cir. 2014) (“Invited error applies, however,\\nonly where the error can be attributed to the actions of the defense.”). The Sixth\\nAmendment guarantees defendants the right to confront all accusers, whether\\npresent or absent at trial. See Crawford, 541 U.S. at 50–51. A defendant may\\ncross-examine the government’s witnesses and probe seeming inconsistencies\\n 17\\n\\f Case: 18-50086 Document: 00515019836 Page: 18 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nwithout risking the unwitting admission of incriminating hearsay. See Taylor,\\n508 F.2d at 764 (finding no invited error when defense counsel “had no way to\\nknow that asking about the sawed-off rifle would lead the witness into the\\n[challenged] statement”). To hold otherwise would eviscerate the protections of\\nthe Confrontation Clause by forcing defendants to choose between their right\\nto vigorously cross-examine testifying witnesses and their right to confront\\nout-of-court accusers.\\n D.\\n We may nonetheless affirm Jones’s conviction if the Confrontation\\nClause error was harmless beyond a reasonable doubt. See United States v.\\nAlvarado-Valdez, 521 F.3d 337, 341 (5th Cir. 2008); Chapman v. California,\\n386 U.S. 18, 24 (1967). To meet this standard, the government bears the\\nburden to show that there was “no reasonable possibility that the tainted\\nevidence might have contributed to the jury’s verdict of guilty.” Lowery v.\\nCollins, 988 F.2d 1364, 1373 (5th Cir. 1993). Here, the government points to\\nother evidence of guilt, including surveillance of apparent drug transactions\\nand Jones’s flight from police, and argues that the confidential informant’s\\ntestimony “was not crucial” to its case. This is insufficient to satisfy the\\ngovernment’s burden.\\n Our harmlessness inquiry focuses “on the evidence that violated\\n[Jones’s] confrontation right, not the sufficiency of the evidence remaining\\nafter excision of the tainted evidence.” Id.; see also United States v. Dominguez\\nBenitez, 542 U.S. 74, 81 n.7 (2004) (“When the Government has the burden of\\naddressing prejudice, as in excusing preserved error as harmless on direct\\nreview of the criminal conviction, it is not enough to negate an effect on the\\noutcome of the case.”); Alvarado-Valdez, 521 F.3d at 342 (“Our focus is on the\\npossibility of harm arising from [the] testimony and not necessarily on the\\n\\n\\n 18\\n\\f Case: 18-50086 Document: 00515019836 Page: 19 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\npossibility of its relationship to other evidence.”). 5 Here, the inadmissible\\nevidence was highly incriminating. Jones was charged, among other counts,\\nwith possession with the intent to distribute methamphetamine. He denied\\npossessing the drugs. No drugs were found in his possession and no officer\\nwitnessed a drug transaction on May 3, 2017. The informant’s statement,\\nrevealed through Agent Clayborne’s testimony and emphasized during closing\\narguments, directly implicated Jones in methamphetamine possession.\\n We have repeatedly found harmful error under similar circumstances.\\nSee Kizzee, 877 F.3d at 662 (finding that Confrontation Clause error was not\\nharmless when testimony was referenced in closing arguments and “no other\\nwitness in this case could provide testimony from personal knowledge that\\nKizzee sold drugs”); Duron-Caldera, 737 F.3d at 996–97 (noting that the\\ncontested affidavit undermined the defendant’s “sole defense,” and the\\ngovernment relied on it in closing arguments); Taylor, 545 F.3d at 337 (holding\\nthat Confrontation Clause error was not harmless “[i]n light of the dependency\\nof the prosecution on a single witness’s less-than-certain identification,\\ncombined with the use of tainted hearsay evidence both in testimony and in\\nclosing argument asserting that the defendant was the ‘perpetrator’”);\\nAlvarado-Valdez, 521 F.3d at 342–43 (“We cannot see how the government can\\n\\n\\n\\n 5 Our harmless error cases have also considered factors such as “the importance\\nof the witness’ testimony in the prosecution’s case, whether the testimony was cumulative,\\nthe presence or absence of evidence corroborating or contradicting the testimony of the\\nwitness on material points, the extent of cross-examination otherwise permitted, and of\\ncourse, the overall strength of the prosecution’s case.” United States v. Duron-Caldera, 737\\nF.3d 988, 996 (5th Cir. 2013) (quotation omitted). Yet we have also explained that these\\nfactors are primarily relevant in cases involving “Confrontation Clause violations arising\\nfrom the denial of a defendant’s right to impeach a witness for bias.” Alvarado-Valdez, 521\\nF.3d at 342 (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). This is not such a\\ncase. In any event, our cases have consistently recognized that the government must show\\n“no reasonable possibility that the evidence complained of might have contributed to the\\nconviction.” Kizzee, 877 F.3d at 661 (quotation omitted); see also Duron-Caldera, 737 F.3d at\\n996.\\n 19\\n\\f Case: 18-50086 Document: 00515019836 Page: 20 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nconclusively show that the tainted evidence did not contribute to the\\nconviction, because the government’s closing argument relied on that very\\nevidence.”).\\n Our recent decision in United States v. Sarli, 913 F.3d 491 (5th Cir.\\n2019), is not to the contrary. In Sarli, the defendant was arrested with a large\\namount of methamphetamine. Id. at 493. A detective testified that law\\nenforcement arrested Sarli following a tip from a confidential informant, and\\nthe prosecution mentioned this tip briefly in opening and closing arguments.\\nId. at 498. Critically, “Sarli did not dispute that he carried drugs—but he did\\ndispute that he knew he was carrying drugs.” Id. at 497. We determined that\\nreferences to the confidential informant’s tip were harmless because “nothing\\nin the confidential tip established whether Sarli was a knowing participant or\\nan ignorant, gullible mule—and the prosecutor did not once suggest\\notherwise.” Id. at 499. Here, by contrast, the informant’s purported\\nconfirmation that a drug deal occurred directly inculpated Jones in the\\ncontested element of possession.\\n It is possible that the jury concluded that Jones possessed a large amount\\nof methamphetamine based only on his meetings with Cruz-Ortiz, his highly\\nsuspicious conduct on May 3, 2017, and the improbability that the\\nmethamphetamine and pistol would be randomly discovered on the side of the\\nroad. But it is also possible that any doubts about Jones’s guilt were dispelled\\nby Agent Clayborne’s testimony, emphasized during closing arguments, that\\nhe knew Jones possessed methamphetamine because of the information he\\nreceived from the confidential informant. “Under these circumstances, there is\\nno way to determine whether the jury would have convicted the defendant\\npurely on the basis of the tainted testimony or of any of the other evidence.”\\nUnited States v. Jackson, 636 F.3d 687, 697 (5th Cir. 2011) (quotation omitted).\\n\\n\\n 20\\n\\f Case: 18-50086 Document: 00515019836 Page: 21 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\n“That would require retrying the case on appeal, at best, or engaging in pure\\nspeculation, at worst.” Alvarado-Valdez, 521 F.3d at 343.\\n The government has therefore failed to meet its burden to show harmless\\nerror as to Jones’s conviction for possession with intent to distribute 500 grams\\nor more of methamphetamine. Two other counts of conviction—conspiracy to\\npossess with intent to distribute 500 grams or more of methamphetamine and\\npossession of a firearm in furtherance of a drug trafficking crime—are closely\\nlinked to Jones’s alleged methamphetamine purchases and must similarly be\\nreversed. Jones’s remaining count of conviction—possession of a firearm by a\\nconvicted felon—does not directly relate to methamphetamine possession or\\ndistribution. Yet, as the government itself argued in its briefing and at oral\\nargument, the evidence of gun possession is deeply intertwined with Jones’s\\nalleged methamphetamine dealing. The government elicited testimony at trial\\nthat it is common for drug dealers to carry guns to protect themselves and their\\nproduct. On appeal, the government contends that Jones’s involvement in drug\\ntrafficking supports an inference that he possessed the discarded pistol. The\\ngovernment has offered no argument that Jones’s felon-in-possession\\nconviction can survive the reversal of his other counts of conviction. 6 Under\\nthese circumstances, we cannot say that there is no “reasonable possibility that\\nthe evidence complained of might have contributed to the conviction” for\\nfirearm possession. Chapman, 386 U.S. at 24. We thus vacate the judgment of\\nconviction on all counts and remand for a new trial.\\n IV.\\n Jones also appeals the denial of his motion to disclose the identity of the\\nconfidential informant. We review a district court’s decision to deny disclosure\\n\\n\\n 6 Indeed, the government candidly acknowledged at oral argument that it could\\nbe more difficult to establish harmlessness as to the firearm counts than as to the\\nmethamphetamine counts.\\n 21\\n\\f Case: 18-50086 Document: 00515019836 Page: 22 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nof an informant’s identity for abuse of discretion. United States v. Ibarra, 493\\nF.3d 526, 531 (5th Cir. 2007). There is “no fixed rule” in this area because “[t]he\\nproblem is one that calls for balancing the public interest in protecting the flow\\nof information against the individual’s right to prepare his defense.” Roviaro\\nv. United States, 353 U.S. 53, 62 (1957). “We apply a three factor test to\\ndetermine whether the identity of a confidential informant should be disclosed:\\n‘(1) the level of the informant’s activity; (2) the helpfulness of the disclosure to\\nthe asserted defense; and (3) the Government’s interest in nondisclosure.’”\\nUnited States v. Ortega, 854 F.3d 818, 824 (5th Cir. 2017) (quoting Ibarra, 493\\nF.3d at 531).\\n In response to Jones’s request for disclosure, the government\\nrepresented that the informant “just gave a tip,” “was not on the scene on any\\nof this that will be the subject of trial,” and “would not be a fact witness.” The\\ndistrict court held an ex parte hearing with the government and subsequently\\ndenied Jones’s motion for disclosure of the confidential informant, citing safety\\nconcerns and the government’s long relationship with the informant. We have\\naffirmed the denial of a request for disclosure when the confidential informant\\n“was a mere tipster,” the informant did not provide information that would aid\\nthe defense, and disclosure posed risks to the safety of the informant and his\\nfamily and could jeopardize other ongoing investigations. Ibarra, 493 F.3d at\\n532.\\n Upon review of the transcript of the ex parte hearing, we concur in the\\ndistrict court’s assessment that disclosure of the informant’s identity could be\\ndangerous for the informant and his family. It is not clear from the record,\\nhowever, whether the district court fully considered the level of the informant’s\\ninvolvement in the contested conduct and the potential helpfulness of\\ndisclosure to Jones’s defense. These factors are closely tied to our\\nConfrontation Clause analysis. As explained above, the government’s use of\\n 22\\n\\f Case: 18-50086 Document: 00515019836 Page: 23 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nthe confidential informant at Jones’s trial exceeded the scope of a “mere\\ntipster.” The government instead elicited testimony that the confidential\\ninformant confirmed facts central to its case—that a drug deal occurred on May\\n3, 2017, and that Jones received a large amount of methamphetamine in that\\ntransaction.\\n Jones argues that disclosure of the informant’s identity would have been\\nhelpful to his defense because the informant could have been cross-examined\\nregarding the benefits he received in exchange for assisting law enforcement\\nas well as his own criminal history. This information was discussed during the\\ndistrict court’s ex parte hearing with the government but was not disclosed to\\nJones before trial. 7 The value of impeachment evidence depends on how a\\nwitness is used at trial and whether the witness’s credibility is a relevant issue\\nin the case. See, e.g., Giglio v. United States, 405 U.S. 150, 154–55 (1972). Here,\\nthe government relied on the confidential informant’s representation that a\\ndrug transaction was completed on May 3, 2017. Moreover, the government\\nhighlighted the trustworthiness of the confidential informant during closing\\narguments. The government noted that the informant had provided reliable\\ninformation about Cruz-Ortiz on multiple occasions and that law enforcement\\nofficers were “able to confirm what they’re being told by their informant, based\\non the information he gives them.” The government also emphasized that the\\ninformant was providing information about Cruz-Ortiz, not Jones, and “[i]t’s\\nnot like the CI is trying to frame up Coy Jones.” Under these circumstances,\\nan opportunity to challenge the informant’s motivations and credibility could\\nhave been helpful to the defense.\\n\\n\\n\\n\\n 7 Jones has not raised, and we do not address, whether the government had a\\nseparate obligation to disclose impeachment information to the defense under Brady v.\\nMaryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).\\n 23\\n\\f Case: 18-50086 Document: 00515019836 Page: 24 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\n Given our holding on Jones’s Confrontation Clause challenge, we expect\\nthe government to make different use of the confidential informant at any new\\ntrial. We thus remand to the district court to reconsider Jones’s motion for\\ndisclosure in connection with a new trial.\\n V.\\n Jones further argues that, without the confidential informant’s\\nimpermissible statements, there is not enough admissible evidence in the\\nrecord to support his convictions. “In reviewing the sufficiency of the evidence,\\nwe view the evidence and the inferences drawn therefrom in the light most\\nfavorable to the verdict, and we determine whether a rational jury could have\\nfound the defendant guilty beyond a reasonable doubt.” United States v.\\nMitchell, 484 F.3d 762, 768 (5th Cir. 2007). The record reflects that the\\nevidence was legally sufficient to support Jones’s convictions. The government\\noffered substantial evidence that Cruz-Ortiz was involved in\\nmethamphetamine distribution and that Jones had multiple meetings with\\nCruz-Ortiz that resembled drug purchases. This evidence—combined with\\nJones’s high-speed flight from the sheriff’s deputy, his false statements to\\npolice after his arrest, and the discovery of a pistol and nearly a kilogram of\\nmethamphetamine on the part of the road where Jones passed out of view—\\ncould lead a reasonable jury to find Jones guilty beyond a reasonable doubt of\\nthe offenses charged. Accordingly, we remand for a new trial rather than for\\nentry of a judgment of acquittal. See Jackson, 636 F.3d at 697–98.\\n VI.\\n Finally, Jones appeals the revocation of his supervised release. The\\ndistrict court found that Jones violated his supervised release because of his\\nconviction in the jury trial. The court also found that this was a Grade A\\nviolation as a matter of law. The government argues that, even if we set aside\\nJones’s new conviction, the district court had enough information to justify\\n 24\\n\\f Case: 18-50086 Document: 00515019836 Page: 25 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nrevoking Jones’s supervised release based on a preponderance of the evidence\\npresented at trial. Although this may be true, the district court made no\\nindependent factual findings as to Jones’s underlying criminal conduct and did\\nnot provide any alternative grounds to justify revoking Jones’s supervised\\nrelease. We therefore vacate and remand to the district court to reconsider\\nwhether to revoke Jones’s supervised release and, if so, what sentence to\\nimpose. See United States v. Jones, 484 F.3d 783, 793 (5th Cir. 2007).\\n VII.\\n The judgment of conviction is VACATED on all counts and this matter\\nis REMANDED for further proceedings consistent with this opinion. The\\njudgment of revocation is also VACATED and REMANDED.\\n\\n\\n\\n\\n 25\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4413466/\", \"author_raw\": \"STEPHEN A. HIGGINSON, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"HIGGINBOTHAM"},"judge2":{"kind":"string","value":"SMITH"},"judge3":{"kind":"string","value":"HIGGINSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4636213/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee v. Coy JONES, Defendant-Appellant United States of America, Plaintiff-Appellee v. Coy Marshall Jones, Defendant-Appellant\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-02\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-50086 Document: 00515019836 Page: 1 Date Filed: 07/02/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n United States Court of Appeals\n\n No. 18-50086\n Fifth Circuit\n\n FILED\n July 2, 2019\n\nUNITED STATES OF AMERICA, Lyle W. Cayce\n Clerk\n Plaintiff - Appellee\n\nv.\n\nCOY JONES,\n\n Defendant - Appellant\n-------- ----------------------\nConsolidated With\nCase No. 18-50088\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee\nv.\n\nCOY MARSHALL JONES,\n\n Defendant - Appellant\n\n\n\n\n Appeals from the United States District Court\n for the Western District of Texas\n\n\nBefore HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.\nSTEPHEN A. HIGGINSON, Circuit Judge:\n Upon sua sponte panel rehearing, we withdraw our prior opinion, United\nStates v. Jones, 924 F.3d 219 (5th Cir. 2019), and substitute the following:\n\f Case: 18-50086 Document: 00515019836 Page: 2 Date Filed: 07/02/2019\n\n\n\n No. 18-50086\n Coy Jones was convicted by a jury of possessing and conspiring to possess\nwith the intent to distribute methamphetamine, possessing a firearm as a\nconvicted felon, and possessing a firearm in furtherance of a drug trafficking\ncrime. We hold that Jones’s rights under the Confrontation Clause were\nviolated when a law enforcement officer testified that he knew Jones had\nreceived a large amount of methamphetamine because of what the officer was\ntold by a confidential informant. This error was not invited by the defense and\nwas not harmless. We therefore vacate Jones’s convictions and the related\nrevocation of his supervised release and remand for further proceedings.\n I.\n A.\n Jones was arrested in the course of an investigation into suspected large-\nscale methamphetamine distribution by Eredy Cruz-Ortiz. Acting on tips from\na confidential informant, law enforcement officers observed Cruz-Ortiz meet\nwith various individuals in Austin-area parking lots between August 2016 and\nMay 2017. On August 23, 2016, for instance, Cruz-Ortiz met with Imran\nRehman to sell him methamphetamine. Rehman later testified that he met\nwith Cruz-Ortiz about 25 to 30 times to purchase methamphetamine. 1 Another\nindividual, Julio Rogel Diaz, met with Cruz-Ortiz in a parking lot on\nSeptember 23, 2016, and was subsequently stopped by law enforcement with\nabout 700 grams of methamphetamine.\n Law enforcement officers also observed Jones meet with Cruz-Ortiz on\nseveral occasions. On both September 20 and September 28, 2016, Jones was\nseen briefly entering Cruz-Ortiz’s vehicle in a Target parking lot and leaving\nthe vehicle holding a bag. On the latter occasion, Jones drove from parking\n\n\n\n 1 Rehman also testified that he did not know Jones and had never seen him\nbefore trial.\n 2\n\f Case: 18-50086 Document: 00515019836 Page: 3 Date Filed: 07/02/2019\n\n\n\n No. 18-50086\nspot to parking spot for about an hour before Cruz-Ortiz arrived, but did not\nenter any stores. 2 Jones was not searched or arrested on either date, and law\nenforcement officers were unable to definitively ascertain the content of the\nbags. On October 6, 2016, Jones was again observed in the Target parking lot\nmoving from spot to spot, but he left without meeting anyone. Detective\nMichelle Langham, one of the case agents on the investigation, testified that\nshe believed Jones left because he spotted surveillance units.\n About six months later, on April 3, 2017, law enforcement officers—again\nacting on a tip from their confidential informant—conducted surveillance of\nthe parking lot of a Valero/Wag-A-Bag gas station. Detective Langham\ntestified that the surveillance team observed Jones arrive, pull up to the gas\npumps, drive back and forth in the area for about an hour, return to the\nparking lot, and meet up with Cruz-Ortiz’s vehicle. Both vehicles then drove\nout of the parking lot in tandem. Detective Langham acknowledged that she\ndid not observe any exchange of items between Jones and Cruz-Ortiz and she\ndid not stop Jones or seize any drugs on this date.\n The central events in this case occurred on May 3, 2017. Special Agent\nRoyce Clayborne received a tip from the confidential informant that a drug\ndeal would occur at the same Valero on May 3, 2017. A surveillance team set\nup in the area and observed Jones arrive and pull alongside a truck driven by\nsomeone they identified as Cruz-Ortiz’s roommate. Detective Langham\ntestified that Jones gestured to the other driver, and both vehicles drove off\ntogether. Officers followed the two vehicles as they left the gas station and\ntraveled down County Road 213, a lightly traveled rural road. The vehicles\nbriefly passed out of view. When Detective Langham drove by, she saw the two\n\n\n\n 2 Jones points to photographic evidence in the record that he did enter the\nTarget store on September 20, 2016.\n 3\n\f Case: 18-50086 Document: 00515019836 Page: 4 Date Filed: 07/02/2019\n\n\n\n No. 18-50086\nvehicles meet for less than a minute in a dirt pull-off on the side of the road\nand then drive off in different directions. Nobody saw any transaction or\nexchange of items between Jones and the other driver, and nobody observed\nJones in possession of a firearm. The individual believed to be Cruz-Ortiz’s\nroommate was not followed or stopped after this encounter.\n Officers instead followed Jones as he turned onto County Road 201.\nDetective Langham directed a sheriff’s deputy to stop Jones for a traffic\nviolation. Jones did not immediately stop when the deputy activated his\nemergency lights. Instead, Jones abruptly sped up and drove up to 90 miles\nper hour on a 40-mile-an-hour road for about a mile, passing out of view at\ncertain points. Law enforcement officers did not observe Jones throw anything\nfrom his truck but, when Jones finally stopped, the windows on both sides of\nhis truck were down. Officers arrested Jones and searched his truck, but found\nno drugs or firearms.\n With the assistance of canine units, law enforcement then searched both\nsides of County Road 201. After one to two hours of searching, officers found\nan unloaded pistol in a cactus patch on what would have been the passenger\nside of Jones’s vehicle, about a quarter of a mile from where Jones ultimately\nstopped. The pistol was wedged into a cactus and covered in dirt and cactus\npollen. Detective Langham testified that the pistol was not rusted and was not\ncovered by leaves or other objects, and she did not believe it had been there for\na long period of time. Officers also found a gun magazine nearby.\n A sheriff’s deputy driving to collect the gun noticed a Ziploc bag\napproximately a quarter of a mile from where the gun was found and on the\nopposite side of the road. The Ziploc, found next to a reusable plastic bag,\ncontained about 982 grams of methamphetamine. Detective Langham testified\nthat both the gun and the methamphetamine were found in an area where the\nsheriff’s deputy lost sight of Jones as he sped down the road. Detective\n 4\n\f Case: 18-50086 Document: 00515019836 Page: 5 Date Filed: 07/02/2019\n\n\n\n No. 18-50086\nLangham and Agent Clayborne testified that they had extensive experience in\ndrug investigations and had never randomly encountered a kilogram of\nmethamphetamine on the side of the road. Fingerprint analysis was conducted,\nbut there were no usable prints on the methamphetamine bag or the pistol,\nand the usable prints on the reusable plastic bag were either inconclusive or\ndid not match Jones.\n Jones was interrogated on the night of his arrest. He told a detective that\nhe did not intentionally flee the sheriff’s deputy but was instead attempting to\nget away from an individual who attempted to fight him at the Valero. Jones\nstated that he did not see the deputy or his blue lights. As Jones now\nacknowledges, this description of a fight at the Valero was inconsistent with\nwhat the surveillance team observed. Jones did not admit to possessing a\nfirearm or to possessing methamphetamine.\n B.\n Jones was subsequently charged with (1) possession with intent to\ndistribute 500 grams or more of methamphetamine, (2) conspiracy to possess\nwith intent to distribute 500 grams or more of methamphetamine, (3)\npossession of a firearm by a convicted felon, and (4) possession of a firearm in\nfurtherance of a drug trafficking crime. The government filed notice of its\nintent to introduce evidence of other crimes under Federal Rule of Evidence\n404(b), and Jones filed a motion to exclude this evidence. Jones also filed\npretrial motions to compel disclosure of the identity of the government’s\nconfidential informant and to exclude testimony related to the confidential\ninformant under Federal Rule of Evidence 403 and the Confrontation Clause\nof the Sixth Amendment. The district court denied the motion to disclose the\nconfidential informant, and stated that it was denying the motion to exclude\ntestimony “at this time prior to trial.” The court explained that “[t]he\ninformation, I suspect, is simply going to be a suspected drug transaction at\n 5\n\f Case: 18-50086 Document: 00515019836 Page: 6 Date Filed: 07/02/2019\n\n\n\n No. 18-50086\nthat address,” but noted that “[i]f the government is going to go further, the\ngovernment needs to tell counsel.”\n The case proceeded to a four-day jury trial. At trial, law enforcement\nofficers testified about their investigation into Cruz-Ortiz’s suspected\nmethamphetamine distribution and their surveillance of Cruz-Ortiz and\nJones. This testimony included multiple references to tips and other\ninformation received from the confidential informant. Jones objected to this\ntestimony on hearsay grounds. The district court sustained some objections,\nbut determined that other references to the confidential informant were\nadmissible to explain the officers’ actions rather than for the truth of the\nmatter asserted in the statements.\n Over Jones’s continued objection, the district court also admitted\nevidence of Jones’s prior judgment of conviction. The district court instructed\nthe jury that it could not consider the prior conviction as proof of the crimes\ncharged, except as to the charge for being a felon in possession of a firearm.\nThe district court further instructed the jury that, if it found beyond a\nreasonable doubt from other evidence that Jones committed the acts charged\nin the indictment, it could consider evidence of similar acts allegedly\ncommitted on other occasions to determine intent, motive, opportunity, plan,\nor absence of mistake.\n The district court denied Jones’s motion for a judgment of acquittal, and\nthe jury found Jones guilty on all four counts. The district court later denied a\npost-trial motion for judgment of acquittal or, alternatively, a new trial. Jones\nwas sentenced to a total of 300 months’ imprisonment, the mandatory\nminimum for his offenses. At the same sentencing hearing, the district court\nfound that Jones violated his supervised release on the 2010 federal conviction\nbecause of his new criminal conviction in this case. The district court sentenced\n\n\n 6\n\f Case: 18-50086 Document: 00515019836 Page: 7 Date Filed: 07/02/2019\n\n\n\n No. 18-50086\nJones to 18 months’ imprisonment on the revocation, to run consecutively to\nhis 300 month term.\n Jones now appeals his convictions and the revocation of his supervised\nrelease. He argues that (1) the district court erred by admitting evidence of his\nprior conviction, (2) testimony regarding the confidential informant violated\nhis rights under the Confrontation Clause, (3) the district court erred by not\nordering disclosure of the identity of the confidential informant, and (4) the\nevidence was insufficient to support the jury’s verdict on any of the four counts.\nJones further contends that his revocation judgment must be vacated because\nit was predicated on an invalid conviction. We address each argument in turn.\n II.\n Under Federal Rule of Evidence 404(b), evidence of a defendant’s past\ncrime “is not admissible to prove a person’s character,” but “may be admissible\nfor another purpose, such as proving motive, opportunity, intent, preparation,\nplan, knowledge, identity, absence of mistake, or lack of accident.” Jones\nproperly objected to the admission of his prior judgment of conviction. “We\nreview the district court’s admission of extrinsic offense evidence over a 404(b)\nobjection under a ‘heightened’ abuse of discretion standard.” United States v.\nJackson, 339 F.3d 349, 354 (5th Cir. 2003) (quoting United States v.\nWisenbaker, 14 F.3d 1022, 1028 (5th Cir. 1994)). The burden is on the\ngovernment to demonstrate “that a prior conviction is relevant and admissible\nunder 404(b).” United States v. Wallace, 759 F.3d 486, 494 (5th Cir. 2014).\n The admissibility of a prior conviction “under Rule 404(b) hinges on\nwhether (1) it is relevant to an issue other than the defendant’s character, and\n(2) it ‘possess[es] probative value that is not substantially outweighed by its\nundue prejudice’ under Federal Rule of Evidence 403.” United States v. Smith,\n804 F.3d 724, 735 (5th Cir. 2015) (quoting United States v. Beechum, 582 F.2d\n898, 911 (5th Cir. 1978) (en banc)). “We consider several factors in determining\n 7\n\f Case: 18-50086 Document: 00515019836 Page: 8 Date Filed: 07/02/2019\n\n\n\n No. 18-50086\nwhether the prejudicial effect of the extrinsic evidence substantially outweighs\nits probative value: (1) the government’s need for the extrinsic evidence, (2) the\nsimilarity between the extrinsic and charged offenses, (3) the amount of time\nseparating the two offenses, and (4) the court’s limiting instructions.” United\nStates v. Kinchen, 729 F.3d 466, 473 (5th Cir. 2013). We also “consider the\noverall prejudicial effect of the extrinsic evidence.” United States v. Juarez, 866\nF.3d 622, 627 (5th Cir. 2017).\n In this case, Jones was charged with being a felon in possession of a\nfirearm, and the evidence of his prior conviction was relevant and necessary to\nestablish an element of this offense, namely, that he was a felon. Jones does\nnot point to any stipulation in the record to a prior felony conviction and he\ndoes not explain how the government could have proven this element without\nintroducing his judgment of conviction. Nor does he argue that the district\ncourt should have severed the felon-in-possession charge from his other counts.\nAccordingly, the district court did not err in admitting Jones’s prior conviction\nas substantive evidence of the felon-in-possession charge. See United States v.\nTurner, 674 F.3d 420, 430 (5th Cir. 2012).\n Jones primarily argues that the government impermissibly used his\nprior conviction for purposes beyond establishing that he was a convicted felon.\nThe district court instructed the jury that, if it found beyond a reasonable\ndoubt that Jones committed the acts charged in the indictment, it could\nconsider his past similar acts for the limited purposes outlined in Rule 404(b),\nincluding whether Jones “had the state of mind or intent necessary to commit\nthe crime charged in the indictment.” “Extrinsic evidence has high probative\nvalue when intent is the key issue at trial.” Juarez, 866 F.3d at 627.\n Jones argues that the government’s need for this evidence was minimal\nbecause his “theory of defense was not based on an argument that he was an\nignorant participant in the alleged events.” Yet, in its order denying Jones’s\n 8\n\f Case: 18-50086 Document: 00515019836 Page: 9 Date Filed: 07/02/2019\n\n\n\n No. 18-50086\npost-trial motion, the district court explained that Jones placed his intent at\nissue by arguing that he lacked intent to engage in a drug conspiracy and may\nhave been meeting Cruz-Ortiz to obtain drugs for his personal use. See United\nStates v. Jimenez-Elvirez, 862 F.3d 527, 536–37 (5th Cir. 2017). Jones does not\naddress this finding by the district court. Notably, Jones’s closing argument\nhighlighted the district court’s instruction to the jury that mere presence at\nthe scene of an event or association with certain other persons is insufficient\nto prove a conspiracy. Further, the record does not indicate that Jones “offered\nany kind of ‘enforceable pre-trial assurances’ or any stipulation or concession\nregarding his intent.” United States v. Carrillo, 660 F.3d 914, 929 n.6 (5th Cir.\n2011) (citing United States v. McCall, 553 F.3d 821, 828 (5th Cir. 2008)). The\ngovernment therefore needed to prove Jones’s intent at trial.\n We are also satisfied that the district court properly weighed the other\nthree relevant factors. Jones’s past methamphetamine conspiracy conviction is\nidentical to one of the offenses charged in this case. We have observed that\n“[s]imilarity between the prior and charged offenses increases both the\nprobative value and prejudicial effect of extrinsic evidence” and requires the\ndistrict court to “assess the similarity of the offenses and weigh enhanced\nprobative value against the prejudice that almost certainly results when\nevidence of prior misconduct is admitted.” Juarez, 866 F.3d at 628 (quotations\nomitted); see also Jimenez-Elvirez, 862 F.3d at 536. Jones does not argue,\nhowever, that his past conviction is too similar to the offenses charged here.\nInstead, both on appeal and before the district court, Jones attempted to\ndistinguish his past criminal conduct as dissimilar from the conduct alleged in\nthis case. Yet minor factual differences between Jones’s past offense and the\nconduct alleged here do not render his past conviction non-probative.\n Further, although Jones’s prior conviction was seven years old, he was\nreleased from prison less than two years before his May 3, 2017, arrest and\n 9\n\f Case: 18-50086 Document: 00515019836 Page: 10 Date Filed: 07/02/2019\n\n\n\n No. 18-50086\nwas still on supervised release for that conviction. His conviction was not too\nremote in time to be probative. See United States v. Arnold, 467 F.3d 880, 885\n(5th Cir. 2006) (affirming use of past conviction that was nine years old).\nFinally, and critically, the district court gave the jury an appropriate limiting\ninstruction. See Wallace, 759 F.3d at 495. The government did not urge the\njury to disregard its instructions or consider the evidence for an improper\npurpose. 3\n “Even if all four factors weigh in the Government’s favor, we must still\nevaluate the district court’s decision under a ‘commonsense assessment of all\nthe circumstances surrounding the extrinsic offense.’” Juarez, 866 F.3d at 629\n(quoting Beechum, 582 F.2d at 914). Here, Jones’s judgment of conviction was\nadmissible to prove an element of one of his charged offenses. The additional\nprejudicial effect of permitting the jury to consider Jones’s prior conviction to\nhelp determine his intent was therefore diminished. Moreover, Jones’s past\nconviction was “not of a heinous or violent nature” and “was unlikely to incite\nthe jury to convict purely based on its emotional impact.” Id. at 630. Evidence\nof his past conviction was not “greater in magnitude than the crimes for which\n[Jones] was on trial, nor did [it] occupy more of the jury’s time than the\nevidence of the charged offenses.” United States v. Hernandez-Guevara, 162\nF.3d 863, 872 (5th Cir. 1998).\n Contrary to Jones’s arguments, affirming the use of his prior conviction\nin this case “does not render all prior narcotics convictions per se admissible in\na drug conspiracy case.” Wallace, 759 F.3d at 494; see also Carrillo, 660 F.3d\nat 929. We hold only that, under the specific circumstances of Jones’s trial, the\n\n\n\n 3 As explained below, the government did elicit testimony that it was common\nfor drug dealers to carry guns. But this testimony did not rely on Jones’s past drug conviction.\nRather, it was consistent with the government’s theory that Jones possessed the pistol while\npurchasing methamphetamine on May 3, 2017.\n 10\n\f Case: 18-50086 Document: 00515019836 Page: 11 Date Filed: 07/02/2019\n\n\n\n No. 18-50086\ndistrict court did not abuse its discretion in balancing the relevant factors and\nfinding the evidence relevant and admissible.\n III.\n We turn next to Jones’s challenge under the Confrontation Clause. The\nSixth Amendment provides a criminal defendant with the right “to be\nconfronted with the witnesses against him.” U.S. Const. Amend. VI. “[T]his\nbedrock procedural guarantee” protects against convictions based on out-of-\ncourt accusations that the defendant cannot test “in the crucible of cross-\nexamination.” Crawford v. Washington, 541 U.S. 36, 42, 61 (2004). To satisfy\nthe Confrontation Clause, “[t]estimonial statements of witnesses absent from\ntrial” may be “admitted only where the declarant is unavailable, and only\nwhere the defendant has had a prior opportunity to cross-examine.” Id. at 59.\nWe review preserved claims of Confrontation Clause error de novo, subject to\nharmless error analysis. See United States v. Kizzee, 877 F.3d 650, 656 (5th\nCir. 2017).\n A.\n Prior to and during trial, Jones made multiple objections to the\ngovernment’s use of information from its confidential informant. We focus our\nConfrontation Clause analysis on the following series of exchanges with Agent\nClayborne. The first occurred on direct examination:\n\n Prosecutor: [B]ased on the information you’d received, Coy Jones\n had received a large amount of methamphetamine?\n\n Defense: Objection. Hearsay.\n\n Prosecutor: I’ll withdraw the question.\n\n The Court: That objection is overruled.\n\n Prosecutor: I’ll withdraw the question, your Honor.\n\n 11\n\f Case: 18-50086 Document: 00515019836 Page: 12 Date Filed: 07/02/2019\n\n\n\n No. 18-50086\n The Court: All right.\n\n Prosecutor: Why did you follow Coy Jones as opposed to the other\n guy?\n\n Agent Clayborne: Well, we knew that Coy Jones had just received\n a large amount of methamphetamine.\n\n Prosecutor: And once you knew that he had received that\n methamphetamine, what did you do?\n\n Agent Clayborne: We were coordinating a traffic stop of the vehicle\n driven by Coy Jones, which is the white truck.\n\n Prosecutor: And why did you want to stop that vehicle?\n\n Agent Clayborne: Because it had methamphetamine, we wanted to\n seize it and arrest Coy Jones.\n\nOn cross-examination, defense counsel questioned Agent Clayborne regarding\nhis asserted knowledge that Jones had received methamphetamine:\n\n Defense: [Y]ou didn’t see any interaction between Mr. Jones and\n the silver truck, right?\n\n Agent Clayborne: That’s correct.\n\n Defense: But you testified that you knew Jones had received a\n large amount of methamphetamine.\n\n Agent Clayborne: That’s correct.\n\n Defense: But you didn’t know that, right? You hadn’t seen\n anything. You hadn’t seen an exchange of methamphetamine or\n money.\n\n Agent Clayborne: But I knew it was.\n\n Defense: You believed it, but you didn’t know it.\n\n Agent Clayborne: I knew it. I mean, if you’re asking me, I knew it.\n 12\n\f Case: 18-50086 Document: 00515019836 Page: 13 Date Filed: 07/02/2019\n\n\n\n No. 18-50086\nDefense counsel then moved on to other questions. On re-direct examination,\nthe government returned to the subject of Agent Clayborne’s knowledge of\nJones’s methamphetamine possession:\n\n Prosecutor: [Defense counsel] also asked you, let me characterize\n this, sort of confronted you about when you said you knew a drug\n deal had gone down, but you had not seen anything. Do you recall\n that?\n\n Agent Clayborne: That’s correct.\n\n Prosecutor: How did you know that a drug deal had, in fact,\n occurred?\n\n Agent Clayborne: So once we saw or the other units saw what\n looked like a drug deal, I made a phone call to my confidential\n source, who then made some phone calls himself and got back to me\n that the deal had happened. (emphasis added).\n\n Prosecutor: Based on that information, you decided to stop Coy\n Jones?\n\n Agent Clayborne: That’s correct.\n\nDefense counsel asked to approach the bench and renewed the motion for\ndisclosure of the confidential informant. Counsel argued that Agent Clayborne\ntestified about the content of what the informant said and that Jones had the\nright to confront the witnesses against him. The district court stated that the\ntestimony regarding the confidential informant came in response to defense\nquestions on cross-examination and that the defense opened the door to the\ntestimony. The court also denied Jones’s renewed motion to turn over reports\non the confidential informant.\n B.\n “Police officers cannot, through their trial testimony, refer to the\nsubstance of statements given to them by nontestifying witnesses in the course\n 13\n\f Case: 18-50086 Document: 00515019836 Page: 14 Date Filed: 07/02/2019\n\n\n\n No. 18-50086\nof their investigation, when those statements inculpate the defendant.” Taylor\nv. Cain, 545 F.3d 327, 335 (5th Cir. 2008). An officer’s testimony need not\nrepeat the absent witness’s exact statement to implicate the Confrontation\nClause. Rather, “[w]here an officer’s testimony leads to the clear and logical\ninference that out-of-court declarants believed and said that the defendant was\nguilty of the crime charged, Confrontation Clause protections are triggered.”\nKizzee, 877 F.3d at 657 (quotation omitted).\n Agent Clayborne testified that he knew that Jones had received a large\namount of methamphetamine because of what the confidential informant told\nhim he heard from others. The jury was not required to make any logical\ninferences, clear or otherwise, to link the informant’s statement (double\nhearsay) to Jones’s guilt of the charged offense of methamphetamine\npossession. The government reinforced this connection during both opening\nand closing statements. In opening remarks, the prosecutor described the May\n3, 2017, surveillance and stated: “Of course, the information the agents have\nat this point is that Coy Jones is now in possession of a large amount of\nmethamphetamine, so they follow Coy Jones.” In closing arguments, the\nprosecutor told the jury:\n And then, as you heard from Agent Clayborne when the defense\n asked him, how do you know the drug deal happened? Well, the\n informant told me. We called the informant and said, did the deal\n happen and he said, yep, it sure did. And that’s why they chose to\n follow Coy Jones because they knew he had the drugs.\n\nIn light of this testimony and argument, we differ with the government’s\nassertion that the informant’s statements did not directly identify Jones. Both\nAgent Clayborne and the prosecution “blatantly link[ed]” Jones to the drug\ndeal and “eliminated all doubt” as to who the informant was referring to. Gray\nv. Maryland, 523 U.S. 185, 193–94 (1998).\n\n\n 14\n\f Case: 18-50086 Document: 00515019836 Page: 15 Date Filed: 07/02/2019\n\n\n\n No. 18-50086\n The government does not dispute that the confidential informant’s\nstatements regarding the drug deal are inadmissible under the Confrontation\nClause as substantive evidence of Jones’s guilt. It argues instead that the\ninformant’s statements were not introduced for their truth, but simply to\nexplain the actions of law enforcement officers. The district court instructed\nthe jury that testimony regarding the confidential informant “was admitted\nonly to explain why law enforcement was conducting various surveillance\noperations,” and could not be used “as evidence the defendant, or anyone else,\nactually engaged in a drug transaction.”\n Testifying officers may refer to out-of-court statements to “provide\ncontext for their investigation or explain ‘background’ facts,” so long as the\n“out-of-court statements are not offered for the truth of the matter asserted\ntherein, but instead for another purpose: to explain the officer’s actions.”\nKizzee, 877 F.3d at 659. We have made clear that “[w]hen such evidence comes\ninto play, the prosecution must be circumspect in its use, and the trial court\nmust be vigilant in preventing its abuse.” United States v. Evans, 950 F.2d 187,\n191 (5th Cir. 1991); see also United States v. Sosa, 897 F.3d 615, 623 (5th Cir.\n2018) (“[C]ourts must be vigilant in ensuring that these attempts to ‘explain\nthe officer’s actions’ with out-of-court statements do not allow the backdoor\nintroduction of highly inculpatory statements that the jury may also consider\nfor their truth.”) (quoting Kizzee, 877 F.3d at 659).\n Such vigilance is necessary to preserve the core guarantees of the\nConfrontation Clause. A witness’s statement to police that the defendant is\nguilty of the crime charged is highly likely to influence the direction of a\ncriminal investigation. But a police officer cannot repeat such out-of-court\naccusations at trial, even if helpful to explain why the defendant became a\nsuspect or how the officer was able to obtain a search warrant. See Kizzee, 877\nF.3d at 659–60 (holding that a detective’s testimony that he was able to obtain\n 15\n\f Case: 18-50086 Document: 00515019836 Page: 16 Date Filed: 07/02/2019\n\n\n\n No. 18-50086\na search warrant for the defendant’s house after questioning a witness about\ndrug purchases violated the Confrontation Clause); Taylor, 545 F.3d at 331,\n336 (finding a violation of clearly established law when an officer testified that\nhe was able to develop a suspect after an unnamed individual told him “that\nthe perpetrator was Bruce”); United States v. Hernandez, 750 F.2d 1256, 1257\n(5th Cir. 1985) (rejecting argument that hearsay evidence identifying the\ndefendant as a drug smuggler was permissibly used “to explain the motivation\nbehind DEA’s investigation”).\n “Statements exceeding the limited need to explain an officer’s actions can\nviolate the Sixth Amendment—where a nontestifying witness specifically links\na defendant to the crime, testimony becomes inadmissible hearsay.” Kizzee,\n877 F.3d at 659; see also United States v. Vitale, 596 F.2d 688, 689 (5th Cir.\n1979) (explaining that testimony regarding a tip is permissible “provided that\nit is simply background information showing the police officers did not act\nwithout reason and, in addition, that it does not point specifically to the\ndefendant”). Because Agent Clayborne’s testimony about his conversation with\nthe confidential informant “point[ed] directly at the defendant and his guilt in\nthe crime charged,” it was not a permissible use of tipster evidence. Evans, 950\nF.2d at 191. Thus, the introduction of this statement at trial violated the\nConfrontation Clause. 4\n C.\n The government contends that, to the extent its use of the confidential\ninformant’s statements exceeded permissible non-hearsay purposes, Jones\n\n\n\n 4 In light of this holding, as well as less-developed briefing, we do not reach\nJones’s argument that other references to the confidential informant at trial also violated the\nConfrontation Clause. Instead, to the extent the district court may need to revisit these issues\nat a new trial, we reiterate our earlier admonitions that tipster evidence “exceeding the\nlimited need to explain an officer’s actions can violate the Sixth Amendment,” Kizzee, 877\nF.3d at 659, and “the prosecution must be circumspect in its use.” Evans, 950 F.2d at 191.\n 16\n\f Case: 18-50086 Document: 00515019836 Page: 17 Date Filed: 07/02/2019\n\n\n\n No. 18-50086\ninvited the error. This argument falls short for two independent reasons. First,\ndefense counsel did not ask Agent Clayborne how he knew that Jones had\nreceived the methamphetamine, and thus did not invite him to answer that\nquestion. Rather, the defense simply pointed out an inconsistency between\nAgent Clayborne’s testimony that he did not observe a drug transaction and\nhis confident assertion that he knew Jones had received the drugs. “We\nnarrowly construe counsel’s statements in applying the invited error doctrine.”\nUnited States v. Franklin, 838 F.3d 564, 567 n.1 (5th Cir. 2016). In this case it\nwas the prosecution, not the defense, that elicited the hearsay testimony by\nasking Agent Clayborne how he knew that the drug deal had occurred. Cf.\nUnited States v. Jimenez, 509 F.3d 682, 691 (5th Cir. 2007) (finding invited\nerror when the challenged “testimony was first elicited by Contreras’ own\nattorney on cross-examination after he repeatedly asked Delauney to explain\nthe basis for his suspicions about Contreras”). The government has pointed to\nno authority suggesting that the defense raising general doubts on cross-\nexamination about the basis of an officer’s knowledge permits the prosecution\nto directly elicit incriminating hearsay testimony on re-direct examination.\n Second, it is undisputed that defense counsel was not informed before\ntrial that the confidential informant provided law enforcement with after-the-\nfact information that the drug deal went through. For invited error to permit\n“waiver of the Sixth Amendment right to confrontation, a purposeful rather\nthan inadvertent inquiry into the forbidden matter must be shown.” United\nStates v. Taylor, 508 F.2d 761, 764 (5th Cir. 1975); see also United States v.\nSalazar, 751 F.3d 326, 332 (5th Cir. 2014) (“Invited error applies, however,\nonly where the error can be attributed to the actions of the defense.”). The Sixth\nAmendment guarantees defendants the right to confront all accusers, whether\npresent or absent at trial. See Crawford, 541 U.S. at 50–51. A defendant may\ncross-examine the government’s witnesses and probe seeming inconsistencies\n 17\n\f Case: 18-50086 Document: 00515019836 Page: 18 Date Filed: 07/02/2019\n\n\n\n No. 18-50086\nwithout risking the unwitting admission of incriminating hearsay. See Taylor,\n508 F.2d at 764 (finding no invited error when defense counsel “had no way to\nknow that asking about the sawed-off rifle would lead the witness into the\n[challenged] statement”). To hold otherwise would eviscerate the protections of\nthe Confrontation Clause by forcing defendants to choose between their right\nto vigorously cross-examine testifying witnesses and their right to confront\nout-of-court accusers.\n D.\n We may nonetheless affirm Jones’s conviction if the Confrontation\nClause error was harmless beyond a reasonable doubt. See United States v.\nAlvarado-Valdez, 521 F.3d 337, 341 (5th Cir. 2008); Chapman v. California,\n386 U.S. 18, 24 (1967). To meet this standard, the government bears the\nburden to show that there was “no reasonable possibility that the tainted\nevidence might have contributed to the jury’s verdict of guilty.” Lowery v.\nCollins, 988 F.2d 1364, 1373 (5th Cir. 1993). Here, the government points to\nother evidence of guilt, including surveillance of apparent drug transactions\nand Jones’s flight from police, and argues that the confidential informant’s\ntestimony “was not crucial” to its case. This is insufficient to satisfy the\ngovernment’s burden.\n Our harmlessness inquiry focuses “on the evidence that violated\n[Jones’s] confrontation right, not the sufficiency of the evidence remaining\nafter excision of the tainted evidence.” Id.; see also United States v. Dominguez\nBenitez, 542 U.S. 74, 81 n.7 (2004) (“When the Government has the burden of\naddressing prejudice, as in excusing preserved error as harmless on direct\nreview of the criminal conviction, it is not enough to negate an effect on the\noutcome of the case.”); Alvarado-Valdez, 521 F.3d at 342 (“Our focus is on the\npossibility of harm arising from [the] testimony and not necessarily on the\n\n\n 18\n\f Case: 18-50086 Document: 00515019836 Page: 19 Date Filed: 07/02/2019\n\n\n\n No. 18-50086\npossibility of its relationship to other evidence.”). 5 Here, the inadmissible\nevidence was highly incriminating. Jones was charged, among other counts,\nwith possession with the intent to distribute methamphetamine. He denied\npossessing the drugs. No drugs were found in his possession and no officer\nwitnessed a drug transaction on May 3, 2017. The informant’s statement,\nrevealed through Agent Clayborne’s testimony and emphasized during closing\narguments, directly implicated Jones in methamphetamine possession.\n We have repeatedly found harmful error under similar circumstances.\nSee Kizzee, 877 F.3d at 662 (finding that Confrontation Clause error was not\nharmless when testimony was referenced in closing arguments and “no other\nwitness in this case could provide testimony from personal knowledge that\nKizzee sold drugs”); Duron-Caldera, 737 F.3d at 996–97 (noting that the\ncontested affidavit undermined the defendant’s “sole defense,” and the\ngovernment relied on it in closing arguments); Taylor, 545 F.3d at 337 (holding\nthat Confrontation Clause error was not harmless “[i]n light of the dependency\nof the prosecution on a single witness’s less-than-certain identification,\ncombined with the use of tainted hearsay evidence both in testimony and in\nclosing argument asserting that the defendant was the ‘perpetrator’”);\nAlvarado-Valdez, 521 F.3d at 342–43 (“We cannot see how the government can\n\n\n\n 5 Our harmless error cases have also considered factors such as “the importance\nof the witness’ testimony in the prosecution’s case, whether the testimony was cumulative,\nthe presence or absence of evidence corroborating or contradicting the testimony of the\nwitness on material points, the extent of cross-examination otherwise permitted, and of\ncourse, the overall strength of the prosecution’s case.” United States v. Duron-Caldera, 737\nF.3d 988, 996 (5th Cir. 2013) (quotation omitted). Yet we have also explained that these\nfactors are primarily relevant in cases involving “Confrontation Clause violations arising\nfrom the denial of a defendant’s right to impeach a witness for bias.” Alvarado-Valdez, 521\nF.3d at 342 (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). This is not such a\ncase. In any event, our cases have consistently recognized that the government must show\n“no reasonable possibility that the evidence complained of might have contributed to the\nconviction.” Kizzee, 877 F.3d at 661 (quotation omitted); see also Duron-Caldera, 737 F.3d at\n996.\n 19\n\f Case: 18-50086 Document: 00515019836 Page: 20 Date Filed: 07/02/2019\n\n\n\n No. 18-50086\nconclusively show that the tainted evidence did not contribute to the\nconviction, because the government’s closing argument relied on that very\nevidence.”).\n Our recent decision in United States v. Sarli, 913 F.3d 491 (5th Cir.\n2019), is not to the contrary. In Sarli, the defendant was arrested with a large\namount of methamphetamine. Id. at 493. A detective testified that law\nenforcement arrested Sarli following a tip from a confidential informant, and\nthe prosecution mentioned this tip briefly in opening and closing arguments.\nId. at 498. Critically, “Sarli did not dispute that he carried drugs—but he did\ndispute that he knew he was carrying drugs.” Id. at 497. We determined that\nreferences to the confidential informant’s tip were harmless because “nothing\nin the confidential tip established whether Sarli was a knowing participant or\nan ignorant, gullible mule—and the prosecutor did not once suggest\notherwise.” Id. at 499. Here, by contrast, the informant’s purported\nconfirmation that a drug deal occurred directly inculpated Jones in the\ncontested element of possession.\n It is possible that the jury concluded that Jones possessed a large amount\nof methamphetamine based only on his meetings with Cruz-Ortiz, his highly\nsuspicious conduct on May 3, 2017, and the improbability that the\nmethamphetamine and pistol would be randomly discovered on the side of the\nroad. But it is also possible that any doubts about Jones’s guilt were dispelled\nby Agent Clayborne’s testimony, emphasized during closing arguments, that\nhe knew Jones possessed methamphetamine because of the information he\nreceived from the confidential informant. “Under these circumstances, there is\nno way to determine whether the jury would have convicted the defendant\npurely on the basis of the tainted testimony or of any of the other evidence.”\nUnited States v. Jackson, 636 F.3d 687, 697 (5th Cir. 2011) (quotation omitted).\n\n\n 20\n\f Case: 18-50086 Document: 00515019836 Page: 21 Date Filed: 07/02/2019\n\n\n\n No. 18-50086\n“That would require retrying the case on appeal, at best, or engaging in pure\nspeculation, at worst.” Alvarado-Valdez, 521 F.3d at 343.\n The government has therefore failed to meet its burden to show harmless\nerror as to Jones’s conviction for possession with intent to distribute 500 grams\nor more of methamphetamine. Two other counts of conviction—conspiracy to\npossess with intent to distribute 500 grams or more of methamphetamine and\npossession of a firearm in furtherance of a drug trafficking crime—are closely\nlinked to Jones’s alleged methamphetamine purchases and must similarly be\nreversed. Jones’s remaining count of conviction—possession of a firearm by a\nconvicted felon—does not directly relate to methamphetamine possession or\ndistribution. Yet, as the government itself argued in its briefing and at oral\nargument, the evidence of gun possession is deeply intertwined with Jones’s\nalleged methamphetamine dealing. The government elicited testimony at trial\nthat it is common for drug dealers to carry guns to protect themselves and their\nproduct. On appeal, the government contends that Jones’s involvement in drug\ntrafficking supports an inference that he possessed the discarded pistol. The\ngovernment has offered no argument that Jones’s felon-in-possession\nconviction can survive the reversal of his other counts of conviction. 6 Under\nthese circumstances, we cannot say that there is no “reasonable possibility that\nthe evidence complained of might have contributed to the conviction” for\nfirearm possession. Chapman, 386 U.S. at 24. We thus vacate the judgment of\nconviction on all counts and remand for a new trial.\n IV.\n Jones also appeals the denial of his motion to disclose the identity of the\nconfidential informant. We review a district court’s decision to deny disclosure\n\n\n 6 Indeed, the government candidly acknowledged at oral argument that it could\nbe more difficult to establish harmlessness as to the firearm counts than as to the\nmethamphetamine counts.\n 21\n\f Case: 18-50086 Document: 00515019836 Page: 22 Date Filed: 07/02/2019\n\n\n\n No. 18-50086\nof an informant’s identity for abuse of discretion. United States v. Ibarra, 493\nF.3d 526, 531 (5th Cir. 2007). There is “no fixed rule” in this area because “[t]he\nproblem is one that calls for balancing the public interest in protecting the flow\nof information against the individual’s right to prepare his defense.” Roviaro\nv. United States, 353 U.S. 53, 62 (1957). “We apply a three factor test to\ndetermine whether the identity of a confidential informant should be disclosed:\n‘(1) the level of the informant’s activity; (2) the helpfulness of the disclosure to\nthe asserted defense; and (3) the Government’s interest in nondisclosure.’”\nUnited States v. Ortega, 854 F.3d 818, 824 (5th Cir. 2017) (quoting Ibarra, 493\nF.3d at 531).\n In response to Jones’s request for disclosure, the government\nrepresented that the informant “just gave a tip,” “was not on the scene on any\nof this that will be the subject of trial,” and “would not be a fact witness.” The\ndistrict court held an ex parte hearing with the government and subsequently\ndenied Jones’s motion for disclosure of the confidential informant, citing safety\nconcerns and the government’s long relationship with the informant. We have\naffirmed the denial of a request for disclosure when the confidential informant\n“was a mere tipster,” the informant did not provide information that would aid\nthe defense, and disclosure posed risks to the safety of the informant and his\nfamily and could jeopardize other ongoing investigations. Ibarra, 493 F.3d at\n532.\n Upon review of the transcript of the ex parte hearing, we concur in the\ndistrict court’s assessment that disclosure of the informant’s identity could be\ndangerous for the informant and his family. It is not clear from the record,\nhowever, whether the district court fully considered the level of the informant’s\ninvolvement in the contested conduct and the potential helpfulness of\ndisclosure to Jones’s defense. These factors are closely tied to our\nConfrontation Clause analysis. As explained above, the government’s use of\n 22\n\f Case: 18-50086 Document: 00515019836 Page: 23 Date Filed: 07/02/2019\n\n\n\n No. 18-50086\nthe confidential informant at Jones’s trial exceeded the scope of a “mere\ntipster.” The government instead elicited testimony that the confidential\ninformant confirmed facts central to its case—that a drug deal occurred on May\n3, 2017, and that Jones received a large amount of methamphetamine in that\ntransaction.\n Jones argues that disclosure of the informant’s identity would have been\nhelpful to his defense because the informant could have been cross-examined\nregarding the benefits he received in exchange for assisting law enforcement\nas well as his own criminal history. This information was discussed during the\ndistrict court’s ex parte hearing with the government but was not disclosed to\nJones before trial. 7 The value of impeachment evidence depends on how a\nwitness is used at trial and whether the witness’s credibility is a relevant issue\nin the case. See, e.g., Giglio v. United States, 405 U.S. 150, 154–55 (1972). Here,\nthe government relied on the confidential informant’s representation that a\ndrug transaction was completed on May 3, 2017. Moreover, the government\nhighlighted the trustworthiness of the confidential informant during closing\narguments. The government noted that the informant had provided reliable\ninformation about Cruz-Ortiz on multiple occasions and that law enforcement\nofficers were “able to confirm what they’re being told by their informant, based\non the information he gives them.” The government also emphasized that the\ninformant was providing information about Cruz-Ortiz, not Jones, and “[i]t’s\nnot like the CI is trying to frame up Coy Jones.” Under these circumstances,\nan opportunity to challenge the informant’s motivations and credibility could\nhave been helpful to the defense.\n\n\n\n\n 7 Jones has not raised, and we do not address, whether the government had a\nseparate obligation to disclose impeachment information to the defense under Brady v.\nMaryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).\n 23\n\f Case: 18-50086 Document: 00515019836 Page: 24 Date Filed: 07/02/2019\n\n\n\n No. 18-50086\n Given our holding on Jones’s Confrontation Clause challenge, we expect\nthe government to make different use of the confidential informant at any new\ntrial. We thus remand to the district court to reconsider Jones’s motion for\ndisclosure in connection with a new trial.\n V.\n Jones further argues that, without the confidential informant’s\nimpermissible statements, there is not enough admissible evidence in the\nrecord to support his convictions. “In reviewing the sufficiency of the evidence,\nwe view the evidence and the inferences drawn therefrom in the light most\nfavorable to the verdict, and we determine whether a rational jury could have\nfound the defendant guilty beyond a reasonable doubt.” United States v.\nMitchell, 484 F.3d 762, 768 (5th Cir. 2007). The record reflects that the\nevidence was legally sufficient to support Jones’s convictions. The government\noffered substantial evidence that Cruz-Ortiz was involved in\nmethamphetamine distribution and that Jones had multiple meetings with\nCruz-Ortiz that resembled drug purchases. This evidence—combined with\nJones’s high-speed flight from the sheriff’s deputy, his false statements to\npolice after his arrest, and the discovery of a pistol and nearly a kilogram of\nmethamphetamine on the part of the road where Jones passed out of view—\ncould lead a reasonable jury to find Jones guilty beyond a reasonable doubt of\nthe offenses charged. Accordingly, we remand for a new trial rather than for\nentry of a judgment of acquittal. See Jackson, 636 F.3d at 697–98.\n VI.\n Finally, Jones appeals the revocation of his supervised release. The\ndistrict court found that Jones violated his supervised release because of his\nconviction in the jury trial. The court also found that this was a Grade A\nviolation as a matter of law. The government argues that, even if we set aside\nJones’s new conviction, the district court had enough information to justify\n 24\n\f Case: 18-50086 Document: 00515019836 Page: 25 Date Filed: 07/02/2019\n\n\n\n No. 18-50086\nrevoking Jones’s supervised release based on a preponderance of the evidence\npresented at trial. Although this may be true, the district court made no\nindependent factual findings as to Jones’s underlying criminal conduct and did\nnot provide any alternative grounds to justify revoking Jones’s supervised\nrelease. We therefore vacate and remand to the district court to reconsider\nwhether to revoke Jones’s supervised release and, if so, what sentence to\nimpose. See United States v. Jones, 484 F.3d 783, 793 (5th Cir. 2007).\n VII.\n The judgment of conviction is VACATED on all counts and this matter\nis REMANDED for further proceedings consistent with this opinion. The\njudgment of revocation is also VACATED and REMANDED.\n\n\n\n\n 25\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee v. Coy JONES, Defendant-Appellant United States of America, Plaintiff-Appellee v. Coy Marshall Jones, Defendant-Appellant\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-02\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-50086 Document: 00515019836 Page: 1 Date Filed: 07/02/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n United States Court of Appeals\\n\\n No. 18-50086\\n Fifth Circuit\\n\\n FILED\\n July 2, 2019\\n\\nUNITED STATES OF AMERICA, Lyle W. Cayce\\n Clerk\\n Plaintiff - Appellee\\n\\nv.\\n\\nCOY JONES,\\n\\n Defendant - Appellant\\n-------- ----------------------\\nConsolidated With\\nCase No. 18-50088\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee\\nv.\\n\\nCOY MARSHALL JONES,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.\\nSTEPHEN A. HIGGINSON, Circuit Judge:\\n Upon sua sponte panel rehearing, we withdraw our prior opinion, United\\nStates v. Jones, 924 F.3d 219 (5th Cir. 2019), and substitute the following:\\n\\f Case: 18-50086 Document: 00515019836 Page: 2 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\n Coy Jones was convicted by a jury of possessing and conspiring to possess\\nwith the intent to distribute methamphetamine, possessing a firearm as a\\nconvicted felon, and possessing a firearm in furtherance of a drug trafficking\\ncrime. We hold that Jones’s rights under the Confrontation Clause were\\nviolated when a law enforcement officer testified that he knew Jones had\\nreceived a large amount of methamphetamine because of what the officer was\\ntold by a confidential informant. This error was not invited by the defense and\\nwas not harmless. We therefore vacate Jones’s convictions and the related\\nrevocation of his supervised release and remand for further proceedings.\\n I.\\n A.\\n Jones was arrested in the course of an investigation into suspected large-\\nscale methamphetamine distribution by Eredy Cruz-Ortiz. Acting on tips from\\na confidential informant, law enforcement officers observed Cruz-Ortiz meet\\nwith various individuals in Austin-area parking lots between August 2016 and\\nMay 2017. On August 23, 2016, for instance, Cruz-Ortiz met with Imran\\nRehman to sell him methamphetamine. Rehman later testified that he met\\nwith Cruz-Ortiz about 25 to 30 times to purchase methamphetamine. 1 Another\\nindividual, Julio Rogel Diaz, met with Cruz-Ortiz in a parking lot on\\nSeptember 23, 2016, and was subsequently stopped by law enforcement with\\nabout 700 grams of methamphetamine.\\n Law enforcement officers also observed Jones meet with Cruz-Ortiz on\\nseveral occasions. On both September 20 and September 28, 2016, Jones was\\nseen briefly entering Cruz-Ortiz’s vehicle in a Target parking lot and leaving\\nthe vehicle holding a bag. On the latter occasion, Jones drove from parking\\n\\n\\n\\n 1 Rehman also testified that he did not know Jones and had never seen him\\nbefore trial.\\n 2\\n\\f Case: 18-50086 Document: 00515019836 Page: 3 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nspot to parking spot for about an hour before Cruz-Ortiz arrived, but did not\\nenter any stores. 2 Jones was not searched or arrested on either date, and law\\nenforcement officers were unable to definitively ascertain the content of the\\nbags. On October 6, 2016, Jones was again observed in the Target parking lot\\nmoving from spot to spot, but he left without meeting anyone. Detective\\nMichelle Langham, one of the case agents on the investigation, testified that\\nshe believed Jones left because he spotted surveillance units.\\n About six months later, on April 3, 2017, law enforcement officers—again\\nacting on a tip from their confidential informant—conducted surveillance of\\nthe parking lot of a Valero/Wag-A-Bag gas station. Detective Langham\\ntestified that the surveillance team observed Jones arrive, pull up to the gas\\npumps, drive back and forth in the area for about an hour, return to the\\nparking lot, and meet up with Cruz-Ortiz’s vehicle. Both vehicles then drove\\nout of the parking lot in tandem. Detective Langham acknowledged that she\\ndid not observe any exchange of items between Jones and Cruz-Ortiz and she\\ndid not stop Jones or seize any drugs on this date.\\n The central events in this case occurred on May 3, 2017. Special Agent\\nRoyce Clayborne received a tip from the confidential informant that a drug\\ndeal would occur at the same Valero on May 3, 2017. A surveillance team set\\nup in the area and observed Jones arrive and pull alongside a truck driven by\\nsomeone they identified as Cruz-Ortiz’s roommate. Detective Langham\\ntestified that Jones gestured to the other driver, and both vehicles drove off\\ntogether. Officers followed the two vehicles as they left the gas station and\\ntraveled down County Road 213, a lightly traveled rural road. The vehicles\\nbriefly passed out of view. When Detective Langham drove by, she saw the two\\n\\n\\n\\n 2 Jones points to photographic evidence in the record that he did enter the\\nTarget store on September 20, 2016.\\n 3\\n\\f Case: 18-50086 Document: 00515019836 Page: 4 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nvehicles meet for less than a minute in a dirt pull-off on the side of the road\\nand then drive off in different directions. Nobody saw any transaction or\\nexchange of items between Jones and the other driver, and nobody observed\\nJones in possession of a firearm. The individual believed to be Cruz-Ortiz’s\\nroommate was not followed or stopped after this encounter.\\n Officers instead followed Jones as he turned onto County Road 201.\\nDetective Langham directed a sheriff’s deputy to stop Jones for a traffic\\nviolation. Jones did not immediately stop when the deputy activated his\\nemergency lights. Instead, Jones abruptly sped up and drove up to 90 miles\\nper hour on a 40-mile-an-hour road for about a mile, passing out of view at\\ncertain points. Law enforcement officers did not observe Jones throw anything\\nfrom his truck but, when Jones finally stopped, the windows on both sides of\\nhis truck were down. Officers arrested Jones and searched his truck, but found\\nno drugs or firearms.\\n With the assistance of canine units, law enforcement then searched both\\nsides of County Road 201. After one to two hours of searching, officers found\\nan unloaded pistol in a cactus patch on what would have been the passenger\\nside of Jones’s vehicle, about a quarter of a mile from where Jones ultimately\\nstopped. The pistol was wedged into a cactus and covered in dirt and cactus\\npollen. Detective Langham testified that the pistol was not rusted and was not\\ncovered by leaves or other objects, and she did not believe it had been there for\\na long period of time. Officers also found a gun magazine nearby.\\n A sheriff’s deputy driving to collect the gun noticed a Ziploc bag\\napproximately a quarter of a mile from where the gun was found and on the\\nopposite side of the road. The Ziploc, found next to a reusable plastic bag,\\ncontained about 982 grams of methamphetamine. Detective Langham testified\\nthat both the gun and the methamphetamine were found in an area where the\\nsheriff’s deputy lost sight of Jones as he sped down the road. Detective\\n 4\\n\\f Case: 18-50086 Document: 00515019836 Page: 5 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nLangham and Agent Clayborne testified that they had extensive experience in\\ndrug investigations and had never randomly encountered a kilogram of\\nmethamphetamine on the side of the road. Fingerprint analysis was conducted,\\nbut there were no usable prints on the methamphetamine bag or the pistol,\\nand the usable prints on the reusable plastic bag were either inconclusive or\\ndid not match Jones.\\n Jones was interrogated on the night of his arrest. He told a detective that\\nhe did not intentionally flee the sheriff’s deputy but was instead attempting to\\nget away from an individual who attempted to fight him at the Valero. Jones\\nstated that he did not see the deputy or his blue lights. As Jones now\\nacknowledges, this description of a fight at the Valero was inconsistent with\\nwhat the surveillance team observed. Jones did not admit to possessing a\\nfirearm or to possessing methamphetamine.\\n B.\\n Jones was subsequently charged with (1) possession with intent to\\ndistribute 500 grams or more of methamphetamine, (2) conspiracy to possess\\nwith intent to distribute 500 grams or more of methamphetamine, (3)\\npossession of a firearm by a convicted felon, and (4) possession of a firearm in\\nfurtherance of a drug trafficking crime. The government filed notice of its\\nintent to introduce evidence of other crimes under Federal Rule of Evidence\\n404(b), and Jones filed a motion to exclude this evidence. Jones also filed\\npretrial motions to compel disclosure of the identity of the government’s\\nconfidential informant and to exclude testimony related to the confidential\\ninformant under Federal Rule of Evidence 403 and the Confrontation Clause\\nof the Sixth Amendment. The district court denied the motion to disclose the\\nconfidential informant, and stated that it was denying the motion to exclude\\ntestimony “at this time prior to trial.” The court explained that “[t]he\\ninformation, I suspect, is simply going to be a suspected drug transaction at\\n 5\\n\\f Case: 18-50086 Document: 00515019836 Page: 6 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nthat address,” but noted that “[i]f the government is going to go further, the\\ngovernment needs to tell counsel.”\\n The case proceeded to a four-day jury trial. At trial, law enforcement\\nofficers testified about their investigation into Cruz-Ortiz’s suspected\\nmethamphetamine distribution and their surveillance of Cruz-Ortiz and\\nJones. This testimony included multiple references to tips and other\\ninformation received from the confidential informant. Jones objected to this\\ntestimony on hearsay grounds. The district court sustained some objections,\\nbut determined that other references to the confidential informant were\\nadmissible to explain the officers’ actions rather than for the truth of the\\nmatter asserted in the statements.\\n Over Jones’s continued objection, the district court also admitted\\nevidence of Jones’s prior judgment of conviction. The district court instructed\\nthe jury that it could not consider the prior conviction as proof of the crimes\\ncharged, except as to the charge for being a felon in possession of a firearm.\\nThe district court further instructed the jury that, if it found beyond a\\nreasonable doubt from other evidence that Jones committed the acts charged\\nin the indictment, it could consider evidence of similar acts allegedly\\ncommitted on other occasions to determine intent, motive, opportunity, plan,\\nor absence of mistake.\\n The district court denied Jones’s motion for a judgment of acquittal, and\\nthe jury found Jones guilty on all four counts. The district court later denied a\\npost-trial motion for judgment of acquittal or, alternatively, a new trial. Jones\\nwas sentenced to a total of 300 months’ imprisonment, the mandatory\\nminimum for his offenses. At the same sentencing hearing, the district court\\nfound that Jones violated his supervised release on the 2010 federal conviction\\nbecause of his new criminal conviction in this case. The district court sentenced\\n\\n\\n 6\\n\\f Case: 18-50086 Document: 00515019836 Page: 7 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nJones to 18 months’ imprisonment on the revocation, to run consecutively to\\nhis 300 month term.\\n Jones now appeals his convictions and the revocation of his supervised\\nrelease. He argues that (1) the district court erred by admitting evidence of his\\nprior conviction, (2) testimony regarding the confidential informant violated\\nhis rights under the Confrontation Clause, (3) the district court erred by not\\nordering disclosure of the identity of the confidential informant, and (4) the\\nevidence was insufficient to support the jury’s verdict on any of the four counts.\\nJones further contends that his revocation judgment must be vacated because\\nit was predicated on an invalid conviction. We address each argument in turn.\\n II.\\n Under Federal Rule of Evidence 404(b), evidence of a defendant’s past\\ncrime “is not admissible to prove a person’s character,” but “may be admissible\\nfor another purpose, such as proving motive, opportunity, intent, preparation,\\nplan, knowledge, identity, absence of mistake, or lack of accident.” Jones\\nproperly objected to the admission of his prior judgment of conviction. “We\\nreview the district court’s admission of extrinsic offense evidence over a 404(b)\\nobjection under a ‘heightened’ abuse of discretion standard.” United States v.\\nJackson, 339 F.3d 349, 354 (5th Cir. 2003) (quoting United States v.\\nWisenbaker, 14 F.3d 1022, 1028 (5th Cir. 1994)). The burden is on the\\ngovernment to demonstrate “that a prior conviction is relevant and admissible\\nunder 404(b).” United States v. Wallace, 759 F.3d 486, 494 (5th Cir. 2014).\\n The admissibility of a prior conviction “under Rule 404(b) hinges on\\nwhether (1) it is relevant to an issue other than the defendant’s character, and\\n(2) it ‘possess[es] probative value that is not substantially outweighed by its\\nundue prejudice’ under Federal Rule of Evidence 403.” United States v. Smith,\\n804 F.3d 724, 735 (5th Cir. 2015) (quoting United States v. Beechum, 582 F.2d\\n898, 911 (5th Cir. 1978) (en banc)). “We consider several factors in determining\\n 7\\n\\f Case: 18-50086 Document: 00515019836 Page: 8 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nwhether the prejudicial effect of the extrinsic evidence substantially outweighs\\nits probative value: (1) the government’s need for the extrinsic evidence, (2) the\\nsimilarity between the extrinsic and charged offenses, (3) the amount of time\\nseparating the two offenses, and (4) the court’s limiting instructions.” United\\nStates v. Kinchen, 729 F.3d 466, 473 (5th Cir. 2013). We also “consider the\\noverall prejudicial effect of the extrinsic evidence.” United States v. Juarez, 866\\nF.3d 622, 627 (5th Cir. 2017).\\n In this case, Jones was charged with being a felon in possession of a\\nfirearm, and the evidence of his prior conviction was relevant and necessary to\\nestablish an element of this offense, namely, that he was a felon. Jones does\\nnot point to any stipulation in the record to a prior felony conviction and he\\ndoes not explain how the government could have proven this element without\\nintroducing his judgment of conviction. Nor does he argue that the district\\ncourt should have severed the felon-in-possession charge from his other counts.\\nAccordingly, the district court did not err in admitting Jones’s prior conviction\\nas substantive evidence of the felon-in-possession charge. See United States v.\\nTurner, 674 F.3d 420, 430 (5th Cir. 2012).\\n Jones primarily argues that the government impermissibly used his\\nprior conviction for purposes beyond establishing that he was a convicted felon.\\nThe district court instructed the jury that, if it found beyond a reasonable\\ndoubt that Jones committed the acts charged in the indictment, it could\\nconsider his past similar acts for the limited purposes outlined in Rule 404(b),\\nincluding whether Jones “had the state of mind or intent necessary to commit\\nthe crime charged in the indictment.” “Extrinsic evidence has high probative\\nvalue when intent is the key issue at trial.” Juarez, 866 F.3d at 627.\\n Jones argues that the government’s need for this evidence was minimal\\nbecause his “theory of defense was not based on an argument that he was an\\nignorant participant in the alleged events.” Yet, in its order denying Jones’s\\n 8\\n\\f Case: 18-50086 Document: 00515019836 Page: 9 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\npost-trial motion, the district court explained that Jones placed his intent at\\nissue by arguing that he lacked intent to engage in a drug conspiracy and may\\nhave been meeting Cruz-Ortiz to obtain drugs for his personal use. See United\\nStates v. Jimenez-Elvirez, 862 F.3d 527, 536–37 (5th Cir. 2017). Jones does not\\naddress this finding by the district court. Notably, Jones’s closing argument\\nhighlighted the district court’s instruction to the jury that mere presence at\\nthe scene of an event or association with certain other persons is insufficient\\nto prove a conspiracy. Further, the record does not indicate that Jones “offered\\nany kind of ‘enforceable pre-trial assurances’ or any stipulation or concession\\nregarding his intent.” United States v. Carrillo, 660 F.3d 914, 929 n.6 (5th Cir.\\n2011) (citing United States v. McCall, 553 F.3d 821, 828 (5th Cir. 2008)). The\\ngovernment therefore needed to prove Jones’s intent at trial.\\n We are also satisfied that the district court properly weighed the other\\nthree relevant factors. Jones’s past methamphetamine conspiracy conviction is\\nidentical to one of the offenses charged in this case. We have observed that\\n“[s]imilarity between the prior and charged offenses increases both the\\nprobative value and prejudicial effect of extrinsic evidence” and requires the\\ndistrict court to “assess the similarity of the offenses and weigh enhanced\\nprobative value against the prejudice that almost certainly results when\\nevidence of prior misconduct is admitted.” Juarez, 866 F.3d at 628 (quotations\\nomitted); see also Jimenez-Elvirez, 862 F.3d at 536. Jones does not argue,\\nhowever, that his past conviction is too similar to the offenses charged here.\\nInstead, both on appeal and before the district court, Jones attempted to\\ndistinguish his past criminal conduct as dissimilar from the conduct alleged in\\nthis case. Yet minor factual differences between Jones’s past offense and the\\nconduct alleged here do not render his past conviction non-probative.\\n Further, although Jones’s prior conviction was seven years old, he was\\nreleased from prison less than two years before his May 3, 2017, arrest and\\n 9\\n\\f Case: 18-50086 Document: 00515019836 Page: 10 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nwas still on supervised release for that conviction. His conviction was not too\\nremote in time to be probative. See United States v. Arnold, 467 F.3d 880, 885\\n(5th Cir. 2006) (affirming use of past conviction that was nine years old).\\nFinally, and critically, the district court gave the jury an appropriate limiting\\ninstruction. See Wallace, 759 F.3d at 495. The government did not urge the\\njury to disregard its instructions or consider the evidence for an improper\\npurpose. 3\\n “Even if all four factors weigh in the Government’s favor, we must still\\nevaluate the district court’s decision under a ‘commonsense assessment of all\\nthe circumstances surrounding the extrinsic offense.’” Juarez, 866 F.3d at 629\\n(quoting Beechum, 582 F.2d at 914). Here, Jones’s judgment of conviction was\\nadmissible to prove an element of one of his charged offenses. The additional\\nprejudicial effect of permitting the jury to consider Jones’s prior conviction to\\nhelp determine his intent was therefore diminished. Moreover, Jones’s past\\nconviction was “not of a heinous or violent nature” and “was unlikely to incite\\nthe jury to convict purely based on its emotional impact.” Id. at 630. Evidence\\nof his past conviction was not “greater in magnitude than the crimes for which\\n[Jones] was on trial, nor did [it] occupy more of the jury’s time than the\\nevidence of the charged offenses.” United States v. Hernandez-Guevara, 162\\nF.3d 863, 872 (5th Cir. 1998).\\n Contrary to Jones’s arguments, affirming the use of his prior conviction\\nin this case “does not render all prior narcotics convictions per se admissible in\\na drug conspiracy case.” Wallace, 759 F.3d at 494; see also Carrillo, 660 F.3d\\nat 929. We hold only that, under the specific circumstances of Jones’s trial, the\\n\\n\\n\\n 3 As explained below, the government did elicit testimony that it was common\\nfor drug dealers to carry guns. But this testimony did not rely on Jones’s past drug conviction.\\nRather, it was consistent with the government’s theory that Jones possessed the pistol while\\npurchasing methamphetamine on May 3, 2017.\\n 10\\n\\f Case: 18-50086 Document: 00515019836 Page: 11 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\ndistrict court did not abuse its discretion in balancing the relevant factors and\\nfinding the evidence relevant and admissible.\\n III.\\n We turn next to Jones’s challenge under the Confrontation Clause. The\\nSixth Amendment provides a criminal defendant with the right “to be\\nconfronted with the witnesses against him.” U.S. Const. Amend. VI. “[T]his\\nbedrock procedural guarantee” protects against convictions based on out-of-\\ncourt accusations that the defendant cannot test “in the crucible of cross-\\nexamination.” Crawford v. Washington, 541 U.S. 36, 42, 61 (2004). To satisfy\\nthe Confrontation Clause, “[t]estimonial statements of witnesses absent from\\ntrial” may be “admitted only where the declarant is unavailable, and only\\nwhere the defendant has had a prior opportunity to cross-examine.” Id. at 59.\\nWe review preserved claims of Confrontation Clause error de novo, subject to\\nharmless error analysis. See United States v. Kizzee, 877 F.3d 650, 656 (5th\\nCir. 2017).\\n A.\\n Prior to and during trial, Jones made multiple objections to the\\ngovernment’s use of information from its confidential informant. We focus our\\nConfrontation Clause analysis on the following series of exchanges with Agent\\nClayborne. The first occurred on direct examination:\\n\\n Prosecutor: [B]ased on the information you’d received, Coy Jones\\n had received a large amount of methamphetamine?\\n\\n Defense: Objection. Hearsay.\\n\\n Prosecutor: I’ll withdraw the question.\\n\\n The Court: That objection is overruled.\\n\\n Prosecutor: I’ll withdraw the question, your Honor.\\n\\n 11\\n\\f Case: 18-50086 Document: 00515019836 Page: 12 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\n The Court: All right.\\n\\n Prosecutor: Why did you follow Coy Jones as opposed to the other\\n guy?\\n\\n Agent Clayborne: Well, we knew that Coy Jones had just received\\n a large amount of methamphetamine.\\n\\n Prosecutor: And once you knew that he had received that\\n methamphetamine, what did you do?\\n\\n Agent Clayborne: We were coordinating a traffic stop of the vehicle\\n driven by Coy Jones, which is the white truck.\\n\\n Prosecutor: And why did you want to stop that vehicle?\\n\\n Agent Clayborne: Because it had methamphetamine, we wanted to\\n seize it and arrest Coy Jones.\\n\\nOn cross-examination, defense counsel questioned Agent Clayborne regarding\\nhis asserted knowledge that Jones had received methamphetamine:\\n\\n Defense: [Y]ou didn’t see any interaction between Mr. Jones and\\n the silver truck, right?\\n\\n Agent Clayborne: That’s correct.\\n\\n Defense: But you testified that you knew Jones had received a\\n large amount of methamphetamine.\\n\\n Agent Clayborne: That’s correct.\\n\\n Defense: But you didn’t know that, right? You hadn’t seen\\n anything. You hadn’t seen an exchange of methamphetamine or\\n money.\\n\\n Agent Clayborne: But I knew it was.\\n\\n Defense: You believed it, but you didn’t know it.\\n\\n Agent Clayborne: I knew it. I mean, if you’re asking me, I knew it.\\n 12\\n\\f Case: 18-50086 Document: 00515019836 Page: 13 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nDefense counsel then moved on to other questions. On re-direct examination,\\nthe government returned to the subject of Agent Clayborne’s knowledge of\\nJones’s methamphetamine possession:\\n\\n Prosecutor: [Defense counsel] also asked you, let me characterize\\n this, sort of confronted you about when you said you knew a drug\\n deal had gone down, but you had not seen anything. Do you recall\\n that?\\n\\n Agent Clayborne: That’s correct.\\n\\n Prosecutor: How did you know that a drug deal had, in fact,\\n occurred?\\n\\n Agent Clayborne: So once we saw or the other units saw what\\n looked like a drug deal, I made a phone call to my confidential\\n source, who then made some phone calls himself and got back to me\\n that the deal had happened. (emphasis added).\\n\\n Prosecutor: Based on that information, you decided to stop Coy\\n Jones?\\n\\n Agent Clayborne: That’s correct.\\n\\nDefense counsel asked to approach the bench and renewed the motion for\\ndisclosure of the confidential informant. Counsel argued that Agent Clayborne\\ntestified about the content of what the informant said and that Jones had the\\nright to confront the witnesses against him. The district court stated that the\\ntestimony regarding the confidential informant came in response to defense\\nquestions on cross-examination and that the defense opened the door to the\\ntestimony. The court also denied Jones’s renewed motion to turn over reports\\non the confidential informant.\\n B.\\n “Police officers cannot, through their trial testimony, refer to the\\nsubstance of statements given to them by nontestifying witnesses in the course\\n 13\\n\\f Case: 18-50086 Document: 00515019836 Page: 14 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nof their investigation, when those statements inculpate the defendant.” Taylor\\nv. Cain, 545 F.3d 327, 335 (5th Cir. 2008). An officer’s testimony need not\\nrepeat the absent witness’s exact statement to implicate the Confrontation\\nClause. Rather, “[w]here an officer’s testimony leads to the clear and logical\\ninference that out-of-court declarants believed and said that the defendant was\\nguilty of the crime charged, Confrontation Clause protections are triggered.”\\nKizzee, 877 F.3d at 657 (quotation omitted).\\n Agent Clayborne testified that he knew that Jones had received a large\\namount of methamphetamine because of what the confidential informant told\\nhim he heard from others. The jury was not required to make any logical\\ninferences, clear or otherwise, to link the informant’s statement (double\\nhearsay) to Jones’s guilt of the charged offense of methamphetamine\\npossession. The government reinforced this connection during both opening\\nand closing statements. In opening remarks, the prosecutor described the May\\n3, 2017, surveillance and stated: “Of course, the information the agents have\\nat this point is that Coy Jones is now in possession of a large amount of\\nmethamphetamine, so they follow Coy Jones.” In closing arguments, the\\nprosecutor told the jury:\\n And then, as you heard from Agent Clayborne when the defense\\n asked him, how do you know the drug deal happened? Well, the\\n informant told me. We called the informant and said, did the deal\\n happen and he said, yep, it sure did. And that’s why they chose to\\n follow Coy Jones because they knew he had the drugs.\\n\\nIn light of this testimony and argument, we differ with the government’s\\nassertion that the informant’s statements did not directly identify Jones. Both\\nAgent Clayborne and the prosecution “blatantly link[ed]” Jones to the drug\\ndeal and “eliminated all doubt” as to who the informant was referring to. Gray\\nv. Maryland, 523 U.S. 185, 193–94 (1998).\\n\\n\\n 14\\n\\f Case: 18-50086 Document: 00515019836 Page: 15 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\n The government does not dispute that the confidential informant’s\\nstatements regarding the drug deal are inadmissible under the Confrontation\\nClause as substantive evidence of Jones’s guilt. It argues instead that the\\ninformant’s statements were not introduced for their truth, but simply to\\nexplain the actions of law enforcement officers. The district court instructed\\nthe jury that testimony regarding the confidential informant “was admitted\\nonly to explain why law enforcement was conducting various surveillance\\noperations,” and could not be used “as evidence the defendant, or anyone else,\\nactually engaged in a drug transaction.”\\n Testifying officers may refer to out-of-court statements to “provide\\ncontext for their investigation or explain ‘background’ facts,” so long as the\\n“out-of-court statements are not offered for the truth of the matter asserted\\ntherein, but instead for another purpose: to explain the officer’s actions.”\\nKizzee, 877 F.3d at 659. We have made clear that “[w]hen such evidence comes\\ninto play, the prosecution must be circumspect in its use, and the trial court\\nmust be vigilant in preventing its abuse.” United States v. Evans, 950 F.2d 187,\\n191 (5th Cir. 1991); see also United States v. Sosa, 897 F.3d 615, 623 (5th Cir.\\n2018) (“[C]ourts must be vigilant in ensuring that these attempts to ‘explain\\nthe officer’s actions’ with out-of-court statements do not allow the backdoor\\nintroduction of highly inculpatory statements that the jury may also consider\\nfor their truth.”) (quoting Kizzee, 877 F.3d at 659).\\n Such vigilance is necessary to preserve the core guarantees of the\\nConfrontation Clause. A witness’s statement to police that the defendant is\\nguilty of the crime charged is highly likely to influence the direction of a\\ncriminal investigation. But a police officer cannot repeat such out-of-court\\naccusations at trial, even if helpful to explain why the defendant became a\\nsuspect or how the officer was able to obtain a search warrant. See Kizzee, 877\\nF.3d at 659–60 (holding that a detective’s testimony that he was able to obtain\\n 15\\n\\f Case: 18-50086 Document: 00515019836 Page: 16 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\na search warrant for the defendant’s house after questioning a witness about\\ndrug purchases violated the Confrontation Clause); Taylor, 545 F.3d at 331,\\n336 (finding a violation of clearly established law when an officer testified that\\nhe was able to develop a suspect after an unnamed individual told him “that\\nthe perpetrator was Bruce”); United States v. Hernandez, 750 F.2d 1256, 1257\\n(5th Cir. 1985) (rejecting argument that hearsay evidence identifying the\\ndefendant as a drug smuggler was permissibly used “to explain the motivation\\nbehind DEA’s investigation”).\\n “Statements exceeding the limited need to explain an officer’s actions can\\nviolate the Sixth Amendment—where a nontestifying witness specifically links\\na defendant to the crime, testimony becomes inadmissible hearsay.” Kizzee,\\n877 F.3d at 659; see also United States v. Vitale, 596 F.2d 688, 689 (5th Cir.\\n1979) (explaining that testimony regarding a tip is permissible “provided that\\nit is simply background information showing the police officers did not act\\nwithout reason and, in addition, that it does not point specifically to the\\ndefendant”). Because Agent Clayborne’s testimony about his conversation with\\nthe confidential informant “point[ed] directly at the defendant and his guilt in\\nthe crime charged,” it was not a permissible use of tipster evidence. Evans, 950\\nF.2d at 191. Thus, the introduction of this statement at trial violated the\\nConfrontation Clause. 4\\n C.\\n The government contends that, to the extent its use of the confidential\\ninformant’s statements exceeded permissible non-hearsay purposes, Jones\\n\\n\\n\\n 4 In light of this holding, as well as less-developed briefing, we do not reach\\nJones’s argument that other references to the confidential informant at trial also violated the\\nConfrontation Clause. Instead, to the extent the district court may need to revisit these issues\\nat a new trial, we reiterate our earlier admonitions that tipster evidence “exceeding the\\nlimited need to explain an officer’s actions can violate the Sixth Amendment,” Kizzee, 877\\nF.3d at 659, and “the prosecution must be circumspect in its use.” Evans, 950 F.2d at 191.\\n 16\\n\\f Case: 18-50086 Document: 00515019836 Page: 17 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\ninvited the error. This argument falls short for two independent reasons. First,\\ndefense counsel did not ask Agent Clayborne how he knew that Jones had\\nreceived the methamphetamine, and thus did not invite him to answer that\\nquestion. Rather, the defense simply pointed out an inconsistency between\\nAgent Clayborne’s testimony that he did not observe a drug transaction and\\nhis confident assertion that he knew Jones had received the drugs. “We\\nnarrowly construe counsel’s statements in applying the invited error doctrine.”\\nUnited States v. Franklin, 838 F.3d 564, 567 n.1 (5th Cir. 2016). In this case it\\nwas the prosecution, not the defense, that elicited the hearsay testimony by\\nasking Agent Clayborne how he knew that the drug deal had occurred. Cf.\\nUnited States v. Jimenez, 509 F.3d 682, 691 (5th Cir. 2007) (finding invited\\nerror when the challenged “testimony was first elicited by Contreras’ own\\nattorney on cross-examination after he repeatedly asked Delauney to explain\\nthe basis for his suspicions about Contreras”). The government has pointed to\\nno authority suggesting that the defense raising general doubts on cross-\\nexamination about the basis of an officer’s knowledge permits the prosecution\\nto directly elicit incriminating hearsay testimony on re-direct examination.\\n Second, it is undisputed that defense counsel was not informed before\\ntrial that the confidential informant provided law enforcement with after-the-\\nfact information that the drug deal went through. For invited error to permit\\n“waiver of the Sixth Amendment right to confrontation, a purposeful rather\\nthan inadvertent inquiry into the forbidden matter must be shown.” United\\nStates v. Taylor, 508 F.2d 761, 764 (5th Cir. 1975); see also United States v.\\nSalazar, 751 F.3d 326, 332 (5th Cir. 2014) (“Invited error applies, however,\\nonly where the error can be attributed to the actions of the defense.”). The Sixth\\nAmendment guarantees defendants the right to confront all accusers, whether\\npresent or absent at trial. See Crawford, 541 U.S. at 50–51. A defendant may\\ncross-examine the government’s witnesses and probe seeming inconsistencies\\n 17\\n\\f Case: 18-50086 Document: 00515019836 Page: 18 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nwithout risking the unwitting admission of incriminating hearsay. See Taylor,\\n508 F.2d at 764 (finding no invited error when defense counsel “had no way to\\nknow that asking about the sawed-off rifle would lead the witness into the\\n[challenged] statement”). To hold otherwise would eviscerate the protections of\\nthe Confrontation Clause by forcing defendants to choose between their right\\nto vigorously cross-examine testifying witnesses and their right to confront\\nout-of-court accusers.\\n D.\\n We may nonetheless affirm Jones’s conviction if the Confrontation\\nClause error was harmless beyond a reasonable doubt. See United States v.\\nAlvarado-Valdez, 521 F.3d 337, 341 (5th Cir. 2008); Chapman v. California,\\n386 U.S. 18, 24 (1967). To meet this standard, the government bears the\\nburden to show that there was “no reasonable possibility that the tainted\\nevidence might have contributed to the jury’s verdict of guilty.” Lowery v.\\nCollins, 988 F.2d 1364, 1373 (5th Cir. 1993). Here, the government points to\\nother evidence of guilt, including surveillance of apparent drug transactions\\nand Jones’s flight from police, and argues that the confidential informant’s\\ntestimony “was not crucial” to its case. This is insufficient to satisfy the\\ngovernment’s burden.\\n Our harmlessness inquiry focuses “on the evidence that violated\\n[Jones’s] confrontation right, not the sufficiency of the evidence remaining\\nafter excision of the tainted evidence.” Id.; see also United States v. Dominguez\\nBenitez, 542 U.S. 74, 81 n.7 (2004) (“When the Government has the burden of\\naddressing prejudice, as in excusing preserved error as harmless on direct\\nreview of the criminal conviction, it is not enough to negate an effect on the\\noutcome of the case.”); Alvarado-Valdez, 521 F.3d at 342 (“Our focus is on the\\npossibility of harm arising from [the] testimony and not necessarily on the\\n\\n\\n 18\\n\\f Case: 18-50086 Document: 00515019836 Page: 19 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\npossibility of its relationship to other evidence.”). 5 Here, the inadmissible\\nevidence was highly incriminating. Jones was charged, among other counts,\\nwith possession with the intent to distribute methamphetamine. He denied\\npossessing the drugs. No drugs were found in his possession and no officer\\nwitnessed a drug transaction on May 3, 2017. The informant’s statement,\\nrevealed through Agent Clayborne’s testimony and emphasized during closing\\narguments, directly implicated Jones in methamphetamine possession.\\n We have repeatedly found harmful error under similar circumstances.\\nSee Kizzee, 877 F.3d at 662 (finding that Confrontation Clause error was not\\nharmless when testimony was referenced in closing arguments and “no other\\nwitness in this case could provide testimony from personal knowledge that\\nKizzee sold drugs”); Duron-Caldera, 737 F.3d at 996–97 (noting that the\\ncontested affidavit undermined the defendant’s “sole defense,” and the\\ngovernment relied on it in closing arguments); Taylor, 545 F.3d at 337 (holding\\nthat Confrontation Clause error was not harmless “[i]n light of the dependency\\nof the prosecution on a single witness’s less-than-certain identification,\\ncombined with the use of tainted hearsay evidence both in testimony and in\\nclosing argument asserting that the defendant was the ‘perpetrator’”);\\nAlvarado-Valdez, 521 F.3d at 342–43 (“We cannot see how the government can\\n\\n\\n\\n 5 Our harmless error cases have also considered factors such as “the importance\\nof the witness’ testimony in the prosecution’s case, whether the testimony was cumulative,\\nthe presence or absence of evidence corroborating or contradicting the testimony of the\\nwitness on material points, the extent of cross-examination otherwise permitted, and of\\ncourse, the overall strength of the prosecution’s case.” United States v. Duron-Caldera, 737\\nF.3d 988, 996 (5th Cir. 2013) (quotation omitted). Yet we have also explained that these\\nfactors are primarily relevant in cases involving “Confrontation Clause violations arising\\nfrom the denial of a defendant’s right to impeach a witness for bias.” Alvarado-Valdez, 521\\nF.3d at 342 (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). This is not such a\\ncase. In any event, our cases have consistently recognized that the government must show\\n“no reasonable possibility that the evidence complained of might have contributed to the\\nconviction.” Kizzee, 877 F.3d at 661 (quotation omitted); see also Duron-Caldera, 737 F.3d at\\n996.\\n 19\\n\\f Case: 18-50086 Document: 00515019836 Page: 20 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nconclusively show that the tainted evidence did not contribute to the\\nconviction, because the government’s closing argument relied on that very\\nevidence.”).\\n Our recent decision in United States v. Sarli, 913 F.3d 491 (5th Cir.\\n2019), is not to the contrary. In Sarli, the defendant was arrested with a large\\namount of methamphetamine. Id. at 493. A detective testified that law\\nenforcement arrested Sarli following a tip from a confidential informant, and\\nthe prosecution mentioned this tip briefly in opening and closing arguments.\\nId. at 498. Critically, “Sarli did not dispute that he carried drugs—but he did\\ndispute that he knew he was carrying drugs.” Id. at 497. We determined that\\nreferences to the confidential informant’s tip were harmless because “nothing\\nin the confidential tip established whether Sarli was a knowing participant or\\nan ignorant, gullible mule—and the prosecutor did not once suggest\\notherwise.” Id. at 499. Here, by contrast, the informant’s purported\\nconfirmation that a drug deal occurred directly inculpated Jones in the\\ncontested element of possession.\\n It is possible that the jury concluded that Jones possessed a large amount\\nof methamphetamine based only on his meetings with Cruz-Ortiz, his highly\\nsuspicious conduct on May 3, 2017, and the improbability that the\\nmethamphetamine and pistol would be randomly discovered on the side of the\\nroad. But it is also possible that any doubts about Jones’s guilt were dispelled\\nby Agent Clayborne’s testimony, emphasized during closing arguments, that\\nhe knew Jones possessed methamphetamine because of the information he\\nreceived from the confidential informant. “Under these circumstances, there is\\nno way to determine whether the jury would have convicted the defendant\\npurely on the basis of the tainted testimony or of any of the other evidence.”\\nUnited States v. Jackson, 636 F.3d 687, 697 (5th Cir. 2011) (quotation omitted).\\n\\n\\n 20\\n\\f Case: 18-50086 Document: 00515019836 Page: 21 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\n“That would require retrying the case on appeal, at best, or engaging in pure\\nspeculation, at worst.” Alvarado-Valdez, 521 F.3d at 343.\\n The government has therefore failed to meet its burden to show harmless\\nerror as to Jones’s conviction for possession with intent to distribute 500 grams\\nor more of methamphetamine. Two other counts of conviction—conspiracy to\\npossess with intent to distribute 500 grams or more of methamphetamine and\\npossession of a firearm in furtherance of a drug trafficking crime—are closely\\nlinked to Jones’s alleged methamphetamine purchases and must similarly be\\nreversed. Jones’s remaining count of conviction—possession of a firearm by a\\nconvicted felon—does not directly relate to methamphetamine possession or\\ndistribution. Yet, as the government itself argued in its briefing and at oral\\nargument, the evidence of gun possession is deeply intertwined with Jones’s\\nalleged methamphetamine dealing. The government elicited testimony at trial\\nthat it is common for drug dealers to carry guns to protect themselves and their\\nproduct. On appeal, the government contends that Jones’s involvement in drug\\ntrafficking supports an inference that he possessed the discarded pistol. The\\ngovernment has offered no argument that Jones’s felon-in-possession\\nconviction can survive the reversal of his other counts of conviction. 6 Under\\nthese circumstances, we cannot say that there is no “reasonable possibility that\\nthe evidence complained of might have contributed to the conviction” for\\nfirearm possession. Chapman, 386 U.S. at 24. We thus vacate the judgment of\\nconviction on all counts and remand for a new trial.\\n IV.\\n Jones also appeals the denial of his motion to disclose the identity of the\\nconfidential informant. We review a district court’s decision to deny disclosure\\n\\n\\n 6 Indeed, the government candidly acknowledged at oral argument that it could\\nbe more difficult to establish harmlessness as to the firearm counts than as to the\\nmethamphetamine counts.\\n 21\\n\\f Case: 18-50086 Document: 00515019836 Page: 22 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nof an informant’s identity for abuse of discretion. United States v. Ibarra, 493\\nF.3d 526, 531 (5th Cir. 2007). There is “no fixed rule” in this area because “[t]he\\nproblem is one that calls for balancing the public interest in protecting the flow\\nof information against the individual’s right to prepare his defense.” Roviaro\\nv. United States, 353 U.S. 53, 62 (1957). “We apply a three factor test to\\ndetermine whether the identity of a confidential informant should be disclosed:\\n‘(1) the level of the informant’s activity; (2) the helpfulness of the disclosure to\\nthe asserted defense; and (3) the Government’s interest in nondisclosure.’”\\nUnited States v. Ortega, 854 F.3d 818, 824 (5th Cir. 2017) (quoting Ibarra, 493\\nF.3d at 531).\\n In response to Jones’s request for disclosure, the government\\nrepresented that the informant “just gave a tip,” “was not on the scene on any\\nof this that will be the subject of trial,” and “would not be a fact witness.” The\\ndistrict court held an ex parte hearing with the government and subsequently\\ndenied Jones’s motion for disclosure of the confidential informant, citing safety\\nconcerns and the government’s long relationship with the informant. We have\\naffirmed the denial of a request for disclosure when the confidential informant\\n“was a mere tipster,” the informant did not provide information that would aid\\nthe defense, and disclosure posed risks to the safety of the informant and his\\nfamily and could jeopardize other ongoing investigations. Ibarra, 493 F.3d at\\n532.\\n Upon review of the transcript of the ex parte hearing, we concur in the\\ndistrict court’s assessment that disclosure of the informant’s identity could be\\ndangerous for the informant and his family. It is not clear from the record,\\nhowever, whether the district court fully considered the level of the informant’s\\ninvolvement in the contested conduct and the potential helpfulness of\\ndisclosure to Jones’s defense. These factors are closely tied to our\\nConfrontation Clause analysis. As explained above, the government’s use of\\n 22\\n\\f Case: 18-50086 Document: 00515019836 Page: 23 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nthe confidential informant at Jones’s trial exceeded the scope of a “mere\\ntipster.” The government instead elicited testimony that the confidential\\ninformant confirmed facts central to its case—that a drug deal occurred on May\\n3, 2017, and that Jones received a large amount of methamphetamine in that\\ntransaction.\\n Jones argues that disclosure of the informant’s identity would have been\\nhelpful to his defense because the informant could have been cross-examined\\nregarding the benefits he received in exchange for assisting law enforcement\\nas well as his own criminal history. This information was discussed during the\\ndistrict court’s ex parte hearing with the government but was not disclosed to\\nJones before trial. 7 The value of impeachment evidence depends on how a\\nwitness is used at trial and whether the witness’s credibility is a relevant issue\\nin the case. See, e.g., Giglio v. United States, 405 U.S. 150, 154–55 (1972). Here,\\nthe government relied on the confidential informant’s representation that a\\ndrug transaction was completed on May 3, 2017. Moreover, the government\\nhighlighted the trustworthiness of the confidential informant during closing\\narguments. The government noted that the informant had provided reliable\\ninformation about Cruz-Ortiz on multiple occasions and that law enforcement\\nofficers were “able to confirm what they’re being told by their informant, based\\non the information he gives them.” The government also emphasized that the\\ninformant was providing information about Cruz-Ortiz, not Jones, and “[i]t’s\\nnot like the CI is trying to frame up Coy Jones.” Under these circumstances,\\nan opportunity to challenge the informant’s motivations and credibility could\\nhave been helpful to the defense.\\n\\n\\n\\n\\n 7 Jones has not raised, and we do not address, whether the government had a\\nseparate obligation to disclose impeachment information to the defense under Brady v.\\nMaryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).\\n 23\\n\\f Case: 18-50086 Document: 00515019836 Page: 24 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\n Given our holding on Jones’s Confrontation Clause challenge, we expect\\nthe government to make different use of the confidential informant at any new\\ntrial. We thus remand to the district court to reconsider Jones’s motion for\\ndisclosure in connection with a new trial.\\n V.\\n Jones further argues that, without the confidential informant’s\\nimpermissible statements, there is not enough admissible evidence in the\\nrecord to support his convictions. “In reviewing the sufficiency of the evidence,\\nwe view the evidence and the inferences drawn therefrom in the light most\\nfavorable to the verdict, and we determine whether a rational jury could have\\nfound the defendant guilty beyond a reasonable doubt.” United States v.\\nMitchell, 484 F.3d 762, 768 (5th Cir. 2007). The record reflects that the\\nevidence was legally sufficient to support Jones’s convictions. The government\\noffered substantial evidence that Cruz-Ortiz was involved in\\nmethamphetamine distribution and that Jones had multiple meetings with\\nCruz-Ortiz that resembled drug purchases. This evidence—combined with\\nJones’s high-speed flight from the sheriff’s deputy, his false statements to\\npolice after his arrest, and the discovery of a pistol and nearly a kilogram of\\nmethamphetamine on the part of the road where Jones passed out of view—\\ncould lead a reasonable jury to find Jones guilty beyond a reasonable doubt of\\nthe offenses charged. Accordingly, we remand for a new trial rather than for\\nentry of a judgment of acquittal. See Jackson, 636 F.3d at 697–98.\\n VI.\\n Finally, Jones appeals the revocation of his supervised release. The\\ndistrict court found that Jones violated his supervised release because of his\\nconviction in the jury trial. The court also found that this was a Grade A\\nviolation as a matter of law. The government argues that, even if we set aside\\nJones’s new conviction, the district court had enough information to justify\\n 24\\n\\f Case: 18-50086 Document: 00515019836 Page: 25 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-50086\\nrevoking Jones’s supervised release based on a preponderance of the evidence\\npresented at trial. Although this may be true, the district court made no\\nindependent factual findings as to Jones’s underlying criminal conduct and did\\nnot provide any alternative grounds to justify revoking Jones’s supervised\\nrelease. We therefore vacate and remand to the district court to reconsider\\nwhether to revoke Jones’s supervised release and, if so, what sentence to\\nimpose. See United States v. Jones, 484 F.3d 783, 793 (5th Cir. 2007).\\n VII.\\n The judgment of conviction is VACATED on all counts and this matter\\nis REMANDED for further proceedings consistent with this opinion. The\\njudgment of revocation is also VACATED and REMANDED.\\n\\n\\n\\n\\n 25\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2978,"cells":{"id":{"kind":"number","value":4636215,"string":"4,636,215"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"State of Nevada v. LABR"},"decision_date":{"kind":"string","value":"2019-07-02"},"docket_number":{"kind":"string","value":"18-40246"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before JOLLY, DENNIS, and HIGGINSON, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"JAMES L. DENNIS, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-40246 Document: 00515020033 Page: 1 Date Filed: 07/02/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 18-40246 FILED\\n July 2, 2019\\n Lyle W. Cayce\\nSTATE OF TEXAS Clerk\\n\\n Plaintiff - Appellee\\n\\n\\nCHIPOTLE MEXICAN GRILL, INCORPORATED; CHIPOTLE SERVICES,\\nL.L.C.,\\n\\n Petitioners - Appellees\\n\\nv.\\n\\nUNITED STATES DEPARTMENT OF LABOR\\n\\n Defendant\\n\\n\\nCARMEN ALVAREZ, and her Counsel,\\n\\n Respondent - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Texas\\n\\n\\nBefore JOLLY, DENNIS, and HIGGINSON, Circuit Judges.\\nJAMES L. DENNIS, Circuit Judge:\\n In November 2016, the United States District Court for the Eastern\\nDistrict of Texas (the Texas federal court) enjoined the Department of Labor’s\\n\\f Case: 18-40246 Document: 00515020033 Page: 2 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-40246\\n(DOL) proposed Fair Labor Standards Act (FLSA) Overtime Rule 1 and\\nspecifically enjoined the DOL from implementing and enforcing that proposed\\nrule, pending further order of that court. The proposed Overtime Rule raised\\nthe salary threshold of executive, administrative, or professional employees\\nexempted from the FLSA’s requirement that employers provide overtime pay.\\nIn June 2017, Carmen Alvarez, a restaurant worker in New Jersey, sued her\\nformer employer, Chipotle Mexican Grill, Inc. and Chipotle Services, L.L.C.\\n(Chipotle), in the United States District Court for the District of New Jersey\\n(the New Jersey federal court) for unpaid overtime pay, relying on the proposed\\nOvertime Rule. In her suit, Alvarez contended that, because Texas federal\\ncourt’s injunction did not stay the effective date of the proposed Overtime Rule,\\nthe rule and its higher salary level for exempt employees became effective and\\nAlvarez, whose salary was below that level, was entitled to overtime pay as a\\nnon-exempt employee.\\n One week after filing its answer in the New Jersey federal court,\\nChipotle moved in the Texas federal court to hold Alvarez and her attorneys in\\ncontempt. 2 After a hearing, the Texas federal court held Alvarez and her\\ncounsel in contempt, reasoning that they were bound by the November 2016\\ninjunction because they had acted in privity with the DOL and therefore their\\nlawsuit and allegations against Chipotle in the New Jersey federal court were\\nin violation of the injunction. The court also assessed attorneys’ fees against\\nthem. Alvarez and her attorneys appealed.\\n The issue is whether the Texas federal court may hold Carmen Alvarez\\nand her lawyers in contempt for filing the FLSA lawsuit against Chipotle in\\n\\n 1 The Overtime Rule is also referred to as the Final Rule by the parties, and was\\npublished in the Federal Register as follows: Defining and Delimiting the Exemptions for\\nExecutive, Administrative, Professional, Outside Sales and Computer Employees, 81 Fed.\\nReg. 32,391-01, 32,393 (May 23, 2016) (to be codified at 29 C.F.R. pt. 541).\\n 2 Chipotle filed its answer in the New Jersey federal court on July 26, 2017 and its\\n\\nmotion for contempt in the Texas federal court on August 1, 2017.\\n 2\\n\\f Case: 18-40246 Document: 00515020033 Page: 3 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-40246\\nthe New Jersey federal court and contending that she was entitled to overtime\\npay according to the proposed Overtime Rule. We conclude that Texas federal\\ncourt did not have the authority under Rule 65(d) of the Federal Rules of Civil\\nProcedure to hold Alvarez and her attorneys in contempt, because Alvarez and\\nher attorneys did not act in privity with, and she was not adequately\\nrepresented by, the DOL in the injunction case; hence, the Texas federal court\\nlacked personal jurisdiction over Alvarez and her attorneys. Accordingly, we\\nreverse the judgment of the District Court, including the award of attorneys’\\nfees against Alvarez and her lawyers, and we render judgment in their favor.\\n I. BACKGROUND\\n A. The Nevada v. DOL Injunction\\n On November 22, 2016, in Nevada v. United States Dep’t of Labor, 218\\nF. Supp. 3d 520, 524–25 (E.D. Tex. 2016), the Texas federal court entered a\\npreliminary injunction against the DOL and its agents in favor of Nevada and\\ntwenty other states, 3 enjoining the Overtime Rule and the DOL from enforcing\\nor implementing the rule. Specifically, the Overtime Rule proposed to\\nsubstantially expand the class of employees entitled to overtime pay by raising\\nthe salary threshold by which executive, administrative, and professional\\nemployees are exempted from the right to overtime pay under the FLSA.\\n B. The Alvarez v. Chipotle Action (The New Jersey Action)\\n In June 2017, six months after the district court’s preliminary injunction\\nin Nevada v. DOL, Carmen Alvarez, through her lawyers (together with\\nAlvarez, Respondents), filed a lawsuit against Chipotle, her former employer,\\n\\n 3 The injunction, in relevant part, read as follows:\\n [T]he Department’s Final Rule described at 81 Fed. Reg. 32,391\\n is hereby enjoined. Specifically, Defendants are enjoined from\\n implementing and enforcing the following regulations as\\n amended by 81 Fed. Reg. 32,391; 29 C.F.R. §§ 541.100, 541.200,\\n 541.204, 541.300, 541.400, 541.600, 541.602, 541.604, 541.605,\\n and 541.607 pending further order of this Court.\\n\\n 3\\n\\f Case: 18-40246 Document: 00515020033 Page: 4 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-40246\\nin New Jersey federal court alleging Chipotle violated the Overtime Rule by\\nclassifying Alvarez as exempt despite her weekly salary falling below the\\nrevised higher threshold. Alvarez’s pleadings acknowledged that the DOL had\\nbeen enjoined from enforcing or implementing the Overtime Rule, but\\ncontended that, because the district court in Nevada v. DOL had not stayed\\nthe Overtime Rule’s effective date under the Administrative Procedure Act, the\\nrule itself had taken effect on December 1, 2016. Chipotle answered that, in\\nits view, the Nevada v. DOL order prevented the Overtime Rule from ever\\nbecoming effective in any way. 4 The New Jersey action has been stayed\\npending disposition of this appeal. 5\\n C. The Present Contempt Proceeding by Chipotle Against\\n Alvarez and Her Counsel\\n On August 1, 2017, Chipotle filed a motion against Respondents in the\\nTexas federal court in the Nevada v. DOL action, asking that court to hold\\nthem in contempt for violating the injunction issued in that case. 6 Other than\\nfiling an answer in the New Jersey action, Chipotle did not further engage in\\nthat litigation. 7 Chipotle contended in its contempt motion that Alvarez was\\nbound by the injunction because the DOL had adequately represented her\\ninterests in that litigation, making her its privy, and that the court should hold\\nher and her lawyers in contempt for alleging and invoking the Overtime Rule\\nin the New Jersey action. Respondents argued that the Texas federal court\\nlacked personal jurisdiction over them; that the Nevada v. DOL injunction did\\nnot bind them under Rule 65(d) of the Federal Rules of Civil Procedure because\\n\\n\\n 4 Answer and Affirmative and Other Defenses, Alvarez v. Chipotle Mex. Grill, Inc., et\\nal., No. 2:17-cv-4095 (D.N.J. July 26, 2017), ECF No. 5.\\n 5 Order Granting Stay, No. 2:17-cv-4095 (D.N.J. May 8, 2018), ECF No. 37.\\n 6 At the time of Alvarez’s New Jersey action and Chipotle’s contempt motion, the\\n\\nTexas federal court had not yet entered a final judgment in the Nevada v. DOL litigation. It\\ndid so later in August 2017, declaring the Overtime Rule “invalid.”\\n 7 See Answer ¶¶ 22-23, Alvarez v. Chipotle, No. 2:17-cv-4095 (D.N.J. July 26, 2017),\\n\\nECF No. 5.\\n 4\\n\\f Case: 18-40246 Document: 00515020033 Page: 5 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-40246\\nthey were not in privity with the DOL or otherwise subject to the terms of Rule\\n65(d); and that the terms of the injunction did not foreclose the filing of private\\nFLSA lawsuits. Respondents submitted uncontradicted declarations attesting\\nthat they had not in any way participated, coordinated, or acted in concert with\\nthe federal defendants in the Nevada v. DOL case.\\n On March 19, 2018, the district court granted Chipotle’s motion and held\\nRespondents in contempt. In its opinion, the district court rejected\\nRespondents’ argument that it lacked personal jurisdiction over them. It\\nconcluded that Alvarez was bound by the injunction in privity with the DOL\\nbecause the DOL represents the interests of employees like Alvarez; that its\\ninjunction was “wholly unambiguous” in proscribing the filing of private\\nlawsuits alleging or invoking the Overtime Rule; and that, although Chipotle’s\\nservice of process on Respondents was imperfect, Respondents had not proven\\nthey were prejudiced thereby. The court ordered that Respondents pay\\nChipotle’s attorneys’ fees for the contempt proceeding. 8 Respondents timely\\nappealed, 9 contending that the Texas federal court’s injunction did not bind\\nthem in any way.\\n II. STANDARD OF REVIEW\\n We review a district court’s contempt determination for abuse of\\ndiscretion. See Piggly Wiggly Clarksville, Inc. v. Mrs. Baird’s Bakeries, 177\\nF.3d 380, 382 (5th Cir. 1999). Thus, “[t]he district court’s underlying findings\\nof fact are reviewed for clear error and its underlying conclusions of law\\nreviewed de novo.” Am. Airlines, Inc. v. Allied Pilots Ass’n, 228 F.3d 574, 578\\n(5th Cir. 2000). The district court’s ultimate finding that privity existed\\n\\n 8 The district court refused to limit the contempt finding to senior attorneys with\\ndecisionmaking authority but imposed it on junior attorneys and local counsel as well.\\n 9 As to nonparties, a contempt order constitutes a final order for purposes of appellate\\n\\njurisdiction. See S. Ry. Co. v. Lanham, 403 F.2d 119, 124 (5th Cir. 1968) (“[A]n adjudication\\nof civil contempt is final and appealable as to a non-party who would be unable to appeal\\nfrom the final decision on the merits”).\\n 5\\n\\f Case: 18-40246 Document: 00515020033 Page: 6 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-40246\\nbetween Respondents and the DOL is a legal conclusion that we review de\\nnovo. See Drummond Co. v. Dist. 20, United Mine Workers of Am., 598 F.2d\\n381, 385 (5th Cir. 1979) (“While the district court’s findings of facts . . . will be\\nreviewed under the clearly erroneous standard, the interpretation of the scope\\nof the injunctive orders is a question of law to be determined by the\\nindependent judgment of this Court.”). Similarly, we review legal conclusions\\nsurrounding a determination of personal jurisdiction de novo, while reviewing\\nunderlying factual findings for clear error. See In re Chinese-Manufactured\\nDrywall Products Liab. Litig., 753 F.3d 521, 528–29 (5th Cir. 2014).\\n III. DISCUSSION\\n A. The District Court Erred in Concluding that Respondents\\n Acted in Privity with the DOL\\n We consider here the proper reach of an injunction—specifically, the\\nextent to which an injunction can bind individuals who are not parties to the\\naction in which the injunction is entered. “‘It is a principle of general\\napplication . . . that one is not bound by a judgment in personam in a litigation\\nin which he is not designated as a party or to which he has not been made a\\nparty by service of process.’” Taylor v. Sturgell, 553 U.S. 880, 884 (2008)\\n(quoting Hansberry v. Lee, 311 U.S. 32, 40 (1940)); Zenith Radio Corp. v.\\nHazeltine Research, Inc., 395 U.S. 100, 110 (1969) (“It is elementary that one\\nis not bound by a judgment in personam resulting from litigation in which he\\nis not designated as a party or to which he has not been made a party by service\\nof process.”); see also Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860,\\n865–66 (5th Cir. 1985) (“An underlying principle is that ‘[i]t is a violation of\\ndue process for a judgment [in a prior suit] to be binding on a litigant who was\\nnot a party or a privy and therefore has never had an opportunity to be heard.’”\\n(quoting Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 327 n.7 (1979))).\\nThis principle derives from the “‘deep-rooted historic tradition that everyone\\n\\n\\n 6\\n\\f Case: 18-40246 Document: 00515020033 Page: 7 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-40246\\nshould have his own day in court.’” Taylor, 553 U.S. at 892–93 (quoting\\nRichards v. Jefferson Cty., 517 U.S. 793, 798 (1996)). The central exception to\\nthis principle limiting the effect of judgments to parties is where nonparties\\nhave actual notice of an injunction and aid and abet or act in concert with a\\nnamed defendant or as the defendant’s privy in violating the injunction. See\\nWRIGHT, MILLER & KANE, 11A FED. PRAC. & PROC. CIV. § 2956, at 384–85 (3d\\ned. 2013); see also Richards, 517 U.S. at 798 (“Of course, these principles do\\nnot always require one to have been a party to a judgment in order to be bound\\nby it. Most notably, there is an exception when it can be said that there is\\n‘privity’ between a party to the second case and a party who is bound by an\\nearlier judgment.”); Nat’l Spiritual Assembly of Baha’is of U.S. Under\\nHereditary Guardianship, Inc. v. Nat’l Spiritual Assembly of Baha’is of U.S.,\\nInc., 628 F.3d 837, 847 (7th Cir. 2010).\\n “Rule 65(d) of the Federal Rules of Civil Procedure, which governs\\ninjunctions and temporary restraining orders, codifies both the general\\nprinciple and its exceptions.” Nat’l Spiritual Assembly of Baha’is, 628 F.3d at\\n847; see Regal Knitwear Co. v. N.L.R.B., 324 U.S. 9, 14 (1945) (noting that Rule\\n65(d) “is derived from the commonlaw doctrine that a decree of injunction not\\nonly binds the parties defendant but also those identified with them in interest,\\nin privity with them, represented by them or subject to their control” (internal\\nquotation omitted)); 11A FED. PRAC. & PROC. CIV. § 2956, at 382 (“Rule 65(d)(2)\\ndoes not really add or detract from the range of persons that were bound by a\\ndecree under basic equity practice and due-process principles applied on the\\nequity side of the federal courts prior to 1938.”).\\n Rule 65(d)(2) provides that an injunction “binds only the following who\\nreceive actual notice of it by personal service or otherwise: (A) the parties; (B)\\nthe parties’ officers, agents, servants, employees, and attorneys; and (C) other\\npersons who are in active concert or participation with anyone described in\\n\\n 7\\n\\f Case: 18-40246 Document: 00515020033 Page: 8 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-40246\\nRule 65(d)(2)(A) or (B).” FED. R. CIV. P. 65(d)(2). The portion of the rule stating\\nits only significant exception, subpart (C), contemplates two categories of\\npersons who may be bound by an injunction. See 11A FED. PRAC. & PROC. CIV.\\n§ 2956, at 384–85. First, “a nonparty may be held in contempt if he aids or\\nabets an enjoined party in violating an injunction”; second, “an injunction may\\nbe enforced against a nonparty in ‘privity’ with an enjoined party.” Nat’l\\nSpiritual Assembly of Baha’is, 628 F.3d at 848–49; 11A FED. PRAC. & PROC.\\nCIV. § 2956, at 384–85 (citing, inter alia, Am. Airlines, Inc. v. Allied Pilots\\nAss’n, 53 F. Supp. 2d 909 (N.D. Tex. 1999), aff’d, 228 F.3d 574 (5th Cir. 2000)).\\n For privity, “[f]ederal courts have deemed” three “types of relationships\\n‘sufficiently close’ to justify preclusion”: (1) “a non-party who has succeeded to\\na party’s interest in property,” (2) “a non-party who controlled the original\\nsuit,” and (3) “a non-party whose interests were represented adequately by a\\nparty in the original suit.” Sw. Airlines Co. v. Tex. Int’l Airlines, Inc., 546 F.2d\\n84, 95 (5th Cir. 1977). As to the third type, adequate representation does not\\nexist where a nonparty is merely interested in the same issue or same set of\\nfacts, “or because the issue being litigated is one that might affect their\\ninterests by providing a judicial precedent that would be applied in a\\nsubsequent action.” 11A FED. PRAC. & PROC. CIV. § 2956, at 390 (citing Int’l\\nBhd. of Teamsters v. Keystone Freight Lines, 123 F.2d 326 (10th Cir. 1941);\\nBaltz v. The Fair, 178 F. Supp. 691, 693 (N.D. Ill. 1959), aff’d, 279 F.2d 899\\n(7th Cir. 1960)). “Similarly, the mere fact that a person has committed the\\nenjoined act does not necessarily mean that the injunction should be enforced\\nagainst that person.” 11A FED. PRAC. & PROC. CIV. § 2956, at 390. Ultimately,\\na determination that privity exists “represents a legal conclusion that the\\nrelationship between the one who is a party on the record and the non-party is\\nsufficiently close.” Sw. Airlines, 546 F.2d at 95; Freeman, 771 F.2d at 864; see\\n\\n\\n\\n 8\\n\\f Case: 18-40246 Document: 00515020033 Page: 9 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-40246\\nalso Nat’l Spiritual Assembly of Baha’is, 628 F.3d at 849 (noting same in the\\ncontext of enforcing an injunction).\\n Here, the first two subparts of Rule 65(d)(2), as well as the “aiding and\\nabetting” theory, are undisputedly inapplicable. Respondents are clearly not\\nparties to the Nevada v. DOL case; nor are they any “parties’ officers, agents,\\nservants, employees, and attorneys.” FED. R. CIV. P. 65(d)(2)(A)–(B).\\nFurthermore, although they had notice of the injunction, as demonstrated by\\nthe references in the complaint in the New Jersey action, it is uncontested that\\nRespondents did not aid and abet, or otherwise assist or act in concert with,\\nthe DOL or any of the its agents to violate the injunction. In holding\\nRespondents in contempt, the district court relied on the concept of adequate\\nrepresentation, holding that the DOL adequately represented Alvarez’s\\ninterests in the Nevada v. DOL litigation. However, the district court’s\\nassessment that the DOL adequately represented Alvarez’s interests was\\nmistaken. We have held that privity by virtue of adequate representation\\nrequires “the existence of an express or implied legal relationship in which\\nparties to the first suit are accountable to non-parties who file a subsequent\\nsuit raising identical issues,” Pollard v. Cockrell, 578 F.2d 1002, 1008 (5th Cir.\\n1978), and that “a showing of parallel interests” alone is insufficient, Freeman,\\n771 F.2d at 864; see also Benson & Ford, Inc. v. Wanda Petroleum Co., 833 F.2d\\n1172, 1175 (5th Cir. 1987). There is no evidence of such an express or implied\\nlegal relationship between Alvarez and the DOL here.\\n In erroneously finding Respondents in privity with the DOL, the district\\ncourt relied exclusively on this court’s preclusion decision in Southwest Airlines\\nCo. v. Texas International Airlines, Inc., 546 F.2d 84 (5th Cir. 1977). However,\\nthe holding of preclusion in Southwest Airlines is inapposite here. The\\nSouthwest Airlines litigation began when the Cities of Dallas and Fort Worth\\nand the Dallas/Fort Worth Regional Airport Board (the DFW Airport Board)\\n\\n 9\\n\\f Case: 18-40246 Document: 00515020033 Page: 10 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-40246\\nfiled a federal declaratory judgment action to exclude Southwest, an intrastate\\nairline carrier, from using Love Field in Dallas, under a bond ordinance calling\\nfor the phase-out of commercial air service at that airport. See Southwest\\nAirlines, 546 F.2d at 87. Southwest counterclaimed for a declaratory judgment\\nof its right to remain at Love Field. Id. The district court declared that the\\ncities and the DFW Airport Board could not lawfully exclude Southwest from\\nusing Love Field. Id. at 88. The Fifth Circuit affirmed. Id. (citing City of\\nDallas v. Sw. Airlines Co., 494 F.2d 773, 776–77 (5th Cir. 1974)). Several\\ninterstate airlines next filed claims in Texas state court seeking to compel\\nSouthwest to cease using Love Field. Id. At Southwest’s behest, the federal\\ndistrict court then preliminarily enjoined the state suit, thereby precluding the\\ncities, the DFW Airport Board and the interstate airlines from relitigating in\\nstate court or in any other court, Southwest’s right of access to Love Field. Id.\\nat 89.\\n In affirming the district court’s order enjoining the state suit, this court\\nheld that the interstate airline plaintiffs were in privity with the governmental\\nentities—the cities of Dallas and Fort Worth, and the DFW Airport Board—in\\nthe prior federal suit for preclusion purposes because the “legal interests of the\\ncarriers do not differ from those of [the government entities] in [the earlier\\nlawsuit]” and thus “they received adequate representation in the earlier\\nlitigation and should be bound by the judgment.” Id. at 100. This court was\\ncareful to note that the government entities adequately represented the\\nplaintiff carriers’ interests in this later litigation only because of certain\\nspecific facts: (1) the carriers “d[id] not claim a breach of legal duty by\\nSouthwest, apart from the alleged violation of the general duty to obey valid\\nordinances,” (2) “the carriers request[ed] the same remedy denied the\\n[government entities], namely the enforcement of the phase-out provision of\\nthe ordinance to exclude Southwest from Love Field,” and (3) “the ordinance\\n\\n 10\\n\\f Case: 18-40246 Document: 00515020033 Page: 11 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-40246\\ndoes not establish a statutory scheme looking toward private enforcement of\\nits requirements.” Id. at 100; see also WRIGHT, MILLER & COOPER, 18A FED.\\nPRAC. & PROC. JURIS. § 4458.1 (3d ed. 2017), at 573–74 (in discussing\\nSouthwest, identifying these three considerations as the support for the basic\\nconclusion of no private legal wrong, and therefore preclusion through privity).\\n The district court was in error in concluding that Southwest supports a\\nfinding of privity between Respondents and the DOL. Alvarez’s FLSA action\\nin New Jersey relies on far more than a “general duty to obey valid ordinances”\\nas those at issue in the interstate airlines’ lawsuit in Southwest, see 546 F.2d\\nat 100. The FLSA imposes a legal duty on every employer to pay overtime to\\nnon-exempt employees and, unlike the phase-out ordinance at issue in\\nSouthwest, explicitly establishes a private right of action to enforce that duty.\\nSee 29 U.S.C. §§ 207, 216(b); see also Benson & Ford, Inc., 833 F.2d at 1175–\\n76 (distinguishing Southwest by noting that “[o]ur holding rested on the\\nproposition that private parties cannot relitigate to enforce an ordinance after\\nthe public body fails in its attempt to enforce the same ordinance,” whereas the\\nplaintiff in Benson & Ford “[did] not seek to relitigate [another party’s] rights”).\\n Importantly, in Southwest, this court expressly endorsed the proposition\\nthat government actors would not be in privity with private litigants under\\nTitle VII, a federal employment statute that, similar to the FLSA, authorizes\\nboth government litigation and private actions. See 546 F.2d at 98 (citing\\nRodriguez v. E. Tex. Motor Freight, 505 F.2d 40 (5th Cir. 1977), vacated on\\nother grounds sub nom. E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 431 U.S.\\n395 (1977); Williamson v. Bethlehem Steel Corp., 468 F.2d 1201 (2d Cir. 1972)).\\nIn doing so, this court noted that “litigation by a government agency will not\\npreclude a private party from vindicating a wrong that arises from related facts\\nbut generates a distinct, individual cause of action.” Southwest, 546 F.2d at\\n98. Such actions, like Alvarez’s FLSA lawsuit, are “for violation of distinct\\n\\n 11\\n\\f Case: 18-40246 Document: 00515020033 Page: 12 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-40246\\nlegal duties owed individual employees,” rather than “for violation of legal\\nduties owed the public.” Id.\\n More generally, Chipotle’s theory that the DOL represents every\\nworker’s legal interests through its enforcement of the FLSA so as to bind every\\nworker in the United States to an injunction where the DOL is the only bound\\nparty lacks authoritative support. Although, as the district court noted, the\\nFLSA concerns itself with “the general welfare of employees employed in\\ncertain industries engaged in American commerce,” Congress’s statement of\\nsuch a policy does not create a legal nexus or the kind of close identity of\\ninterests between a party to litigation and a nonparty required to amount to\\nprivity. Instead, as in Title VII discrimination suits, Alvarez’s New Jersey\\naction “claim[s] remedies distinct from the relief imposed in the government\\nlitigation” and complains of a “violation of distinct legal duties owed individual\\nemployees.” Southwest, 546 F.2d at 98–99 (citing Rodriguez, 505 F.2d 40;\\nWilliamson, 468 F.2d 1201). 10\\n Because Respondents were not in privity with the DOL and not\\notherwise bound by the injunction, the district court erred in granting\\nChipotle’s motion for contempt. 11\\n\\n\\n\\n\\n 10 We intimate no view whatever on the merits of Alvarez’s contentions in the New\\nJersey action, as those contentions are before the New Jersey federal court rather than this\\ncourt.\\n 11 As the district court correctly noted, this court has held that “[t]he movant in a civil\\n\\ncontempt proceeding bears the burden of establishing by clear and convincing evidence: (1)\\nthat a court order was in effect; (2) that the order required certain conduct by the respondent;\\nand (3) that the respondent failed to comply with the court’s order.” Petroleos Mexicanos v.\\nCrawford Enters., 826 F.2d 392, 401 (5th Cir. 1987). However, because we disagree with the\\ndistrict court’s conclusion that the Alvarez and her lawyers acted in privity with the DOL or\\nwere represented by the DOL so as to be bound by the district court’s injunction, application\\nof that standard is pretermitted here. Likewise, the district court’s ruling on whether process\\nwas properly served on Respondents is pretermitted.\\n 12\\n\\f Case: 18-40246 Document: 00515020033 Page: 13 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-40246\\n B. The District Court Lacked Personal Jurisdiction Over\\n Respondents\\n Because the district court’s contempt order exceeded the bounds of Rule\\n65(d), its exercise of jurisdiction over Respondents was also improper. 12 The\\ndistrict court did not find that minimum contacts supported its exercise of\\njurisdiction over Respondents, and instead relied exclusively on the principle\\nexpressed in Waffenschmidt v. McKay, 763 F.2d 711, 714 (5th Cir. 1985), that\\n“[n]onparties who reside outside the territorial jurisdiction of a district court\\nmay be subject to that court’s jurisdiction if, with actual notice of the court’s\\norder, they actively aid and abet a party in violating that order.” As we have\\nconcluded, Respondents did not aid and abet the DOL or participate in the\\nNevada v. DOL injunction litigation in any manner. Thus, there was no basis\\nfor the district court’s exercise of personal jurisdiction over Respondents.\\n ***\\n For these reasons, the judgment of the district court is REVERSED, and\\njudgment is RENDERED in favor of Respondents.\\n\\n\\n\\n\\n 12Because we reverse the district court’s contempt order on the basis of Rule 65(d)\\nand lack of personal jurisdiction, we also reverse the district court’s award of attorneys’ fees\\nto Chipotle.\\n 13\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4413468/\", \"author_raw\": \"JAMES L. DENNIS, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"JOLLY"},"judge2":{"kind":"string","value":"DENNIS"},"judge3":{"kind":"string","value":"HIGGINSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"JOLLY\": \", Circuit\", \"DENNIS\": \", Circuit\", \"HIGGINSON\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4636215/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: State of Nevada v. LABR\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-02\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-40246 Document: 00515020033 Page: 1 Date Filed: 07/02/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 18-40246 FILED\n July 2, 2019\n Lyle W. Cayce\nSTATE OF TEXAS Clerk\n\n Plaintiff - Appellee\n\n\nCHIPOTLE MEXICAN GRILL, INCORPORATED; CHIPOTLE SERVICES,\nL.L.C.,\n\n Petitioners - Appellees\n\nv.\n\nUNITED STATES DEPARTMENT OF LABOR\n\n Defendant\n\n\nCARMEN ALVAREZ, and her Counsel,\n\n Respondent - Appellant\n\n\n\n\n Appeal from the United States District Court\n for the Eastern District of Texas\n\n\nBefore JOLLY, DENNIS, and HIGGINSON, Circuit Judges.\nJAMES L. DENNIS, Circuit Judge:\n In November 2016, the United States District Court for the Eastern\nDistrict of Texas (the Texas federal court) enjoined the Department of Labor’s\n\f Case: 18-40246 Document: 00515020033 Page: 2 Date Filed: 07/02/2019\n\n\n\n No. 18-40246\n(DOL) proposed Fair Labor Standards Act (FLSA) Overtime Rule 1 and\nspecifically enjoined the DOL from implementing and enforcing that proposed\nrule, pending further order of that court. The proposed Overtime Rule raised\nthe salary threshold of executive, administrative, or professional employees\nexempted from the FLSA’s requirement that employers provide overtime pay.\nIn June 2017, Carmen Alvarez, a restaurant worker in New Jersey, sued her\nformer employer, Chipotle Mexican Grill, Inc. and Chipotle Services, L.L.C.\n(Chipotle), in the United States District Court for the District of New Jersey\n(the New Jersey federal court) for unpaid overtime pay, relying on the proposed\nOvertime Rule. In her suit, Alvarez contended that, because Texas federal\ncourt’s injunction did not stay the effective date of the proposed Overtime Rule,\nthe rule and its higher salary level for exempt employees became effective and\nAlvarez, whose salary was below that level, was entitled to overtime pay as a\nnon-exempt employee.\n One week after filing its answer in the New Jersey federal court,\nChipotle moved in the Texas federal court to hold Alvarez and her attorneys in\ncontempt. 2 After a hearing, the Texas federal court held Alvarez and her\ncounsel in contempt, reasoning that they were bound by the November 2016\ninjunction because they had acted in privity with the DOL and therefore their\nlawsuit and allegations against Chipotle in the New Jersey federal court were\nin violation of the injunction. The court also assessed attorneys’ fees against\nthem. Alvarez and her attorneys appealed.\n The issue is whether the Texas federal court may hold Carmen Alvarez\nand her lawyers in contempt for filing the FLSA lawsuit against Chipotle in\n\n 1 The Overtime Rule is also referred to as the Final Rule by the parties, and was\npublished in the Federal Register as follows: Defining and Delimiting the Exemptions for\nExecutive, Administrative, Professional, Outside Sales and Computer Employees, 81 Fed.\nReg. 32,391-01, 32,393 (May 23, 2016) (to be codified at 29 C.F.R. pt. 541).\n 2 Chipotle filed its answer in the New Jersey federal court on July 26, 2017 and its\n\nmotion for contempt in the Texas federal court on August 1, 2017.\n 2\n\f Case: 18-40246 Document: 00515020033 Page: 3 Date Filed: 07/02/2019\n\n\n\n No. 18-40246\nthe New Jersey federal court and contending that she was entitled to overtime\npay according to the proposed Overtime Rule. We conclude that Texas federal\ncourt did not have the authority under Rule 65(d) of the Federal Rules of Civil\nProcedure to hold Alvarez and her attorneys in contempt, because Alvarez and\nher attorneys did not act in privity with, and she was not adequately\nrepresented by, the DOL in the injunction case; hence, the Texas federal court\nlacked personal jurisdiction over Alvarez and her attorneys. Accordingly, we\nreverse the judgment of the District Court, including the award of attorneys’\nfees against Alvarez and her lawyers, and we render judgment in their favor.\n I. BACKGROUND\n A. The Nevada v. DOL Injunction\n On November 22, 2016, in Nevada v. United States Dep’t of Labor, 218\nF. Supp. 3d 520, 524–25 (E.D. Tex. 2016), the Texas federal court entered a\npreliminary injunction against the DOL and its agents in favor of Nevada and\ntwenty other states, 3 enjoining the Overtime Rule and the DOL from enforcing\nor implementing the rule. Specifically, the Overtime Rule proposed to\nsubstantially expand the class of employees entitled to overtime pay by raising\nthe salary threshold by which executive, administrative, and professional\nemployees are exempted from the right to overtime pay under the FLSA.\n B. The Alvarez v. Chipotle Action (The New Jersey Action)\n In June 2017, six months after the district court’s preliminary injunction\nin Nevada v. DOL, Carmen Alvarez, through her lawyers (together with\nAlvarez, Respondents), filed a lawsuit against Chipotle, her former employer,\n\n 3 The injunction, in relevant part, read as follows:\n [T]he Department’s Final Rule described at 81 Fed. Reg. 32,391\n is hereby enjoined. Specifically, Defendants are enjoined from\n implementing and enforcing the following regulations as\n amended by 81 Fed. Reg. 32,391; 29 C.F.R. §§ 541.100, 541.200,\n 541.204, 541.300, 541.400, 541.600, 541.602, 541.604, 541.605,\n and 541.607 pending further order of this Court.\n\n 3\n\f Case: 18-40246 Document: 00515020033 Page: 4 Date Filed: 07/02/2019\n\n\n\n No. 18-40246\nin New Jersey federal court alleging Chipotle violated the Overtime Rule by\nclassifying Alvarez as exempt despite her weekly salary falling below the\nrevised higher threshold. Alvarez’s pleadings acknowledged that the DOL had\nbeen enjoined from enforcing or implementing the Overtime Rule, but\ncontended that, because the district court in Nevada v. DOL had not stayed\nthe Overtime Rule’s effective date under the Administrative Procedure Act, the\nrule itself had taken effect on December 1, 2016. Chipotle answered that, in\nits view, the Nevada v. DOL order prevented the Overtime Rule from ever\nbecoming effective in any way. 4 The New Jersey action has been stayed\npending disposition of this appeal. 5\n C. The Present Contempt Proceeding by Chipotle Against\n Alvarez and Her Counsel\n On August 1, 2017, Chipotle filed a motion against Respondents in the\nTexas federal court in the Nevada v. DOL action, asking that court to hold\nthem in contempt for violating the injunction issued in that case. 6 Other than\nfiling an answer in the New Jersey action, Chipotle did not further engage in\nthat litigation. 7 Chipotle contended in its contempt motion that Alvarez was\nbound by the injunction because the DOL had adequately represented her\ninterests in that litigation, making her its privy, and that the court should hold\nher and her lawyers in contempt for alleging and invoking the Overtime Rule\nin the New Jersey action. Respondents argued that the Texas federal court\nlacked personal jurisdiction over them; that the Nevada v. DOL injunction did\nnot bind them under Rule 65(d) of the Federal Rules of Civil Procedure because\n\n\n 4 Answer and Affirmative and Other Defenses, Alvarez v. Chipotle Mex. Grill, Inc., et\nal., No. 2:17-cv-4095 (D.N.J. July 26, 2017), ECF No. 5.\n 5 Order Granting Stay, No. 2:17-cv-4095 (D.N.J. May 8, 2018), ECF No. 37.\n 6 At the time of Alvarez’s New Jersey action and Chipotle’s contempt motion, the\n\nTexas federal court had not yet entered a final judgment in the Nevada v. DOL litigation. It\ndid so later in August 2017, declaring the Overtime Rule “invalid.”\n 7 See Answer ¶¶ 22-23, Alvarez v. Chipotle, No. 2:17-cv-4095 (D.N.J. July 26, 2017),\n\nECF No. 5.\n 4\n\f Case: 18-40246 Document: 00515020033 Page: 5 Date Filed: 07/02/2019\n\n\n\n No. 18-40246\nthey were not in privity with the DOL or otherwise subject to the terms of Rule\n65(d); and that the terms of the injunction did not foreclose the filing of private\nFLSA lawsuits. Respondents submitted uncontradicted declarations attesting\nthat they had not in any way participated, coordinated, or acted in concert with\nthe federal defendants in the Nevada v. DOL case.\n On March 19, 2018, the district court granted Chipotle’s motion and held\nRespondents in contempt. In its opinion, the district court rejected\nRespondents’ argument that it lacked personal jurisdiction over them. It\nconcluded that Alvarez was bound by the injunction in privity with the DOL\nbecause the DOL represents the interests of employees like Alvarez; that its\ninjunction was “wholly unambiguous” in proscribing the filing of private\nlawsuits alleging or invoking the Overtime Rule; and that, although Chipotle’s\nservice of process on Respondents was imperfect, Respondents had not proven\nthey were prejudiced thereby. The court ordered that Respondents pay\nChipotle’s attorneys’ fees for the contempt proceeding. 8 Respondents timely\nappealed, 9 contending that the Texas federal court’s injunction did not bind\nthem in any way.\n II. STANDARD OF REVIEW\n We review a district court’s contempt determination for abuse of\ndiscretion. See Piggly Wiggly Clarksville, Inc. v. Mrs. Baird’s Bakeries, 177\nF.3d 380, 382 (5th Cir. 1999). Thus, “[t]he district court’s underlying findings\nof fact are reviewed for clear error and its underlying conclusions of law\nreviewed de novo.” Am. Airlines, Inc. v. Allied Pilots Ass’n, 228 F.3d 574, 578\n(5th Cir. 2000). The district court’s ultimate finding that privity existed\n\n 8 The district court refused to limit the contempt finding to senior attorneys with\ndecisionmaking authority but imposed it on junior attorneys and local counsel as well.\n 9 As to nonparties, a contempt order constitutes a final order for purposes of appellate\n\njurisdiction. See S. Ry. Co. v. Lanham, 403 F.2d 119, 124 (5th Cir. 1968) (“[A]n adjudication\nof civil contempt is final and appealable as to a non-party who would be unable to appeal\nfrom the final decision on the merits”).\n 5\n\f Case: 18-40246 Document: 00515020033 Page: 6 Date Filed: 07/02/2019\n\n\n\n No. 18-40246\nbetween Respondents and the DOL is a legal conclusion that we review de\nnovo. See Drummond Co. v. Dist. 20, United Mine Workers of Am., 598 F.2d\n381, 385 (5th Cir. 1979) (“While the district court’s findings of facts . . . will be\nreviewed under the clearly erroneous standard, the interpretation of the scope\nof the injunctive orders is a question of law to be determined by the\nindependent judgment of this Court.”). Similarly, we review legal conclusions\nsurrounding a determination of personal jurisdiction de novo, while reviewing\nunderlying factual findings for clear error. See In re Chinese-Manufactured\nDrywall Products Liab. Litig., 753 F.3d 521, 528–29 (5th Cir. 2014).\n III. DISCUSSION\n A. The District Court Erred in Concluding that Respondents\n Acted in Privity with the DOL\n We consider here the proper reach of an injunction—specifically, the\nextent to which an injunction can bind individuals who are not parties to the\naction in which the injunction is entered. “‘It is a principle of general\napplication . . . that one is not bound by a judgment in personam in a litigation\nin which he is not designated as a party or to which he has not been made a\nparty by service of process.’” Taylor v. Sturgell, 553 U.S. 880, 884 (2008)\n(quoting Hansberry v. Lee, 311 U.S. 32, 40 (1940)); Zenith Radio Corp. v.\nHazeltine Research, Inc., 395 U.S. 100, 110 (1969) (“It is elementary that one\nis not bound by a judgment in personam resulting from litigation in which he\nis not designated as a party or to which he has not been made a party by service\nof process.”); see also Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860,\n865–66 (5th Cir. 1985) (“An underlying principle is that ‘[i]t is a violation of\ndue process for a judgment [in a prior suit] to be binding on a litigant who was\nnot a party or a privy and therefore has never had an opportunity to be heard.’”\n(quoting Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 327 n.7 (1979))).\nThis principle derives from the “‘deep-rooted historic tradition that everyone\n\n\n 6\n\f Case: 18-40246 Document: 00515020033 Page: 7 Date Filed: 07/02/2019\n\n\n\n No. 18-40246\nshould have his own day in court.’” Taylor, 553 U.S. at 892–93 (quoting\nRichards v. Jefferson Cty., 517 U.S. 793, 798 (1996)). The central exception to\nthis principle limiting the effect of judgments to parties is where nonparties\nhave actual notice of an injunction and aid and abet or act in concert with a\nnamed defendant or as the defendant’s privy in violating the injunction. See\nWRIGHT, MILLER & KANE, 11A FED. PRAC. & PROC. CIV. § 2956, at 384–85 (3d\ned. 2013); see also Richards, 517 U.S. at 798 (“Of course, these principles do\nnot always require one to have been a party to a judgment in order to be bound\nby it. Most notably, there is an exception when it can be said that there is\n‘privity’ between a party to the second case and a party who is bound by an\nearlier judgment.”); Nat’l Spiritual Assembly of Baha’is of U.S. Under\nHereditary Guardianship, Inc. v. Nat’l Spiritual Assembly of Baha’is of U.S.,\nInc., 628 F.3d 837, 847 (7th Cir. 2010).\n “Rule 65(d) of the Federal Rules of Civil Procedure, which governs\ninjunctions and temporary restraining orders, codifies both the general\nprinciple and its exceptions.” Nat’l Spiritual Assembly of Baha’is, 628 F.3d at\n847; see Regal Knitwear Co. v. N.L.R.B., 324 U.S. 9, 14 (1945) (noting that Rule\n65(d) “is derived from the commonlaw doctrine that a decree of injunction not\nonly binds the parties defendant but also those identified with them in interest,\nin privity with them, represented by them or subject to their control” (internal\nquotation omitted)); 11A FED. PRAC. & PROC. CIV. § 2956, at 382 (“Rule 65(d)(2)\ndoes not really add or detract from the range of persons that were bound by a\ndecree under basic equity practice and due-process principles applied on the\nequity side of the federal courts prior to 1938.”).\n Rule 65(d)(2) provides that an injunction “binds only the following who\nreceive actual notice of it by personal service or otherwise: (A) the parties; (B)\nthe parties’ officers, agents, servants, employees, and attorneys; and (C) other\npersons who are in active concert or participation with anyone described in\n\n 7\n\f Case: 18-40246 Document: 00515020033 Page: 8 Date Filed: 07/02/2019\n\n\n\n No. 18-40246\nRule 65(d)(2)(A) or (B).” FED. R. CIV. P. 65(d)(2). The portion of the rule stating\nits only significant exception, subpart (C), contemplates two categories of\npersons who may be bound by an injunction. See 11A FED. PRAC. & PROC. CIV.\n§ 2956, at 384–85. First, “a nonparty may be held in contempt if he aids or\nabets an enjoined party in violating an injunction”; second, “an injunction may\nbe enforced against a nonparty in ‘privity’ with an enjoined party.” Nat’l\nSpiritual Assembly of Baha’is, 628 F.3d at 848–49; 11A FED. PRAC. & PROC.\nCIV. § 2956, at 384–85 (citing, inter alia, Am. Airlines, Inc. v. Allied Pilots\nAss’n, 53 F. Supp. 2d 909 (N.D. Tex. 1999), aff’d, 228 F.3d 574 (5th Cir. 2000)).\n For privity, “[f]ederal courts have deemed” three “types of relationships\n‘sufficiently close’ to justify preclusion”: (1) “a non-party who has succeeded to\na party’s interest in property,” (2) “a non-party who controlled the original\nsuit,” and (3) “a non-party whose interests were represented adequately by a\nparty in the original suit.” Sw. Airlines Co. v. Tex. Int’l Airlines, Inc., 546 F.2d\n84, 95 (5th Cir. 1977). As to the third type, adequate representation does not\nexist where a nonparty is merely interested in the same issue or same set of\nfacts, “or because the issue being litigated is one that might affect their\ninterests by providing a judicial precedent that would be applied in a\nsubsequent action.” 11A FED. PRAC. & PROC. CIV. § 2956, at 390 (citing Int’l\nBhd. of Teamsters v. Keystone Freight Lines, 123 F.2d 326 (10th Cir. 1941);\nBaltz v. The Fair, 178 F. Supp. 691, 693 (N.D. Ill. 1959), aff’d, 279 F.2d 899\n(7th Cir. 1960)). “Similarly, the mere fact that a person has committed the\nenjoined act does not necessarily mean that the injunction should be enforced\nagainst that person.” 11A FED. PRAC. & PROC. CIV. § 2956, at 390. Ultimately,\na determination that privity exists “represents a legal conclusion that the\nrelationship between the one who is a party on the record and the non-party is\nsufficiently close.” Sw. Airlines, 546 F.2d at 95; Freeman, 771 F.2d at 864; see\n\n\n\n 8\n\f Case: 18-40246 Document: 00515020033 Page: 9 Date Filed: 07/02/2019\n\n\n\n No. 18-40246\nalso Nat’l Spiritual Assembly of Baha’is, 628 F.3d at 849 (noting same in the\ncontext of enforcing an injunction).\n Here, the first two subparts of Rule 65(d)(2), as well as the “aiding and\nabetting” theory, are undisputedly inapplicable. Respondents are clearly not\nparties to the Nevada v. DOL case; nor are they any “parties’ officers, agents,\nservants, employees, and attorneys.” FED. R. CIV. P. 65(d)(2)(A)–(B).\nFurthermore, although they had notice of the injunction, as demonstrated by\nthe references in the complaint in the New Jersey action, it is uncontested that\nRespondents did not aid and abet, or otherwise assist or act in concert with,\nthe DOL or any of the its agents to violate the injunction. In holding\nRespondents in contempt, the district court relied on the concept of adequate\nrepresentation, holding that the DOL adequately represented Alvarez’s\ninterests in the Nevada v. DOL litigation. However, the district court’s\nassessment that the DOL adequately represented Alvarez’s interests was\nmistaken. We have held that privity by virtue of adequate representation\nrequires “the existence of an express or implied legal relationship in which\nparties to the first suit are accountable to non-parties who file a subsequent\nsuit raising identical issues,” Pollard v. Cockrell, 578 F.2d 1002, 1008 (5th Cir.\n1978), and that “a showing of parallel interests” alone is insufficient, Freeman,\n771 F.2d at 864; see also Benson & Ford, Inc. v. Wanda Petroleum Co., 833 F.2d\n1172, 1175 (5th Cir. 1987). There is no evidence of such an express or implied\nlegal relationship between Alvarez and the DOL here.\n In erroneously finding Respondents in privity with the DOL, the district\ncourt relied exclusively on this court’s preclusion decision in Southwest Airlines\nCo. v. Texas International Airlines, Inc., 546 F.2d 84 (5th Cir. 1977). However,\nthe holding of preclusion in Southwest Airlines is inapposite here. The\nSouthwest Airlines litigation began when the Cities of Dallas and Fort Worth\nand the Dallas/Fort Worth Regional Airport Board (the DFW Airport Board)\n\n 9\n\f Case: 18-40246 Document: 00515020033 Page: 10 Date Filed: 07/02/2019\n\n\n\n No. 18-40246\nfiled a federal declaratory judgment action to exclude Southwest, an intrastate\nairline carrier, from using Love Field in Dallas, under a bond ordinance calling\nfor the phase-out of commercial air service at that airport. See Southwest\nAirlines, 546 F.2d at 87. Southwest counterclaimed for a declaratory judgment\nof its right to remain at Love Field. Id. The district court declared that the\ncities and the DFW Airport Board could not lawfully exclude Southwest from\nusing Love Field. Id. at 88. The Fifth Circuit affirmed. Id. (citing City of\nDallas v. Sw. Airlines Co., 494 F.2d 773, 776–77 (5th Cir. 1974)). Several\ninterstate airlines next filed claims in Texas state court seeking to compel\nSouthwest to cease using Love Field. Id. At Southwest’s behest, the federal\ndistrict court then preliminarily enjoined the state suit, thereby precluding the\ncities, the DFW Airport Board and the interstate airlines from relitigating in\nstate court or in any other court, Southwest’s right of access to Love Field. Id.\nat 89.\n In affirming the district court’s order enjoining the state suit, this court\nheld that the interstate airline plaintiffs were in privity with the governmental\nentities—the cities of Dallas and Fort Worth, and the DFW Airport Board—in\nthe prior federal suit for preclusion purposes because the “legal interests of the\ncarriers do not differ from those of [the government entities] in [the earlier\nlawsuit]” and thus “they received adequate representation in the earlier\nlitigation and should be bound by the judgment.” Id. at 100. This court was\ncareful to note that the government entities adequately represented the\nplaintiff carriers’ interests in this later litigation only because of certain\nspecific facts: (1) the carriers “d[id] not claim a breach of legal duty by\nSouthwest, apart from the alleged violation of the general duty to obey valid\nordinances,” (2) “the carriers request[ed] the same remedy denied the\n[government entities], namely the enforcement of the phase-out provision of\nthe ordinance to exclude Southwest from Love Field,” and (3) “the ordinance\n\n 10\n\f Case: 18-40246 Document: 00515020033 Page: 11 Date Filed: 07/02/2019\n\n\n\n No. 18-40246\ndoes not establish a statutory scheme looking toward private enforcement of\nits requirements.” Id. at 100; see also WRIGHT, MILLER & COOPER, 18A FED.\nPRAC. & PROC. JURIS. § 4458.1 (3d ed. 2017), at 573–74 (in discussing\nSouthwest, identifying these three considerations as the support for the basic\nconclusion of no private legal wrong, and therefore preclusion through privity).\n The district court was in error in concluding that Southwest supports a\nfinding of privity between Respondents and the DOL. Alvarez’s FLSA action\nin New Jersey relies on far more than a “general duty to obey valid ordinances”\nas those at issue in the interstate airlines’ lawsuit in Southwest, see 546 F.2d\nat 100. The FLSA imposes a legal duty on every employer to pay overtime to\nnon-exempt employees and, unlike the phase-out ordinance at issue in\nSouthwest, explicitly establishes a private right of action to enforce that duty.\nSee 29 U.S.C. §§ 207, 216(b); see also Benson & Ford, Inc., 833 F.2d at 1175–\n76 (distinguishing Southwest by noting that “[o]ur holding rested on the\nproposition that private parties cannot relitigate to enforce an ordinance after\nthe public body fails in its attempt to enforce the same ordinance,” whereas the\nplaintiff in Benson & Ford “[did] not seek to relitigate [another party’s] rights”).\n Importantly, in Southwest, this court expressly endorsed the proposition\nthat government actors would not be in privity with private litigants under\nTitle VII, a federal employment statute that, similar to the FLSA, authorizes\nboth government litigation and private actions. See 546 F.2d at 98 (citing\nRodriguez v. E. Tex. Motor Freight, 505 F.2d 40 (5th Cir. 1977), vacated on\nother grounds sub nom. E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 431 U.S.\n395 (1977); Williamson v. Bethlehem Steel Corp., 468 F.2d 1201 (2d Cir. 1972)).\nIn doing so, this court noted that “litigation by a government agency will not\npreclude a private party from vindicating a wrong that arises from related facts\nbut generates a distinct, individual cause of action.” Southwest, 546 F.2d at\n98. Such actions, like Alvarez’s FLSA lawsuit, are “for violation of distinct\n\n 11\n\f Case: 18-40246 Document: 00515020033 Page: 12 Date Filed: 07/02/2019\n\n\n\n No. 18-40246\nlegal duties owed individual employees,” rather than “for violation of legal\nduties owed the public.” Id.\n More generally, Chipotle’s theory that the DOL represents every\nworker’s legal interests through its enforcement of the FLSA so as to bind every\nworker in the United States to an injunction where the DOL is the only bound\nparty lacks authoritative support. Although, as the district court noted, the\nFLSA concerns itself with “the general welfare of employees employed in\ncertain industries engaged in American commerce,” Congress’s statement of\nsuch a policy does not create a legal nexus or the kind of close identity of\ninterests between a party to litigation and a nonparty required to amount to\nprivity. Instead, as in Title VII discrimination suits, Alvarez’s New Jersey\naction “claim[s] remedies distinct from the relief imposed in the government\nlitigation” and complains of a “violation of distinct legal duties owed individual\nemployees.” Southwest, 546 F.2d at 98–99 (citing Rodriguez, 505 F.2d 40;\nWilliamson, 468 F.2d 1201). 10\n Because Respondents were not in privity with the DOL and not\notherwise bound by the injunction, the district court erred in granting\nChipotle’s motion for contempt. 11\n\n\n\n\n 10 We intimate no view whatever on the merits of Alvarez’s contentions in the New\nJersey action, as those contentions are before the New Jersey federal court rather than this\ncourt.\n 11 As the district court correctly noted, this court has held that “[t]he movant in a civil\n\ncontempt proceeding bears the burden of establishing by clear and convincing evidence: (1)\nthat a court order was in effect; (2) that the order required certain conduct by the respondent;\nand (3) that the respondent failed to comply with the court’s order.” Petroleos Mexicanos v.\nCrawford Enters., 826 F.2d 392, 401 (5th Cir. 1987). However, because we disagree with the\ndistrict court’s conclusion that the Alvarez and her lawyers acted in privity with the DOL or\nwere represented by the DOL so as to be bound by the district court’s injunction, application\nof that standard is pretermitted here. Likewise, the district court’s ruling on whether process\nwas properly served on Respondents is pretermitted.\n 12\n\f Case: 18-40246 Document: 00515020033 Page: 13 Date Filed: 07/02/2019\n\n\n\n No. 18-40246\n B. The District Court Lacked Personal Jurisdiction Over\n Respondents\n Because the district court’s contempt order exceeded the bounds of Rule\n65(d), its exercise of jurisdiction over Respondents was also improper. 12 The\ndistrict court did not find that minimum contacts supported its exercise of\njurisdiction over Respondents, and instead relied exclusively on the principle\nexpressed in Waffenschmidt v. McKay, 763 F.2d 711, 714 (5th Cir. 1985), that\n“[n]onparties who reside outside the territorial jurisdiction of a district court\nmay be subject to that court’s jurisdiction if, with actual notice of the court’s\norder, they actively aid and abet a party in violating that order.” As we have\nconcluded, Respondents did not aid and abet the DOL or participate in the\nNevada v. DOL injunction litigation in any manner. Thus, there was no basis\nfor the district court’s exercise of personal jurisdiction over Respondents.\n ***\n For these reasons, the judgment of the district court is REVERSED, and\njudgment is RENDERED in favor of Respondents.\n\n\n\n\n 12Because we reverse the district court’s contempt order on the basis of Rule 65(d)\nand lack of personal jurisdiction, we also reverse the district court’s award of attorneys’ fees\nto Chipotle.\n 13\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: State of Nevada v. LABR\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-02\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-40246 Document: 00515020033 Page: 1 Date Filed: 07/02/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 18-40246 FILED\\n July 2, 2019\\n Lyle W. Cayce\\nSTATE OF TEXAS Clerk\\n\\n Plaintiff - Appellee\\n\\n\\nCHIPOTLE MEXICAN GRILL, INCORPORATED; CHIPOTLE SERVICES,\\nL.L.C.,\\n\\n Petitioners - Appellees\\n\\nv.\\n\\nUNITED STATES DEPARTMENT OF LABOR\\n\\n Defendant\\n\\n\\nCARMEN ALVAREZ, and her Counsel,\\n\\n Respondent - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Texas\\n\\n\\nBefore JOLLY, DENNIS, and HIGGINSON, Circuit Judges.\\nJAMES L. DENNIS, Circuit Judge:\\n In November 2016, the United States District Court for the Eastern\\nDistrict of Texas (the Texas federal court) enjoined the Department of Labor’s\\n\\f Case: 18-40246 Document: 00515020033 Page: 2 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-40246\\n(DOL) proposed Fair Labor Standards Act (FLSA) Overtime Rule 1 and\\nspecifically enjoined the DOL from implementing and enforcing that proposed\\nrule, pending further order of that court. The proposed Overtime Rule raised\\nthe salary threshold of executive, administrative, or professional employees\\nexempted from the FLSA’s requirement that employers provide overtime pay.\\nIn June 2017, Carmen Alvarez, a restaurant worker in New Jersey, sued her\\nformer employer, Chipotle Mexican Grill, Inc. and Chipotle Services, L.L.C.\\n(Chipotle), in the United States District Court for the District of New Jersey\\n(the New Jersey federal court) for unpaid overtime pay, relying on the proposed\\nOvertime Rule. In her suit, Alvarez contended that, because Texas federal\\ncourt’s injunction did not stay the effective date of the proposed Overtime Rule,\\nthe rule and its higher salary level for exempt employees became effective and\\nAlvarez, whose salary was below that level, was entitled to overtime pay as a\\nnon-exempt employee.\\n One week after filing its answer in the New Jersey federal court,\\nChipotle moved in the Texas federal court to hold Alvarez and her attorneys in\\ncontempt. 2 After a hearing, the Texas federal court held Alvarez and her\\ncounsel in contempt, reasoning that they were bound by the November 2016\\ninjunction because they had acted in privity with the DOL and therefore their\\nlawsuit and allegations against Chipotle in the New Jersey federal court were\\nin violation of the injunction. The court also assessed attorneys’ fees against\\nthem. Alvarez and her attorneys appealed.\\n The issue is whether the Texas federal court may hold Carmen Alvarez\\nand her lawyers in contempt for filing the FLSA lawsuit against Chipotle in\\n\\n 1 The Overtime Rule is also referred to as the Final Rule by the parties, and was\\npublished in the Federal Register as follows: Defining and Delimiting the Exemptions for\\nExecutive, Administrative, Professional, Outside Sales and Computer Employees, 81 Fed.\\nReg. 32,391-01, 32,393 (May 23, 2016) (to be codified at 29 C.F.R. pt. 541).\\n 2 Chipotle filed its answer in the New Jersey federal court on July 26, 2017 and its\\n\\nmotion for contempt in the Texas federal court on August 1, 2017.\\n 2\\n\\f Case: 18-40246 Document: 00515020033 Page: 3 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-40246\\nthe New Jersey federal court and contending that she was entitled to overtime\\npay according to the proposed Overtime Rule. We conclude that Texas federal\\ncourt did not have the authority under Rule 65(d) of the Federal Rules of Civil\\nProcedure to hold Alvarez and her attorneys in contempt, because Alvarez and\\nher attorneys did not act in privity with, and she was not adequately\\nrepresented by, the DOL in the injunction case; hence, the Texas federal court\\nlacked personal jurisdiction over Alvarez and her attorneys. Accordingly, we\\nreverse the judgment of the District Court, including the award of attorneys’\\nfees against Alvarez and her lawyers, and we render judgment in their favor.\\n I. BACKGROUND\\n A. The Nevada v. DOL Injunction\\n On November 22, 2016, in Nevada v. United States Dep’t of Labor, 218\\nF. Supp. 3d 520, 524–25 (E.D. Tex. 2016), the Texas federal court entered a\\npreliminary injunction against the DOL and its agents in favor of Nevada and\\ntwenty other states, 3 enjoining the Overtime Rule and the DOL from enforcing\\nor implementing the rule. Specifically, the Overtime Rule proposed to\\nsubstantially expand the class of employees entitled to overtime pay by raising\\nthe salary threshold by which executive, administrative, and professional\\nemployees are exempted from the right to overtime pay under the FLSA.\\n B. The Alvarez v. Chipotle Action (The New Jersey Action)\\n In June 2017, six months after the district court’s preliminary injunction\\nin Nevada v. DOL, Carmen Alvarez, through her lawyers (together with\\nAlvarez, Respondents), filed a lawsuit against Chipotle, her former employer,\\n\\n 3 The injunction, in relevant part, read as follows:\\n [T]he Department’s Final Rule described at 81 Fed. Reg. 32,391\\n is hereby enjoined. Specifically, Defendants are enjoined from\\n implementing and enforcing the following regulations as\\n amended by 81 Fed. Reg. 32,391; 29 C.F.R. §§ 541.100, 541.200,\\n 541.204, 541.300, 541.400, 541.600, 541.602, 541.604, 541.605,\\n and 541.607 pending further order of this Court.\\n\\n 3\\n\\f Case: 18-40246 Document: 00515020033 Page: 4 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-40246\\nin New Jersey federal court alleging Chipotle violated the Overtime Rule by\\nclassifying Alvarez as exempt despite her weekly salary falling below the\\nrevised higher threshold. Alvarez’s pleadings acknowledged that the DOL had\\nbeen enjoined from enforcing or implementing the Overtime Rule, but\\ncontended that, because the district court in Nevada v. DOL had not stayed\\nthe Overtime Rule’s effective date under the Administrative Procedure Act, the\\nrule itself had taken effect on December 1, 2016. Chipotle answered that, in\\nits view, the Nevada v. DOL order prevented the Overtime Rule from ever\\nbecoming effective in any way. 4 The New Jersey action has been stayed\\npending disposition of this appeal. 5\\n C. The Present Contempt Proceeding by Chipotle Against\\n Alvarez and Her Counsel\\n On August 1, 2017, Chipotle filed a motion against Respondents in the\\nTexas federal court in the Nevada v. DOL action, asking that court to hold\\nthem in contempt for violating the injunction issued in that case. 6 Other than\\nfiling an answer in the New Jersey action, Chipotle did not further engage in\\nthat litigation. 7 Chipotle contended in its contempt motion that Alvarez was\\nbound by the injunction because the DOL had adequately represented her\\ninterests in that litigation, making her its privy, and that the court should hold\\nher and her lawyers in contempt for alleging and invoking the Overtime Rule\\nin the New Jersey action. Respondents argued that the Texas federal court\\nlacked personal jurisdiction over them; that the Nevada v. DOL injunction did\\nnot bind them under Rule 65(d) of the Federal Rules of Civil Procedure because\\n\\n\\n 4 Answer and Affirmative and Other Defenses, Alvarez v. Chipotle Mex. Grill, Inc., et\\nal., No. 2:17-cv-4095 (D.N.J. July 26, 2017), ECF No. 5.\\n 5 Order Granting Stay, No. 2:17-cv-4095 (D.N.J. May 8, 2018), ECF No. 37.\\n 6 At the time of Alvarez’s New Jersey action and Chipotle’s contempt motion, the\\n\\nTexas federal court had not yet entered a final judgment in the Nevada v. DOL litigation. It\\ndid so later in August 2017, declaring the Overtime Rule “invalid.”\\n 7 See Answer ¶¶ 22-23, Alvarez v. Chipotle, No. 2:17-cv-4095 (D.N.J. July 26, 2017),\\n\\nECF No. 5.\\n 4\\n\\f Case: 18-40246 Document: 00515020033 Page: 5 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-40246\\nthey were not in privity with the DOL or otherwise subject to the terms of Rule\\n65(d); and that the terms of the injunction did not foreclose the filing of private\\nFLSA lawsuits. Respondents submitted uncontradicted declarations attesting\\nthat they had not in any way participated, coordinated, or acted in concert with\\nthe federal defendants in the Nevada v. DOL case.\\n On March 19, 2018, the district court granted Chipotle’s motion and held\\nRespondents in contempt. In its opinion, the district court rejected\\nRespondents’ argument that it lacked personal jurisdiction over them. It\\nconcluded that Alvarez was bound by the injunction in privity with the DOL\\nbecause the DOL represents the interests of employees like Alvarez; that its\\ninjunction was “wholly unambiguous” in proscribing the filing of private\\nlawsuits alleging or invoking the Overtime Rule; and that, although Chipotle’s\\nservice of process on Respondents was imperfect, Respondents had not proven\\nthey were prejudiced thereby. The court ordered that Respondents pay\\nChipotle’s attorneys’ fees for the contempt proceeding. 8 Respondents timely\\nappealed, 9 contending that the Texas federal court’s injunction did not bind\\nthem in any way.\\n II. STANDARD OF REVIEW\\n We review a district court’s contempt determination for abuse of\\ndiscretion. See Piggly Wiggly Clarksville, Inc. v. Mrs. Baird’s Bakeries, 177\\nF.3d 380, 382 (5th Cir. 1999). Thus, “[t]he district court’s underlying findings\\nof fact are reviewed for clear error and its underlying conclusions of law\\nreviewed de novo.” Am. Airlines, Inc. v. Allied Pilots Ass’n, 228 F.3d 574, 578\\n(5th Cir. 2000). The district court’s ultimate finding that privity existed\\n\\n 8 The district court refused to limit the contempt finding to senior attorneys with\\ndecisionmaking authority but imposed it on junior attorneys and local counsel as well.\\n 9 As to nonparties, a contempt order constitutes a final order for purposes of appellate\\n\\njurisdiction. See S. Ry. Co. v. Lanham, 403 F.2d 119, 124 (5th Cir. 1968) (“[A]n adjudication\\nof civil contempt is final and appealable as to a non-party who would be unable to appeal\\nfrom the final decision on the merits”).\\n 5\\n\\f Case: 18-40246 Document: 00515020033 Page: 6 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-40246\\nbetween Respondents and the DOL is a legal conclusion that we review de\\nnovo. See Drummond Co. v. Dist. 20, United Mine Workers of Am., 598 F.2d\\n381, 385 (5th Cir. 1979) (“While the district court’s findings of facts . . . will be\\nreviewed under the clearly erroneous standard, the interpretation of the scope\\nof the injunctive orders is a question of law to be determined by the\\nindependent judgment of this Court.”). Similarly, we review legal conclusions\\nsurrounding a determination of personal jurisdiction de novo, while reviewing\\nunderlying factual findings for clear error. See In re Chinese-Manufactured\\nDrywall Products Liab. Litig., 753 F.3d 521, 528–29 (5th Cir. 2014).\\n III. DISCUSSION\\n A. The District Court Erred in Concluding that Respondents\\n Acted in Privity with the DOL\\n We consider here the proper reach of an injunction—specifically, the\\nextent to which an injunction can bind individuals who are not parties to the\\naction in which the injunction is entered. “‘It is a principle of general\\napplication . . . that one is not bound by a judgment in personam in a litigation\\nin which he is not designated as a party or to which he has not been made a\\nparty by service of process.’” Taylor v. Sturgell, 553 U.S. 880, 884 (2008)\\n(quoting Hansberry v. Lee, 311 U.S. 32, 40 (1940)); Zenith Radio Corp. v.\\nHazeltine Research, Inc., 395 U.S. 100, 110 (1969) (“It is elementary that one\\nis not bound by a judgment in personam resulting from litigation in which he\\nis not designated as a party or to which he has not been made a party by service\\nof process.”); see also Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860,\\n865–66 (5th Cir. 1985) (“An underlying principle is that ‘[i]t is a violation of\\ndue process for a judgment [in a prior suit] to be binding on a litigant who was\\nnot a party or a privy and therefore has never had an opportunity to be heard.’”\\n(quoting Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 327 n.7 (1979))).\\nThis principle derives from the “‘deep-rooted historic tradition that everyone\\n\\n\\n 6\\n\\f Case: 18-40246 Document: 00515020033 Page: 7 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-40246\\nshould have his own day in court.’” Taylor, 553 U.S. at 892–93 (quoting\\nRichards v. Jefferson Cty., 517 U.S. 793, 798 (1996)). The central exception to\\nthis principle limiting the effect of judgments to parties is where nonparties\\nhave actual notice of an injunction and aid and abet or act in concert with a\\nnamed defendant or as the defendant’s privy in violating the injunction. See\\nWRIGHT, MILLER & KANE, 11A FED. PRAC. & PROC. CIV. § 2956, at 384–85 (3d\\ned. 2013); see also Richards, 517 U.S. at 798 (“Of course, these principles do\\nnot always require one to have been a party to a judgment in order to be bound\\nby it. Most notably, there is an exception when it can be said that there is\\n‘privity’ between a party to the second case and a party who is bound by an\\nearlier judgment.”); Nat’l Spiritual Assembly of Baha’is of U.S. Under\\nHereditary Guardianship, Inc. v. Nat’l Spiritual Assembly of Baha’is of U.S.,\\nInc., 628 F.3d 837, 847 (7th Cir. 2010).\\n “Rule 65(d) of the Federal Rules of Civil Procedure, which governs\\ninjunctions and temporary restraining orders, codifies both the general\\nprinciple and its exceptions.” Nat’l Spiritual Assembly of Baha’is, 628 F.3d at\\n847; see Regal Knitwear Co. v. N.L.R.B., 324 U.S. 9, 14 (1945) (noting that Rule\\n65(d) “is derived from the commonlaw doctrine that a decree of injunction not\\nonly binds the parties defendant but also those identified with them in interest,\\nin privity with them, represented by them or subject to their control” (internal\\nquotation omitted)); 11A FED. PRAC. & PROC. CIV. § 2956, at 382 (“Rule 65(d)(2)\\ndoes not really add or detract from the range of persons that were bound by a\\ndecree under basic equity practice and due-process principles applied on the\\nequity side of the federal courts prior to 1938.”).\\n Rule 65(d)(2) provides that an injunction “binds only the following who\\nreceive actual notice of it by personal service or otherwise: (A) the parties; (B)\\nthe parties’ officers, agents, servants, employees, and attorneys; and (C) other\\npersons who are in active concert or participation with anyone described in\\n\\n 7\\n\\f Case: 18-40246 Document: 00515020033 Page: 8 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-40246\\nRule 65(d)(2)(A) or (B).” FED. R. CIV. P. 65(d)(2). The portion of the rule stating\\nits only significant exception, subpart (C), contemplates two categories of\\npersons who may be bound by an injunction. See 11A FED. PRAC. & PROC. CIV.\\n§ 2956, at 384–85. First, “a nonparty may be held in contempt if he aids or\\nabets an enjoined party in violating an injunction”; second, “an injunction may\\nbe enforced against a nonparty in ‘privity’ with an enjoined party.” Nat’l\\nSpiritual Assembly of Baha’is, 628 F.3d at 848–49; 11A FED. PRAC. & PROC.\\nCIV. § 2956, at 384–85 (citing, inter alia, Am. Airlines, Inc. v. Allied Pilots\\nAss’n, 53 F. Supp. 2d 909 (N.D. Tex. 1999), aff’d, 228 F.3d 574 (5th Cir. 2000)).\\n For privity, “[f]ederal courts have deemed” three “types of relationships\\n‘sufficiently close’ to justify preclusion”: (1) “a non-party who has succeeded to\\na party’s interest in property,” (2) “a non-party who controlled the original\\nsuit,” and (3) “a non-party whose interests were represented adequately by a\\nparty in the original suit.” Sw. Airlines Co. v. Tex. Int’l Airlines, Inc., 546 F.2d\\n84, 95 (5th Cir. 1977). As to the third type, adequate representation does not\\nexist where a nonparty is merely interested in the same issue or same set of\\nfacts, “or because the issue being litigated is one that might affect their\\ninterests by providing a judicial precedent that would be applied in a\\nsubsequent action.” 11A FED. PRAC. & PROC. CIV. § 2956, at 390 (citing Int’l\\nBhd. of Teamsters v. Keystone Freight Lines, 123 F.2d 326 (10th Cir. 1941);\\nBaltz v. The Fair, 178 F. Supp. 691, 693 (N.D. Ill. 1959), aff’d, 279 F.2d 899\\n(7th Cir. 1960)). “Similarly, the mere fact that a person has committed the\\nenjoined act does not necessarily mean that the injunction should be enforced\\nagainst that person.” 11A FED. PRAC. & PROC. CIV. § 2956, at 390. Ultimately,\\na determination that privity exists “represents a legal conclusion that the\\nrelationship between the one who is a party on the record and the non-party is\\nsufficiently close.” Sw. Airlines, 546 F.2d at 95; Freeman, 771 F.2d at 864; see\\n\\n\\n\\n 8\\n\\f Case: 18-40246 Document: 00515020033 Page: 9 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-40246\\nalso Nat’l Spiritual Assembly of Baha’is, 628 F.3d at 849 (noting same in the\\ncontext of enforcing an injunction).\\n Here, the first two subparts of Rule 65(d)(2), as well as the “aiding and\\nabetting” theory, are undisputedly inapplicable. Respondents are clearly not\\nparties to the Nevada v. DOL case; nor are they any “parties’ officers, agents,\\nservants, employees, and attorneys.” FED. R. CIV. P. 65(d)(2)(A)–(B).\\nFurthermore, although they had notice of the injunction, as demonstrated by\\nthe references in the complaint in the New Jersey action, it is uncontested that\\nRespondents did not aid and abet, or otherwise assist or act in concert with,\\nthe DOL or any of the its agents to violate the injunction. In holding\\nRespondents in contempt, the district court relied on the concept of adequate\\nrepresentation, holding that the DOL adequately represented Alvarez’s\\ninterests in the Nevada v. DOL litigation. However, the district court’s\\nassessment that the DOL adequately represented Alvarez’s interests was\\nmistaken. We have held that privity by virtue of adequate representation\\nrequires “the existence of an express or implied legal relationship in which\\nparties to the first suit are accountable to non-parties who file a subsequent\\nsuit raising identical issues,” Pollard v. Cockrell, 578 F.2d 1002, 1008 (5th Cir.\\n1978), and that “a showing of parallel interests” alone is insufficient, Freeman,\\n771 F.2d at 864; see also Benson & Ford, Inc. v. Wanda Petroleum Co., 833 F.2d\\n1172, 1175 (5th Cir. 1987). There is no evidence of such an express or implied\\nlegal relationship between Alvarez and the DOL here.\\n In erroneously finding Respondents in privity with the DOL, the district\\ncourt relied exclusively on this court’s preclusion decision in Southwest Airlines\\nCo. v. Texas International Airlines, Inc., 546 F.2d 84 (5th Cir. 1977). However,\\nthe holding of preclusion in Southwest Airlines is inapposite here. The\\nSouthwest Airlines litigation began when the Cities of Dallas and Fort Worth\\nand the Dallas/Fort Worth Regional Airport Board (the DFW Airport Board)\\n\\n 9\\n\\f Case: 18-40246 Document: 00515020033 Page: 10 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-40246\\nfiled a federal declaratory judgment action to exclude Southwest, an intrastate\\nairline carrier, from using Love Field in Dallas, under a bond ordinance calling\\nfor the phase-out of commercial air service at that airport. See Southwest\\nAirlines, 546 F.2d at 87. Southwest counterclaimed for a declaratory judgment\\nof its right to remain at Love Field. Id. The district court declared that the\\ncities and the DFW Airport Board could not lawfully exclude Southwest from\\nusing Love Field. Id. at 88. The Fifth Circuit affirmed. Id. (citing City of\\nDallas v. Sw. Airlines Co., 494 F.2d 773, 776–77 (5th Cir. 1974)). Several\\ninterstate airlines next filed claims in Texas state court seeking to compel\\nSouthwest to cease using Love Field. Id. At Southwest’s behest, the federal\\ndistrict court then preliminarily enjoined the state suit, thereby precluding the\\ncities, the DFW Airport Board and the interstate airlines from relitigating in\\nstate court or in any other court, Southwest’s right of access to Love Field. Id.\\nat 89.\\n In affirming the district court’s order enjoining the state suit, this court\\nheld that the interstate airline plaintiffs were in privity with the governmental\\nentities—the cities of Dallas and Fort Worth, and the DFW Airport Board—in\\nthe prior federal suit for preclusion purposes because the “legal interests of the\\ncarriers do not differ from those of [the government entities] in [the earlier\\nlawsuit]” and thus “they received adequate representation in the earlier\\nlitigation and should be bound by the judgment.” Id. at 100. This court was\\ncareful to note that the government entities adequately represented the\\nplaintiff carriers’ interests in this later litigation only because of certain\\nspecific facts: (1) the carriers “d[id] not claim a breach of legal duty by\\nSouthwest, apart from the alleged violation of the general duty to obey valid\\nordinances,” (2) “the carriers request[ed] the same remedy denied the\\n[government entities], namely the enforcement of the phase-out provision of\\nthe ordinance to exclude Southwest from Love Field,” and (3) “the ordinance\\n\\n 10\\n\\f Case: 18-40246 Document: 00515020033 Page: 11 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-40246\\ndoes not establish a statutory scheme looking toward private enforcement of\\nits requirements.” Id. at 100; see also WRIGHT, MILLER & COOPER, 18A FED.\\nPRAC. & PROC. JURIS. § 4458.1 (3d ed. 2017), at 573–74 (in discussing\\nSouthwest, identifying these three considerations as the support for the basic\\nconclusion of no private legal wrong, and therefore preclusion through privity).\\n The district court was in error in concluding that Southwest supports a\\nfinding of privity between Respondents and the DOL. Alvarez’s FLSA action\\nin New Jersey relies on far more than a “general duty to obey valid ordinances”\\nas those at issue in the interstate airlines’ lawsuit in Southwest, see 546 F.2d\\nat 100. The FLSA imposes a legal duty on every employer to pay overtime to\\nnon-exempt employees and, unlike the phase-out ordinance at issue in\\nSouthwest, explicitly establishes a private right of action to enforce that duty.\\nSee 29 U.S.C. §§ 207, 216(b); see also Benson & Ford, Inc., 833 F.2d at 1175–\\n76 (distinguishing Southwest by noting that “[o]ur holding rested on the\\nproposition that private parties cannot relitigate to enforce an ordinance after\\nthe public body fails in its attempt to enforce the same ordinance,” whereas the\\nplaintiff in Benson & Ford “[did] not seek to relitigate [another party’s] rights”).\\n Importantly, in Southwest, this court expressly endorsed the proposition\\nthat government actors would not be in privity with private litigants under\\nTitle VII, a federal employment statute that, similar to the FLSA, authorizes\\nboth government litigation and private actions. See 546 F.2d at 98 (citing\\nRodriguez v. E. Tex. Motor Freight, 505 F.2d 40 (5th Cir. 1977), vacated on\\nother grounds sub nom. E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 431 U.S.\\n395 (1977); Williamson v. Bethlehem Steel Corp., 468 F.2d 1201 (2d Cir. 1972)).\\nIn doing so, this court noted that “litigation by a government agency will not\\npreclude a private party from vindicating a wrong that arises from related facts\\nbut generates a distinct, individual cause of action.” Southwest, 546 F.2d at\\n98. Such actions, like Alvarez’s FLSA lawsuit, are “for violation of distinct\\n\\n 11\\n\\f Case: 18-40246 Document: 00515020033 Page: 12 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-40246\\nlegal duties owed individual employees,” rather than “for violation of legal\\nduties owed the public.” Id.\\n More generally, Chipotle’s theory that the DOL represents every\\nworker’s legal interests through its enforcement of the FLSA so as to bind every\\nworker in the United States to an injunction where the DOL is the only bound\\nparty lacks authoritative support. Although, as the district court noted, the\\nFLSA concerns itself with “the general welfare of employees employed in\\ncertain industries engaged in American commerce,” Congress’s statement of\\nsuch a policy does not create a legal nexus or the kind of close identity of\\ninterests between a party to litigation and a nonparty required to amount to\\nprivity. Instead, as in Title VII discrimination suits, Alvarez’s New Jersey\\naction “claim[s] remedies distinct from the relief imposed in the government\\nlitigation” and complains of a “violation of distinct legal duties owed individual\\nemployees.” Southwest, 546 F.2d at 98–99 (citing Rodriguez, 505 F.2d 40;\\nWilliamson, 468 F.2d 1201). 10\\n Because Respondents were not in privity with the DOL and not\\notherwise bound by the injunction, the district court erred in granting\\nChipotle’s motion for contempt. 11\\n\\n\\n\\n\\n 10 We intimate no view whatever on the merits of Alvarez’s contentions in the New\\nJersey action, as those contentions are before the New Jersey federal court rather than this\\ncourt.\\n 11 As the district court correctly noted, this court has held that “[t]he movant in a civil\\n\\ncontempt proceeding bears the burden of establishing by clear and convincing evidence: (1)\\nthat a court order was in effect; (2) that the order required certain conduct by the respondent;\\nand (3) that the respondent failed to comply with the court’s order.” Petroleos Mexicanos v.\\nCrawford Enters., 826 F.2d 392, 401 (5th Cir. 1987). However, because we disagree with the\\ndistrict court’s conclusion that the Alvarez and her lawyers acted in privity with the DOL or\\nwere represented by the DOL so as to be bound by the district court’s injunction, application\\nof that standard is pretermitted here. Likewise, the district court’s ruling on whether process\\nwas properly served on Respondents is pretermitted.\\n 12\\n\\f Case: 18-40246 Document: 00515020033 Page: 13 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-40246\\n B. The District Court Lacked Personal Jurisdiction Over\\n Respondents\\n Because the district court’s contempt order exceeded the bounds of Rule\\n65(d), its exercise of jurisdiction over Respondents was also improper. 12 The\\ndistrict court did not find that minimum contacts supported its exercise of\\njurisdiction over Respondents, and instead relied exclusively on the principle\\nexpressed in Waffenschmidt v. McKay, 763 F.2d 711, 714 (5th Cir. 1985), that\\n“[n]onparties who reside outside the territorial jurisdiction of a district court\\nmay be subject to that court’s jurisdiction if, with actual notice of the court’s\\norder, they actively aid and abet a party in violating that order.” As we have\\nconcluded, Respondents did not aid and abet the DOL or participate in the\\nNevada v. DOL injunction litigation in any manner. Thus, there was no basis\\nfor the district court’s exercise of personal jurisdiction over Respondents.\\n ***\\n For these reasons, the judgment of the district court is REVERSED, and\\njudgment is RENDERED in favor of Respondents.\\n\\n\\n\\n\\n 12Because we reverse the district court’s contempt order on the basis of Rule 65(d)\\nand lack of personal jurisdiction, we also reverse the district court’s award of attorneys’ fees\\nto Chipotle.\\n 13\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2979,"cells":{"id":{"kind":"number","value":4636217,"string":"4,636,217"},"name":{"kind":"string","value":"Gary W. NETTO; Dejuana L. Netto, Plaintiffs - Appellees v. ATLANTIC SPECIALTY INSURANCE COMPANY, Defendant - Appellant"},"name_abbreviation":{"kind":"string","value":"Gary Netto v. Atlantic Specialty Insurance"},"decision_date":{"kind":"string","value":"2019-07-02"},"docket_number":{"kind":"string","value":"18-60588"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Owen, Southwick, Higginson\", \"parties\": \"\", \"opinions\": [{\"author\": \"LESLIE H. SOUTHWICK, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-60588 Document: 00515020160 Page: 1 Date Filed: 07/02/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 18-60588 FILED\\n July 2, 2019\\n Lyle W. Cayce\\nGARY W. NETTO; DEJUANA L. NETTO, Clerk\\n\\n Plaintiffs - Appellees\\n\\nv.\\n\\nATLANTIC SPECIALTY INSURANCE COMPANY,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Mississippi\\n\\n\\nBefore OWEN, SOUTHWICK and HIGGINSON, Circuit Judges.\\nLESLIE H. SOUTHWICK, Circuit Judge:\\n This case presents a question of first impression under Mississippi\\ninsurance law: may an insurer rely on a consent-to-settle exclusion in an\\ninsurance policy to deny coverage of a claim made by an unnamed additional\\ninsured under that policy? We conclude that absent evidence that the\\nunnamed insured knew or should have known of the exclusion, the insurer may\\nnot enforce its contractual right to deny coverage because it had not consented\\nto the settlement.\\n AFFIRMED.\\n\\f Case: 18-60588 Document: 00515020160 Page: 2 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-60588\\n FACTUAL AND PROCEDURAL BACKGROUND\\n Gary Netto was involved in an automobile accident while acting in the\\nscope of his employment for Pearl River County, Mississippi. The automobile\\nin which Netto was a passenger was owned by Pearl River County and insured\\nby Atlantic Specialty Insurance. Netto was not a party to the policy between\\nthe county and Atlantic, but was an unnamed additional insured under its\\nterms. The at-fault vehicle was allegedly uninsured.\\n Nearly two years after the accident, Netto’s attorney sent a letter to the\\nPearl River County Board of Supervisors advising the Board that she had been\\n“retained to represent the interest of Gary Netto, involved in an automobile\\naccident in Pearl River County, Mississippi on August 14, 2013.” The letter\\nrequested that the Board “forward this correspondence to the insurance carrier\\nin force at the time of [the] accident and request that they make contact with\\nour office immediately.” Atlantic received the forwarded letter on June 2, 2015\\nand assigned the case to claims adjuster Barbara McConnell that same day.\\n McConnell’s claim-file notes from June 3-4 confirm that Atlantic\\nconsidered Netto’s claim to be a possible uninsured motorist (“UM”) claim. The\\nnotes indicate that Atlantic contacted a representative of Pearl River County\\nto discuss Netto’s potential claim. McConnell admitted in her deposition that\\nno one from Atlantic gave Netto any information regarding the applicable\\npolicy.\\n While Netto’s counsel sought unsuccessfully to contact the county’s\\ninsurer, she was negotiating a settlement with the at-fault driver and the\\nMississippi Workers’ Compensation Trust. Netto reached a settlement with\\nboth, and the Mississippi Workers’ Compensation Commission approved the\\nsettlement.\\n Atlantic did not attempt to contact Netto until the day the Commission\\napproved the settlement, when McConnell left a message with Netto’s attorney\\n 2\\n\\f Case: 18-60588 Document: 00515020160 Page: 3 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-60588\\nrequesting a return call. There is no evidence that Netto’s counsel returned\\nthe call, or of any additional attempts by Atlantic to contact Netto.\\n Nearly two months later, Netto’s counsel, having learned that Atlantic\\nwas Pearl River County’s insurer through an unrelated suit, sent a second\\nletter directly to Atlantic through its website. That letter informed Atlantic of\\nthe settlement and raised a possible claim:\\n The policy limits have been collected from the at-fault driver,\\n and we intend to make a UM claim. Currently there are two (2)\\n possible UM policies at issue – the county’s and Mr. Netto’s GEICO\\n policy. I believe the first step is to determine whether Mr. Netto\\n is eligible to make a claim under the county UM policy, pending\\n the policy language, since he was a passenger in a county owned\\n truck and has a worker’s compensation claim.\\n Considering the foregoing, I ask that you assign an adjuster\\n to this claim and provide the relevant policy documents so that we\\n can determine which UM carrier is primary.\\n\\n More than a year passed without a response from Atlantic before Netto\\nand his wife filed suit, seeking damages under the uninsured motorist policy\\nAtlantic issued to Pearl River County. Atlantic moved for summary judgment,\\narguing that Netto was excluded from coverage due to his failure to obtain\\nAtlantic’s consent before settling. The district court denied the motion, holding\\nthat Atlantic had “not provided summary judgment evidence demonstrating\\nPlaintiffs possessed actual knowledge of the provisions of the subject insurance\\npolicy or the identity of Pearl River County’s insurer prior to the July 21, 2015\\nsettlement.”\\n DISCUSSION\\n We review the denial of a motion for summary judgment de novo,\\napplying the same standard as the district court. First Am. Bank v. First Am.\\nTransp. Title Ins. Co., 585 F.3d 833, 836-37 (5th Cir. 2009). Summary\\njudgment is appropriate when “the pleadings, depositions, answers to\\n\\n 3\\n\\f Case: 18-60588 Document: 00515020160 Page: 4 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-60588\\ninterrogatories, and admissions on file, together with the affidavits, if any,\\nshow that there is no genuine issue as to any material fact.” Celotex Corp. v.\\nCatrett, 477 U.S. 317, 322 (1986) (quoting FED. R. CIV. P. 56(c)). Our review of\\nthe evidence is in the light most favorable to the opponent of summary\\njudgment. Murray v. Earle, 405 F.3d 278, 284 (5th Cir. 2005).\\n We similarly give de novo review to a district court’s determinations of\\nstate law, just as we do to its determinations of federal law. See American\\nReliable Ins. Co. v. Navratil, 445 F.3d 402, 404 (5th Cir. 2006). In this diversity\\naction, we apply the substantive law of Mississippi. Erie R.R. v. Tompkins,\\n304 U.S. 64, 78 (1938). In determining Mississippi law, we look to the final\\ndecisions of the Mississippi Supreme Court. See American Int’l Specialty Lines\\nIns. Co. v. Canal Indem. Co., 352 F.3d 254, 260 (5th Cir. 2003). Where the\\nstate’s highest court has not spoken to an issue, we defer to intermediate state\\nappellate court decisions unless convinced that the highest court would\\ndisagree. See Coastal Agric. Supply, Inc. v. JP Morgan Chase Bank, N.A., 759\\nF.3d 498, 509-10 (5th Cir. 2014).\\n Mississippi has an uninsured motorist statute that protects insurers’\\nsubrogation rights. See MISS. CODE ANN. § 83-11-101. Nevertheless, the\\n“Mississippi Supreme Court has applied a relatively thick coat of judicial gloss\\nto the [Uninsured Motorist] Act.” Boatner v. Atlanta Specialty Ins. Co., 115\\nF.3d 1248, 1253 (5th Cir. 1997). That court explained that it “must enforce\\n[the Uninsured Motorist] Coverage Act as a valid expression of [the]\\nlegislature’s interest in protecting innocent victims at the hands of financially\\nirresponsible drivers. In recognizing this valid expression [it has] consistently\\nconstrued the Act to provide, not limit, protection.” Lawler v. Gov’t Emps. Ins.\\nCo., 569 So. 2d 1151, 1154 (Miss. 1990). For example, in holding that\\nuninsured motorist coverage in a policy could be “stacked,” the Mississippi\\nSupreme Court explained that “in order to limit this coverage it must be done\\n 4\\n\\f Case: 18-60588 Document: 00515020160 Page: 5 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-60588\\nin such clear and unambiguous language that it may be readily seen and\\nunderstood by the insured that the coverage is limited.” Hartford Accident &\\nIndem. Co. v. Bridges, 350 So. 2d 1379, 1381 (Miss. 1977).\\n The Mississippi Supreme Court has never considered the enforceability\\nof a consent-to-settle exclusion in an uninsured motorist policy against an\\nunnamed additional insured. We do know the exclusion here would bar\\nrecovery if Netto were a named insured. See U.S. Fid. & Guar. Co. v. Hillman,\\n367 So. 2d 914, 919-22 (Miss. 1979). More recently, the Mississippi Supreme\\nCourt stated that “where the uninsured motorist statutes grant an insurer the\\nright of subrogation and a provision in the policy precludes settlement with an\\nuninsured motorist without the consent of the insurer, the provision of the\\npolicy is valid and will be upheld.” U.S. Fid. & Guar. Co. v. Knight, 882 So. 2d\\n85, 92-93 (Miss. 2004) (quoting Hillman, 367 So. 2d at 921); accord Smith v.\\nSafeco Ins. Co. of Am., 704 F. Supp. 111, 113 (S.D. Miss. 1988).\\n These decisions are not dispositive, though, because Netto was an\\nunnamed additional insured. That has some significance, first, because the\\nstate’s high court has distinguished between named and unnamed insureds\\nwith respect to a variety of policy exclusions, including notice-of-suit\\nexclusions, see Rampy v. State Farm Mut. Auto. Ins. Co., 278 So. 2d 428, 433\\n(Miss. 1973). The Mississippi Supreme Court justified these distinctions by\\nconcluding that enforcing a notice provision against an unnamed insured\\nwould place “an impossible burden on persons who were not contracting parties\\nand who did not have possession of the insurance policy, and could not notify\\nan insurance company of which they had no knowledge.” Id. The Mississippi\\nSupreme Court has also drawn distinctions between the rights of named and\\nunnamed insureds with respect to “stacking” of uninsured motorist coverage.\\nSee Meyers v. American States Ins. Co., 914 So. 2d 669, 674-75 (Miss. 2005).\\n\\n\\n 5\\n\\f Case: 18-60588 Document: 00515020160 Page: 6 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-60588\\n Also significant is that Mississippi courts routinely place the burden\\nupon insurance companies to show that any exclusion to an uninsured motorist\\npolicy applies. In holding that only a named insured is required to give the\\ninsurer notice of an action against an uninsured motorist, the Mississippi\\nSupreme Court held that “[t]he burden of proof is upon the insurer to show not\\nonly that the insured has failed to perform the terms and conditions invoked\\nupon him by the policy contract but in addition that it was substantially\\nprejudiced thereby.” Rampy, 278 So. 2d at 434 (citation omitted). When\\ndetermining whether a waiver of uninsured motorist coverage was valid, that\\ncourt also placed “the burden of proof on the insurer to show that such an\\nexclusion or any other quasi-rejection of uninsured motorist insurance was a\\nknowing and informed decision.” Atlanta Cas. Co. v. Payne, 603 So. 2d 343,\\n348 (Miss. 1992).\\n Consistent with these holdings, we conclude that another exception\\nwould apply to our facts. An insurer must show that the unnamed additional\\ninsured knew or should have known of the insurance policy at issue and of the\\nconsent-to-settle provision. An insurer could make such a showing by\\nintroducing evidence that it made reasonable efforts to inform the unnamed\\nadditional insured of the policy terms, or that the unnamed additional insured\\nhad access to a copy of the policy. There certainly may be other forms of\\nevidence.\\n Here, there is no evidence that Atlantic attempted to inform Netto of the\\npolicy terms, and indeed there was testimony that policy was not released to\\nPearl River County Employees as a matter of county policy.\\n AFFIRMED.\\n\\n\\n\\n\\n 6\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4413470/\", \"author_raw\": \"LESLIE H. SOUTHWICK, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"OWEN"},"judge2":{"kind":"string","value":"SOUTHWICK"},"judge3":{"kind":"string","value":"HIGGINSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4636217/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Gary W. NETTO; Dejuana L. Netto, Plaintiffs - Appellees v. ATLANTIC SPECIALTY INSURANCE COMPANY, Defendant - Appellant\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-02\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-60588 Document: 00515020160 Page: 1 Date Filed: 07/02/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 18-60588 FILED\n July 2, 2019\n Lyle W. Cayce\nGARY W. NETTO; DEJUANA L. NETTO, Clerk\n\n Plaintiffs - Appellees\n\nv.\n\nATLANTIC SPECIALTY INSURANCE COMPANY,\n\n Defendant - Appellant\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Mississippi\n\n\nBefore OWEN, SOUTHWICK and HIGGINSON, Circuit Judges.\nLESLIE H. SOUTHWICK, Circuit Judge:\n This case presents a question of first impression under Mississippi\ninsurance law: may an insurer rely on a consent-to-settle exclusion in an\ninsurance policy to deny coverage of a claim made by an unnamed additional\ninsured under that policy? We conclude that absent evidence that the\nunnamed insured knew or should have known of the exclusion, the insurer may\nnot enforce its contractual right to deny coverage because it had not consented\nto the settlement.\n AFFIRMED.\n\f Case: 18-60588 Document: 00515020160 Page: 2 Date Filed: 07/02/2019\n\n\n\n No. 18-60588\n FACTUAL AND PROCEDURAL BACKGROUND\n Gary Netto was involved in an automobile accident while acting in the\nscope of his employment for Pearl River County, Mississippi. The automobile\nin which Netto was a passenger was owned by Pearl River County and insured\nby Atlantic Specialty Insurance. Netto was not a party to the policy between\nthe county and Atlantic, but was an unnamed additional insured under its\nterms. The at-fault vehicle was allegedly uninsured.\n Nearly two years after the accident, Netto’s attorney sent a letter to the\nPearl River County Board of Supervisors advising the Board that she had been\n“retained to represent the interest of Gary Netto, involved in an automobile\naccident in Pearl River County, Mississippi on August 14, 2013.” The letter\nrequested that the Board “forward this correspondence to the insurance carrier\nin force at the time of [the] accident and request that they make contact with\nour office immediately.” Atlantic received the forwarded letter on June 2, 2015\nand assigned the case to claims adjuster Barbara McConnell that same day.\n McConnell’s claim-file notes from June 3-4 confirm that Atlantic\nconsidered Netto’s claim to be a possible uninsured motorist (“UM”) claim. The\nnotes indicate that Atlantic contacted a representative of Pearl River County\nto discuss Netto’s potential claim. McConnell admitted in her deposition that\nno one from Atlantic gave Netto any information regarding the applicable\npolicy.\n While Netto’s counsel sought unsuccessfully to contact the county’s\ninsurer, she was negotiating a settlement with the at-fault driver and the\nMississippi Workers’ Compensation Trust. Netto reached a settlement with\nboth, and the Mississippi Workers’ Compensation Commission approved the\nsettlement.\n Atlantic did not attempt to contact Netto until the day the Commission\napproved the settlement, when McConnell left a message with Netto’s attorney\n 2\n\f Case: 18-60588 Document: 00515020160 Page: 3 Date Filed: 07/02/2019\n\n\n\n No. 18-60588\nrequesting a return call. There is no evidence that Netto’s counsel returned\nthe call, or of any additional attempts by Atlantic to contact Netto.\n Nearly two months later, Netto’s counsel, having learned that Atlantic\nwas Pearl River County’s insurer through an unrelated suit, sent a second\nletter directly to Atlantic through its website. That letter informed Atlantic of\nthe settlement and raised a possible claim:\n The policy limits have been collected from the at-fault driver,\n and we intend to make a UM claim. Currently there are two (2)\n possible UM policies at issue – the county’s and Mr. Netto’s GEICO\n policy. I believe the first step is to determine whether Mr. Netto\n is eligible to make a claim under the county UM policy, pending\n the policy language, since he was a passenger in a county owned\n truck and has a worker’s compensation claim.\n Considering the foregoing, I ask that you assign an adjuster\n to this claim and provide the relevant policy documents so that we\n can determine which UM carrier is primary.\n\n More than a year passed without a response from Atlantic before Netto\nand his wife filed suit, seeking damages under the uninsured motorist policy\nAtlantic issued to Pearl River County. Atlantic moved for summary judgment,\narguing that Netto was excluded from coverage due to his failure to obtain\nAtlantic’s consent before settling. The district court denied the motion, holding\nthat Atlantic had “not provided summary judgment evidence demonstrating\nPlaintiffs possessed actual knowledge of the provisions of the subject insurance\npolicy or the identity of Pearl River County’s insurer prior to the July 21, 2015\nsettlement.”\n DISCUSSION\n We review the denial of a motion for summary judgment de novo,\napplying the same standard as the district court. First Am. Bank v. First Am.\nTransp. Title Ins. Co., 585 F.3d 833, 836-37 (5th Cir. 2009). Summary\njudgment is appropriate when “the pleadings, depositions, answers to\n\n 3\n\f Case: 18-60588 Document: 00515020160 Page: 4 Date Filed: 07/02/2019\n\n\n\n No. 18-60588\ninterrogatories, and admissions on file, together with the affidavits, if any,\nshow that there is no genuine issue as to any material fact.” Celotex Corp. v.\nCatrett, 477 U.S. 317, 322 (1986) (quoting FED. R. CIV. P. 56(c)). Our review of\nthe evidence is in the light most favorable to the opponent of summary\njudgment. Murray v. Earle, 405 F.3d 278, 284 (5th Cir. 2005).\n We similarly give de novo review to a district court’s determinations of\nstate law, just as we do to its determinations of federal law. See American\nReliable Ins. Co. v. Navratil, 445 F.3d 402, 404 (5th Cir. 2006). In this diversity\naction, we apply the substantive law of Mississippi. Erie R.R. v. Tompkins,\n304 U.S. 64, 78 (1938). In determining Mississippi law, we look to the final\ndecisions of the Mississippi Supreme Court. See American Int’l Specialty Lines\nIns. Co. v. Canal Indem. Co., 352 F.3d 254, 260 (5th Cir. 2003). Where the\nstate’s highest court has not spoken to an issue, we defer to intermediate state\nappellate court decisions unless convinced that the highest court would\ndisagree. See Coastal Agric. Supply, Inc. v. JP Morgan Chase Bank, N.A., 759\nF.3d 498, 509-10 (5th Cir. 2014).\n Mississippi has an uninsured motorist statute that protects insurers’\nsubrogation rights. See MISS. CODE ANN. § 83-11-101. Nevertheless, the\n“Mississippi Supreme Court has applied a relatively thick coat of judicial gloss\nto the [Uninsured Motorist] Act.” Boatner v. Atlanta Specialty Ins. Co., 115\nF.3d 1248, 1253 (5th Cir. 1997). That court explained that it “must enforce\n[the Uninsured Motorist] Coverage Act as a valid expression of [the]\nlegislature’s interest in protecting innocent victims at the hands of financially\nirresponsible drivers. In recognizing this valid expression [it has] consistently\nconstrued the Act to provide, not limit, protection.” Lawler v. Gov’t Emps. Ins.\nCo., 569 So. 2d 1151, 1154 (Miss. 1990). For example, in holding that\nuninsured motorist coverage in a policy could be “stacked,” the Mississippi\nSupreme Court explained that “in order to limit this coverage it must be done\n 4\n\f Case: 18-60588 Document: 00515020160 Page: 5 Date Filed: 07/02/2019\n\n\n\n No. 18-60588\nin such clear and unambiguous language that it may be readily seen and\nunderstood by the insured that the coverage is limited.” Hartford Accident &\nIndem. Co. v. Bridges, 350 So. 2d 1379, 1381 (Miss. 1977).\n The Mississippi Supreme Court has never considered the enforceability\nof a consent-to-settle exclusion in an uninsured motorist policy against an\nunnamed additional insured. We do know the exclusion here would bar\nrecovery if Netto were a named insured. See U.S. Fid. & Guar. Co. v. Hillman,\n367 So. 2d 914, 919-22 (Miss. 1979). More recently, the Mississippi Supreme\nCourt stated that “where the uninsured motorist statutes grant an insurer the\nright of subrogation and a provision in the policy precludes settlement with an\nuninsured motorist without the consent of the insurer, the provision of the\npolicy is valid and will be upheld.” U.S. Fid. & Guar. Co. v. Knight, 882 So. 2d\n85, 92-93 (Miss. 2004) (quoting Hillman, 367 So. 2d at 921); accord Smith v.\nSafeco Ins. Co. of Am., 704 F. Supp. 111, 113 (S.D. Miss. 1988).\n These decisions are not dispositive, though, because Netto was an\nunnamed additional insured. That has some significance, first, because the\nstate’s high court has distinguished between named and unnamed insureds\nwith respect to a variety of policy exclusions, including notice-of-suit\nexclusions, see Rampy v. State Farm Mut. Auto. Ins. Co., 278 So. 2d 428, 433\n(Miss. 1973). The Mississippi Supreme Court justified these distinctions by\nconcluding that enforcing a notice provision against an unnamed insured\nwould place “an impossible burden on persons who were not contracting parties\nand who did not have possession of the insurance policy, and could not notify\nan insurance company of which they had no knowledge.” Id. The Mississippi\nSupreme Court has also drawn distinctions between the rights of named and\nunnamed insureds with respect to “stacking” of uninsured motorist coverage.\nSee Meyers v. American States Ins. Co., 914 So. 2d 669, 674-75 (Miss. 2005).\n\n\n 5\n\f Case: 18-60588 Document: 00515020160 Page: 6 Date Filed: 07/02/2019\n\n\n\n No. 18-60588\n Also significant is that Mississippi courts routinely place the burden\nupon insurance companies to show that any exclusion to an uninsured motorist\npolicy applies. In holding that only a named insured is required to give the\ninsurer notice of an action against an uninsured motorist, the Mississippi\nSupreme Court held that “[t]he burden of proof is upon the insurer to show not\nonly that the insured has failed to perform the terms and conditions invoked\nupon him by the policy contract but in addition that it was substantially\nprejudiced thereby.” Rampy, 278 So. 2d at 434 (citation omitted). When\ndetermining whether a waiver of uninsured motorist coverage was valid, that\ncourt also placed “the burden of proof on the insurer to show that such an\nexclusion or any other quasi-rejection of uninsured motorist insurance was a\nknowing and informed decision.” Atlanta Cas. Co. v. Payne, 603 So. 2d 343,\n348 (Miss. 1992).\n Consistent with these holdings, we conclude that another exception\nwould apply to our facts. An insurer must show that the unnamed additional\ninsured knew or should have known of the insurance policy at issue and of the\nconsent-to-settle provision. An insurer could make such a showing by\nintroducing evidence that it made reasonable efforts to inform the unnamed\nadditional insured of the policy terms, or that the unnamed additional insured\nhad access to a copy of the policy. There certainly may be other forms of\nevidence.\n Here, there is no evidence that Atlantic attempted to inform Netto of the\npolicy terms, and indeed there was testimony that policy was not released to\nPearl River County Employees as a matter of county policy.\n AFFIRMED.\n\n\n\n\n 6\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Gary W. NETTO; Dejuana L. Netto, Plaintiffs - Appellees v. ATLANTIC SPECIALTY INSURANCE COMPANY, Defendant - Appellant\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-02\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-60588 Document: 00515020160 Page: 1 Date Filed: 07/02/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 18-60588 FILED\\n July 2, 2019\\n Lyle W. Cayce\\nGARY W. NETTO; DEJUANA L. NETTO, Clerk\\n\\n Plaintiffs - Appellees\\n\\nv.\\n\\nATLANTIC SPECIALTY INSURANCE COMPANY,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Mississippi\\n\\n\\nBefore OWEN, SOUTHWICK and HIGGINSON, Circuit Judges.\\nLESLIE H. SOUTHWICK, Circuit Judge:\\n This case presents a question of first impression under Mississippi\\ninsurance law: may an insurer rely on a consent-to-settle exclusion in an\\ninsurance policy to deny coverage of a claim made by an unnamed additional\\ninsured under that policy? We conclude that absent evidence that the\\nunnamed insured knew or should have known of the exclusion, the insurer may\\nnot enforce its contractual right to deny coverage because it had not consented\\nto the settlement.\\n AFFIRMED.\\n\\f Case: 18-60588 Document: 00515020160 Page: 2 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-60588\\n FACTUAL AND PROCEDURAL BACKGROUND\\n Gary Netto was involved in an automobile accident while acting in the\\nscope of his employment for Pearl River County, Mississippi. The automobile\\nin which Netto was a passenger was owned by Pearl River County and insured\\nby Atlantic Specialty Insurance. Netto was not a party to the policy between\\nthe county and Atlantic, but was an unnamed additional insured under its\\nterms. The at-fault vehicle was allegedly uninsured.\\n Nearly two years after the accident, Netto’s attorney sent a letter to the\\nPearl River County Board of Supervisors advising the Board that she had been\\n“retained to represent the interest of Gary Netto, involved in an automobile\\naccident in Pearl River County, Mississippi on August 14, 2013.” The letter\\nrequested that the Board “forward this correspondence to the insurance carrier\\nin force at the time of [the] accident and request that they make contact with\\nour office immediately.” Atlantic received the forwarded letter on June 2, 2015\\nand assigned the case to claims adjuster Barbara McConnell that same day.\\n McConnell’s claim-file notes from June 3-4 confirm that Atlantic\\nconsidered Netto’s claim to be a possible uninsured motorist (“UM”) claim. The\\nnotes indicate that Atlantic contacted a representative of Pearl River County\\nto discuss Netto’s potential claim. McConnell admitted in her deposition that\\nno one from Atlantic gave Netto any information regarding the applicable\\npolicy.\\n While Netto’s counsel sought unsuccessfully to contact the county’s\\ninsurer, she was negotiating a settlement with the at-fault driver and the\\nMississippi Workers’ Compensation Trust. Netto reached a settlement with\\nboth, and the Mississippi Workers’ Compensation Commission approved the\\nsettlement.\\n Atlantic did not attempt to contact Netto until the day the Commission\\napproved the settlement, when McConnell left a message with Netto’s attorney\\n 2\\n\\f Case: 18-60588 Document: 00515020160 Page: 3 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-60588\\nrequesting a return call. There is no evidence that Netto’s counsel returned\\nthe call, or of any additional attempts by Atlantic to contact Netto.\\n Nearly two months later, Netto’s counsel, having learned that Atlantic\\nwas Pearl River County’s insurer through an unrelated suit, sent a second\\nletter directly to Atlantic through its website. That letter informed Atlantic of\\nthe settlement and raised a possible claim:\\n The policy limits have been collected from the at-fault driver,\\n and we intend to make a UM claim. Currently there are two (2)\\n possible UM policies at issue – the county’s and Mr. Netto’s GEICO\\n policy. I believe the first step is to determine whether Mr. Netto\\n is eligible to make a claim under the county UM policy, pending\\n the policy language, since he was a passenger in a county owned\\n truck and has a worker’s compensation claim.\\n Considering the foregoing, I ask that you assign an adjuster\\n to this claim and provide the relevant policy documents so that we\\n can determine which UM carrier is primary.\\n\\n More than a year passed without a response from Atlantic before Netto\\nand his wife filed suit, seeking damages under the uninsured motorist policy\\nAtlantic issued to Pearl River County. Atlantic moved for summary judgment,\\narguing that Netto was excluded from coverage due to his failure to obtain\\nAtlantic’s consent before settling. The district court denied the motion, holding\\nthat Atlantic had “not provided summary judgment evidence demonstrating\\nPlaintiffs possessed actual knowledge of the provisions of the subject insurance\\npolicy or the identity of Pearl River County’s insurer prior to the July 21, 2015\\nsettlement.”\\n DISCUSSION\\n We review the denial of a motion for summary judgment de novo,\\napplying the same standard as the district court. First Am. Bank v. First Am.\\nTransp. Title Ins. Co., 585 F.3d 833, 836-37 (5th Cir. 2009). Summary\\njudgment is appropriate when “the pleadings, depositions, answers to\\n\\n 3\\n\\f Case: 18-60588 Document: 00515020160 Page: 4 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-60588\\ninterrogatories, and admissions on file, together with the affidavits, if any,\\nshow that there is no genuine issue as to any material fact.” Celotex Corp. v.\\nCatrett, 477 U.S. 317, 322 (1986) (quoting FED. R. CIV. P. 56(c)). Our review of\\nthe evidence is in the light most favorable to the opponent of summary\\njudgment. Murray v. Earle, 405 F.3d 278, 284 (5th Cir. 2005).\\n We similarly give de novo review to a district court’s determinations of\\nstate law, just as we do to its determinations of federal law. See American\\nReliable Ins. Co. v. Navratil, 445 F.3d 402, 404 (5th Cir. 2006). In this diversity\\naction, we apply the substantive law of Mississippi. Erie R.R. v. Tompkins,\\n304 U.S. 64, 78 (1938). In determining Mississippi law, we look to the final\\ndecisions of the Mississippi Supreme Court. See American Int’l Specialty Lines\\nIns. Co. v. Canal Indem. Co., 352 F.3d 254, 260 (5th Cir. 2003). Where the\\nstate’s highest court has not spoken to an issue, we defer to intermediate state\\nappellate court decisions unless convinced that the highest court would\\ndisagree. See Coastal Agric. Supply, Inc. v. JP Morgan Chase Bank, N.A., 759\\nF.3d 498, 509-10 (5th Cir. 2014).\\n Mississippi has an uninsured motorist statute that protects insurers’\\nsubrogation rights. See MISS. CODE ANN. § 83-11-101. Nevertheless, the\\n“Mississippi Supreme Court has applied a relatively thick coat of judicial gloss\\nto the [Uninsured Motorist] Act.” Boatner v. Atlanta Specialty Ins. Co., 115\\nF.3d 1248, 1253 (5th Cir. 1997). That court explained that it “must enforce\\n[the Uninsured Motorist] Coverage Act as a valid expression of [the]\\nlegislature’s interest in protecting innocent victims at the hands of financially\\nirresponsible drivers. In recognizing this valid expression [it has] consistently\\nconstrued the Act to provide, not limit, protection.” Lawler v. Gov’t Emps. Ins.\\nCo., 569 So. 2d 1151, 1154 (Miss. 1990). For example, in holding that\\nuninsured motorist coverage in a policy could be “stacked,” the Mississippi\\nSupreme Court explained that “in order to limit this coverage it must be done\\n 4\\n\\f Case: 18-60588 Document: 00515020160 Page: 5 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-60588\\nin such clear and unambiguous language that it may be readily seen and\\nunderstood by the insured that the coverage is limited.” Hartford Accident &\\nIndem. Co. v. Bridges, 350 So. 2d 1379, 1381 (Miss. 1977).\\n The Mississippi Supreme Court has never considered the enforceability\\nof a consent-to-settle exclusion in an uninsured motorist policy against an\\nunnamed additional insured. We do know the exclusion here would bar\\nrecovery if Netto were a named insured. See U.S. Fid. & Guar. Co. v. Hillman,\\n367 So. 2d 914, 919-22 (Miss. 1979). More recently, the Mississippi Supreme\\nCourt stated that “where the uninsured motorist statutes grant an insurer the\\nright of subrogation and a provision in the policy precludes settlement with an\\nuninsured motorist without the consent of the insurer, the provision of the\\npolicy is valid and will be upheld.” U.S. Fid. & Guar. Co. v. Knight, 882 So. 2d\\n85, 92-93 (Miss. 2004) (quoting Hillman, 367 So. 2d at 921); accord Smith v.\\nSafeco Ins. Co. of Am., 704 F. Supp. 111, 113 (S.D. Miss. 1988).\\n These decisions are not dispositive, though, because Netto was an\\nunnamed additional insured. That has some significance, first, because the\\nstate’s high court has distinguished between named and unnamed insureds\\nwith respect to a variety of policy exclusions, including notice-of-suit\\nexclusions, see Rampy v. State Farm Mut. Auto. Ins. Co., 278 So. 2d 428, 433\\n(Miss. 1973). The Mississippi Supreme Court justified these distinctions by\\nconcluding that enforcing a notice provision against an unnamed insured\\nwould place “an impossible burden on persons who were not contracting parties\\nand who did not have possession of the insurance policy, and could not notify\\nan insurance company of which they had no knowledge.” Id. The Mississippi\\nSupreme Court has also drawn distinctions between the rights of named and\\nunnamed insureds with respect to “stacking” of uninsured motorist coverage.\\nSee Meyers v. American States Ins. Co., 914 So. 2d 669, 674-75 (Miss. 2005).\\n\\n\\n 5\\n\\f Case: 18-60588 Document: 00515020160 Page: 6 Date Filed: 07/02/2019\\n\\n\\n\\n No. 18-60588\\n Also significant is that Mississippi courts routinely place the burden\\nupon insurance companies to show that any exclusion to an uninsured motorist\\npolicy applies. In holding that only a named insured is required to give the\\ninsurer notice of an action against an uninsured motorist, the Mississippi\\nSupreme Court held that “[t]he burden of proof is upon the insurer to show not\\nonly that the insured has failed to perform the terms and conditions invoked\\nupon him by the policy contract but in addition that it was substantially\\nprejudiced thereby.” Rampy, 278 So. 2d at 434 (citation omitted). When\\ndetermining whether a waiver of uninsured motorist coverage was valid, that\\ncourt also placed “the burden of proof on the insurer to show that such an\\nexclusion or any other quasi-rejection of uninsured motorist insurance was a\\nknowing and informed decision.” Atlanta Cas. Co. v. Payne, 603 So. 2d 343,\\n348 (Miss. 1992).\\n Consistent with these holdings, we conclude that another exception\\nwould apply to our facts. An insurer must show that the unnamed additional\\ninsured knew or should have known of the insurance policy at issue and of the\\nconsent-to-settle provision. An insurer could make such a showing by\\nintroducing evidence that it made reasonable efforts to inform the unnamed\\nadditional insured of the policy terms, or that the unnamed additional insured\\nhad access to a copy of the policy. There certainly may be other forms of\\nevidence.\\n Here, there is no evidence that Atlantic attempted to inform Netto of the\\npolicy terms, and indeed there was testimony that policy was not released to\\nPearl River County Employees as a matter of county policy.\\n AFFIRMED.\\n\\n\\n\\n\\n 6\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2980,"cells":{"id":{"kind":"number","value":4636218,"string":"4,636,218"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Dennis Bargher v. Craig White"},"decision_date":{"kind":"string","value":"2019-07-02"},"docket_number":{"kind":"string","value":"17-30455"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"JAMES L. DENNIS, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-30455 Document: 00515020275 Page: 1 Date Filed: 07/02/2019\\n\\n\\n\\n\\n REVISED July 2, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n July 1, 2019\\n No. 17-30455\\n Lyle W. Cayce\\n Clerk\\nDENNIS BARGHER,\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nCRAIG WHITE, Major; UNKNOWN DAVISON, Sergeant; UNKNOWN\\nWILKES, Master Sergeant,\\n\\n Defendants - Appellees\\n\\n\\n\\n Appeal from the United States District Court\\n for the Middle District of Louisiana\\n\\n\\nBefore STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.\\nJAMES L. DENNIS, Circuit Judge:\\n While a prisoner at the Elayn Hunt Correctional Center in Louisiana,\\nDennis Bargher Jr. brought suit under 42 U.S.C. § 1983 against prison official\\ndefendants alleging that they arranged for another inmate to attack him and\\nstood by while the other inmate severely injured him. While Bargher’s legal\\naction was pending, he was released from prison. The district court granted\\nsummary judgment for the defendants, dismissing Bargher’s claims with\\nprejudice as barred by the prescription period or, in the alternative, for\\n\\f Case: 17-30455 Document: 00515020275 Page: 2 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-30455\\nBargher’s failure to exhaust administrative remedies as required under the\\nPrison Litigation Reform Act (PLRA).\\n We find that fact issues remain as to whether the prescription period was\\nsuspended and, thus, as to whether Bargher’s claims were timely. Because we\\nadditionally hold that Bargher failed to exhaust administrative remedies, the\\nproper disposition was therefore dismissal without prejudice. We VACATE the\\ndistrict court’s judgment and REMAND with instructions to dismiss Bargher’s\\nclaims without prejudice to his ability to refile now that he is no longer bound\\nby the PLRA’s exhaustion requirements.\\n FACTUAL AND PROCEDURAL BACKGROUND\\n On May 4, 2016, while an inmate at the Elayn Hunt Correctional Center\\n(E.H.C.C.) in Louisiana, Dennis Bargher Jr. filed a 42 U.S.C. § 1983 action\\nagainst Major Craig White, Sergeant Davidson, and Master Sergeant Wilkes.\\nBargher alleged that these three prison employees violated his Eighth\\nAmendment rights by encouraging another inmate to injure him, locking that\\ninmate in a cell with him, and then standing by while that inmate “brutal[ly]\\nattack[ed]” him.\\n Specifically, Bargher alleged the following facts, none of which\\nDefendants dispute on appeal. Prior to the attack, Bargher provided the\\nWarden with information about an extortion scheme within the prison that\\ninvolved Officer White. White learned about this and confronted Bargher.\\nWhite then repeatedly spoke with Johnathan Veal, an inmate who had\\npreviously assaulted another inmate, and encouraged Veal to injure Bargher.\\nWhite falsely told Veal that Bargher had been the one to report Veal for the\\nprevious assault, and told Veal that Bargher was “a rat and had to die.”\\nBargher learned that, based on White’s lies, Veal planned to seek revenge on\\nhim.\\n\\n\\n 2\\n\\f Case: 17-30455 Document: 00515020275 Page: 3 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-30455\\n On April 18, 2015, Bargher was taken from his cell and later escorted\\nback by Sergeant Davidson. When Davidson was returning Bargher to his cell,\\nBargher noticed that another inmate was unexpectedly already inside.\\nBargher objected to going back into the cell, but Davidson commanded him to\\n“Get the F in the cell!” Once locked inside, Bargher realized the other inmate\\nwas Veal, who immediately began to attack him. Veal beat Bargher while\\nDavidson watched and laughed, and Veal continued to do so until Davidson\\neventually stopped Veal and removed Bargher from the cell. As a result of the\\nattack, Bargher suffered a broken jaw, broken teeth, and facial nerve damage.\\nHe states that he has permanent disfigurement and pain as well as significant\\nemotional distress and anxiety.\\n As noted, Defendants neither admit not deny this account in the district\\ncourt or on appeal, but instead dispute what remedies Bargher sought in\\nresponse. Under E.H.C.C.’s Administrative Remedy Procedure, inmates must\\nfirst submit internal, written grievances—referred to as “ARPs”—by placing\\nthem in a box, from which they are then collected by prison staff, assigned a\\ncase number, and entered into E.H.C.C.’s computerized records. The record\\nprovides no indication that inmates receive notice when their ARPs are\\nreceived or told what case number are assigned to which of their ARPs.\\nInstead, they only receive notice when an ARP, as identified by the number\\nassigned to it, is accepted or rejected. This has the potential to create confusion\\naround which ARPs have received responses and which have not.\\n Bargher asserts in a sworn affidavit and in his brief on appeal that he\\nsubmitted several ARPs through this internal grievance procedure related to\\nthe April attack. He has additionally provided other documents, written before\\nthis lawsuit, in which he declared that he submitted the same ARPs. He has\\nconsistently contended that he first submitted two ARPs before the attack, in\\nwhich he declared that Veal was his “known enemy” and needed to be kept\\n 3\\n\\f Case: 17-30455 Document: 00515020275 Page: 4 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-30455\\naway from him. He has repeatedly also asserted that, on June 12, 2015, he\\nsubmitted a five-page ARP (the June ARP) detailing Veal’s April attack and\\nthe Defendants’ culpability. The record includes a copy of the June ARP that\\nBargher sent to his attorney, Donna Grodner as well as an accompanying letter\\nin which he informed her that neither that ARP nor the two he submitted about\\nVeal before the attack had received any response. This letter and copy of the\\nJune ARP are post-marked June 25, 2015 and stamped as received by Grodner\\non June 30, 2015.\\n On October 7, 2015, Grodner sent a letter to the Warden inquiring about\\nthe status of Bargher’s three ARPs for which he never received a response. On\\nOctober 22, the Warden responded that Bargher had no ARPs pending.\\n On October 6, 2015, Bargher submitted an ARP (ARP 744) requesting a\\nresponse to the other ARPs that he asserted therein were still pending. This\\nARP was given case number EHCC-2015-744, and rejected two days later on\\nOctober 8, 2015, for “addressing more than one complaint.” The rejection\\nnotice identifies the ARP by its number and contains no other reference to its\\ncontent.\\n On November 3, 2015, Bargher submitted another ARP (ARP 819)\\ndescribing the April assault and requesting remedies. In this submission,\\nBargher references other ARPs that he says he had submitted that “must have\\nbeen lost, or better yet never received.” This ARP was assigned number EHCC-\\n2015-819 and rejected November 4, again with a form that provides only the\\ncase number to identify which ARP is being rejected.\\n Bargher brought suit on May 4, 2016. Defendants subsequently filed a\\nmotion for summary judgment, arguing that Bargher’s claims were barred by\\nthe expiration of the applicable one-year prescription period. Defendants\\nnoted that the timeframe for Bargher’s § 1983 claim commenced on April 18,\\n2015, the date he alleges he was attacked. While acknowledging that the\\n 4\\n\\f Case: 17-30455 Document: 00515020275 Page: 5 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-30455\\nprescription period is suspended while the inmate is awaiting a response to a\\nrelated ARP, Defendants attested that the only ARP Bargher submitted\\naddressing the April attack was ARP 819, which tolled the period for only two\\ndays from when it was submitted on November 3, 2015, until November 4,\\n2015, when it was rejected.\\n In his opposition to summary judgment, Bargher asserted that the June\\nARP suspended the prescription period. In his brief in opposition, Bargher\\nstated that: “[the June ARP] was either never answered or it is [ARP 819] that,\\non November 4, 2015 . . . was rejected.” The district court denied Defendants’\\nfirst motion for summary judgment, noting that, if Bargher had in fact\\nsubmitted the June ARP as he alleged, then his claim was not prescribed.\\n Defendants then filed new motions for summary judgment with\\nadditional evidence, including the prison’s records of all ARPs that Bargher\\nhad submitted since 2013. There is no record therein of an ARP submitted in\\nJune 2015 nor either of the two ARPs that Bargher asserts he filed before the\\nattack requesting that Veal be kept away from him. Instead, the records show\\nthat the first ARP Bargher filed in 2015 was ARP 744 in October, followed by\\nARP 819 in November. The copies of ARP 744 and 819 that Defendants\\nprovided demonstrate that ARP 819 is the only one in the records that\\ndiscusses the April attack. It is also clear from these documents that ARP 819\\nis not itself the June ARP: the district court noted that “unlike the five page\\nARP Plaintiff claims he filed on June 12, 2015, ARP No. EHCC-2015-0819 was\\nonly four pages and dated October 30th-31st, 2015.” Defendants also\\nsubmitted an affidavit from the ARP Screening Officer who oversees all ARP\\nrequest from inmates, in which she attested that the records provided were a\\ncomplete accounting of the ARPs Bargher filed from 2013 through 2015, and\\nthat the June ARP did not exist in their records. Accordingly, Defendants\\nreasserted that the prescription period was only suspended from November 3,\\n 5\\n\\f Case: 17-30455 Document: 00515020275 Page: 6 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-30455\\n2015, the date Bargher filed ARP 819, until November 4, 2015, the date it was\\nrejected. Defendants additionally argued, in the alternative, that even if\\nBargher’s claims were not prescribed, they should be dismissed for Bargher’s\\nfailure to exhaust administrative remedies as required under the Prison\\nLitigation Reform Act (PLRA).\\n In his response, Bargher continued to declare that he had, in fact,\\nsubmitted the June ARP even though it was not reflected in the prison’s\\nrecords. Bargher posited that the June ARP and the two prior ARPs about\\nVeal were absent from the records not because he had not submitted them, but\\nbecause the records themselves had likely been tampered with by Defendants.\\n In support of this allegation, Bargher submitted an additional affidavit\\ndetailing an incident that occurred after he filed his original complaint, when\\nWhite allegedly demonstrated his willingness and ability to sabotage Bargher’s\\nprison records. Bargher asserted that, on January 1, 2017, shortly before he\\nwas later released from prison, White called him into the security office. White\\nalso called in his wife, who worked in the prison’s records department, and he\\nbegan looking through Bargher’s prison file on the computer. White then\\nprinted out about twenty pages of Bargher’s files, deleted the electronic copies,\\nand “rip[ped] up all of [the] file papers and thr[ew] them in the trash.” White\\nthen demanded Bargher’s new home address and took Bargher’s birth\\ncertificate from his file. When Bargher was released two weeks later, the birth\\ncertificate was still missing from his personal packet of papers provided to him.\\n The district court issued a ruling granting Defendants’ motions for\\nsummary judgment and dismissing Bargher’s claims with prejudice. The\\ndistrict court emphasized that there was no record in the prison’s files of the\\nJune ARP, and that Bargher’s “self-serving attestation” stating that he filed\\nan ARP in June 2015 was insufficient to satisfy this burden to prove that the\\nprescription period had been suspended for anything more than the two days\\n 6\\n\\f Case: 17-30455 Document: 00515020275 Page: 7 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-30455\\nin November when ARP 819 was pending. Alternatively, the district court\\nconcluded that even if Bargher had submitteed the June ARP and his claims\\nwere not prescribed, he had failed to show that he exhausted the\\nadministrative remedies required of inmates under the PLRA. Bargher filed\\na timely notice of appeal.\\n DISCUSSION\\n A. Suspension of the Prescription Period\\n A district court’s grant of summary judgment is reviewed de novo.\\nGrogan v. Kumar, 873 F.3d 273, 277 (5th Cir. 2017) (citations omitted).\\nSummary judgment is only appropriate if the moving party demonstrates that\\n“there is no genuine dispute as to any material fact and the movant is entitled\\nto judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(a)). When\\nconsidering a motion for summary judgment, a court must make all reasonable\\nfactual inferences from the evidence in the light most favorable to the non-\\nmovant. Austin v. Kroger Tex., L.P., 864 F.3d 326, 328–29 (5th Cir. 2017)\\n(citations omitted). However, “conclusory allegations, speculation, and\\nunsubstantiated assertions are inadequate to satisfy the nonmovant’s burden.”\\nDouglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996).\\n Notably, Defendants have not offered any evidence to dispute Bargher’s\\ndetailed account of Veal’s attack and the Defendants’ role in orchestrating it.\\nIn viewing the evidence in the light most favorable to Bargher, we must\\ntherefore infer for the purposes of our review that Defendants arranged this\\nattack precisely as Bargher describes. See Austin, 864 F.3d at 328–29. The\\nonly dispute before this court is whether Bargher is prescribed from seeking\\njudicial relief for Defendants’ alleged conduct.\\n Because there is no federal statute of limitations for actions brought\\npursuant to § 1983, federal courts borrow the forum state’s general personal\\ninjury limitations period. Wallace v. Kato, 549 U.S. 384, 387 (2007); Owens v.\\n 7\\n\\f Case: 17-30455 Document: 00515020275 Page: 8 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-30455\\nOkure, 488 U.S. 235, 249–50 (1989). The forum state’s applicable tolling\\nprovisions are also given full effect. Smith v. Reg’l Transit Auth., 827 F.3d 412,\\n421 (5th Cir. 2016) (internal quotation marks and citation omitted).\\nLouisiana’s one-year liberative prescription period thus applies to Bargher’s\\n§ 1983 action. See id.; LA. CIV. CODE ANN. art. 3492; see also LA. CIV. CODE\\nANN. art. 3447 (“Liberative prescription is a mode of barring of actions as a\\nresult of inaction for a period of time.”). “This prescription commences to run\\nfrom the day injury or damage is sustained.” La. Civ. Code Ann. art. 3492. “If\\na prescriptive period consists of one or more years, prescription accrues upon\\nthe expiration of the day of the last year that corresponds with the date of the\\ncommencement of prescription.” La. Civ. Code Ann. art. 3456.\\n Prescription is suspended upon the filing of a prisoner’s grievance “until\\nthe final agency decision is delivered.” La. Rev. Stat. Ann. § 15:1172(E); see\\nAllen v. State, 107 So. 3d 106, 109–10 (La. Ct. App. 2012). “The period of\\nsuspension is not counted toward accrual of prescription.” La. Civ. Code Ann.\\nart. 3472; cf. La. Civ. Code Ann. art. 3466 (“If prescription is interrupted, the\\ntime that has run is not counted. Prescription commences to run anew from\\nthe last day of interruption.”).\\n There is no dispute that Bargher’s § 1983 action accrued on April 18,\\n2015, and that the applicable prescription period, if not suspended, expired\\nApril 18, 2016. Bargher argues, however, that there is a genuine dispute as to\\nwhether he submitted an internal grievance on June 12, 2015 (the June ARP),\\nwhich the district court acknowledged would have suspended the prescription\\nperiod and rendered his claims timely. We agree.\\n In finding otherwise, the district court improperly concluded that a\\nparty’s “self-serving” sworn statements cannot create a genuine dispute of\\nmaterial fact. Notably, the unpublished case that the district court relied on\\ndiscussed a “conclusory, unsworn affidavit.” Tyler v. Cedar Hill Independent\\n 8\\n\\f Case: 17-30455 Document: 00515020275 Page: 9 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-30455\\nSch. Dist, 426 F. App’x 306, 309 (5th Cir. 2011) (per curium) (emphasis added)\\n(citing DIRECTV, Inc. v. Budden, 420 F.3d 521, 531 (5th Cir. 2005). Simply\\nbeing “self-serving,” however, does not prevent a party’s assertions from\\ncreating a dispute of fact. See Dallas/Fort Worth Int’l Airport Bd. v. INet\\nAirport Sys., Inc., 819 F.3d 245, 253 n.14 (5th Cir.) (“Evidence proffered by one\\nside to support or defeat a motion for summary judgment will inevitably appear\\n‘self-serving.’”)). A plaintiff in car wreck case who asserts that she had a green\\nlight and that the defendant ran a red light is also making highly “self-serving”\\nstatements, but no one would say that the district court can ignore them.\\nSimilarly, Bargher’s statements that he submitted unrecorded ARPs and that\\nWhite can and has tampered with his prison records are not merely “conclusory\\nallegations, speculation, and unsubstantiated assertions,” see Douglass, 79\\nF.3d at 1429, but instead detailed testimony from his personal knowledge.\\n Further, Bargher’s affidavits are not the only evidence to support his\\naccount of the facts. Though the prison’s records submitted by Defendants\\nindisputably include no mention of Bargher submitting the June ARP, it is\\nclear that he did write the June ARP shortly after the attack. The document\\nin question is included in the record, prepared in the same handwriting as\\nBargher’s recorded ARPs and postmarked to his attorney June 25, 2015.\\nThough this does not of course prove that he followed the correct procedures to\\nsubmit the June ARP through E.H.C.C.’s internal grievance system, it\\ncertainly lends credence to his version of events when viewed in the light most\\nfavorable to him. The record also demonstrates that Bargher has consistently\\nmaintained both before and during this lawsuit—in letters to his lawyer, in his\\nARPs that are on record with the prison, and in his affidavits—that he\\nsubmitted the June ARP and the prior ARPs about Veal but received no\\nresponse.\\n\\n\\n 9\\n\\f Case: 17-30455 Document: 00515020275 Page: 10 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-30455\\n The district court found that there was no mention of the June ARP in\\nBargher’s complaint. The complaint specifically references two ARPs, one that\\nwas rejected on October 8, 2015 and one on November 4, 2015. The complaint\\ndoes not state when either ARP was filed. From the record that was\\nsubsequently developed, we know that these ARPs are ARP 744 and ARP 819,\\nrespectively—not the June ARP.\\n We believe, however, that the lack of transparency in E.H.C.C.’s\\ngrievance procedures could reasonably explain this apparent omission.\\nBargher would have known from the rejection notices he received that an ARP\\ndesignated as “EHCC-2015-744” was denied on October 8 and another,\\ndesignated as “EHCC-2015-819” was denied on November 4. Bargher argues,\\nhowever, that he previously believed that one of these rejections was for the\\nJune ARP, and only later during the litigation discovered that neither of these\\ndesignations referred to the June ARP. There is other evidence that Bargher\\nwas genuinely confused about this: in one of his affidavits, he stated that he\\ndid not receive a response to the June ARP “until November 2015”—the month\\nhe actually received the rejection for ARP 819. We are not convinced that\\nBargher’s mention in his complaint of only the two ARPs rejected in October\\nand November would prevent a reasonable jury from finding that he submitted\\nthe June ARP.\\n Bargher has further provided summary judgment evidence that would\\npermit a reasonable jury to conclude that White had both the opportunity and\\nthe motive to either intercept the June ARP to prevent it from being logged or\\nto delete it from the records. In a sworn affidavit, Bargher claims that he\\npersonally saw White, with help from his wife who works in the records\\ndepartment at E.H.C.C., tamper with his records and destroy portions of them.\\nWe reiterate that, when viewing all evidence in the light most favorable to\\nBargher as we must do, we draw the inference that White and the other guards\\n 10\\n\\f Case: 17-30455 Document: 00515020275 Page: 11 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-30455\\ndid indeed arrange for Veal to attack Bargher. It is then certainly reasonable\\nto infer that White had every reason to cover up any record of the June ARP\\ndescribing his involvement in this attack. 1\\n Because we find a genuine issue of material fact as whether Bargher\\nfiled the June ARP, the district court erred by dismissing Bargher’s claims as\\nbarred by the prescription period.\\n B. Failure to Exhaust Administrative Remedies\\n The district court alternatively found that, even if a reasonable jury\\ncould find that Bargher filed the June ARP, dismissal was proper because\\nBargher failed to exhaust his administrative remedies before filing suit. We\\nreview a dismissal for failure to exhaust administrative remedies de novo.\\nPowe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999).\\n Under the Prison Litigation Reform Act (PLRA): “No action shall be\\nbrought with respect to prison . . . by a prisoner confined in any jail, prison, or\\nother correctional facility until such administrative remedies as are available\\nare exhausted.” 42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 84\\n(2006). “Proper exhaustion demands compliance with an agency’s deadlines\\nand other critical procedural rules.” Woodford, 548 U.S. at 90. The petitioner\\nmust have “pursue[d] the grievance remedy to conclusion”—substantial\\ncompliance with administrative procedures is not enough. Wright v.\\nHollingsworth, 260 F.3d 357, 358 (5th Cir. 2001).\\n Louisiana’s Administrative Remedy Procedure has two steps, and a\\nprisoner has not exhausted his remedies until he has completed both. See\\nDillon v. Rogers, 596 F.3d 260, 265–66 (5th Cir. 2010). A prisoner first submits\\n\\n\\n 1 Though ARP 819 also describes the attack and implicates White, it was filed too late\\nfor Bargher to receive relief, which would weaken any motive to interfere with its filing. See\\nLa. Admin. Code tit. 22, pt. I, § 325(J)(1) (a grievance at this step shall be filed “within 90\\ndays of an alleged event.”).\\n\\n 11\\n\\f Case: 17-30455 Document: 00515020275 Page: 12 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-30455\\na request to the warden briefly setting out the basis for the claim and the relief\\nsought—these are the “ARPs” discussed at length above. Id. at 265. The\\nwarden then has 40 days to respond. Id. at 265–66. If the inmate is\\ndissatisfied with the warden’s response, or no response is received within the\\n40-day time period, the inmate may proceed to the second step and appeal to\\nthe Secretary of the Louisiana Department of Public Safety and Corrections.\\nId. at 266. Critically, a prisoner who does not receive a timely response to his\\ninitial ARP is not prevented from filing a second-step ARP. See id.; LA. ADMIN.\\nCODE tit. 22, pt. I, § 325(J)(1)(c) (“expiration of response time limits shall\\nentitle the offender to move on to the next step in the process.”).\\n Bargher acknowledges that he never proceeded to the second step of the\\ngrievance process, but instead incorrectly contends that the second step was\\nnot available until the prison responded to his first-step grievance. However,\\nwhen prison officials failed to timely respond to his first-step grievance,\\nBargher was entitled under § 325(J)(1)(c) to proceed to the second step. See\\nDillon, 596 F.3d at 266. Because Bargher thus filed his §1983 complaint prior\\nto the completion of the administrative grievance process, the district court\\nproperly found that Bargher failed to exhaust the required administrative\\nremedies before bringing this suit while incarcerated.\\n The district court dismissed Bargher’s suit with prejudice. Failure to\\nexhaust, however, warrants dismissal without prejudice, which permits the\\nlitigant to refile if he exhausts or is otherwise no longer barred by the PLRA\\nrequirements. See Wright, 260 F.3d 357; Booth v. Churner, 532 U.S. 731, 735\\n(2001).\\n This distinction between dismissal with or without prejudice is critical\\nin Bargher’s case because he was released from prison during the pendency of\\nthis suit. Bargher’s subsequent release does not relieve him of the requirement\\nto exhaust administrative remedies for this current legal action that he\\n 12\\n\\f Case: 17-30455 Document: 00515020275 Page: 13 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-30455\\ninitiated while in prison. Williams v. Henagan, 595 F.3d 610, 619 (5th Cir.\\n2010) (holding that when plaintiff “was incarcerated when he brought this suit\\n. . . [his] release during the pendency of the suit does not relieve him the\\nobligation to comply with 42 U.S.C. § 1997e[‘s exhaustion requirements]”). By\\nits plain language, however, the PLRA’s restrictions do not apply to actions\\nfiled by former inmates following their release. 42 U.S.C. § 1997e(a) (“No\\naction shall be brought . . . by a prisoner . . . until such administrative remedies\\nas are available are exhausted”); see, e.g., Norton v. City of Marietta, 432 F.3d\\n1145, 1150 (10th Cir. 2005) (“In light of the PLRA’s plain language . . . . a\\nplaintiff who seeks to bring suit about prison life after he has been released\\nand is no longer a prisoner does not have to satisfy the PLRA’s exhaustion\\nrequirements before bringing suit”); Nerness v. Johnson, 401 F.3d 874, 876 (8th\\nCir. 2005) (per curium) (PLRA’s exhaustion requirements do not apply when\\nsomeone files suit after release from confinement); Witzke v. Femal, 376 F.3d\\n744, 750 (7th Cir. 2004) (same); Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999)\\n(same); Duvall v. Dallas Cty., No. CIV.A. 305CV2431B, 2006 WL 3487024, at\\n*2 (N.D. Tex. Dec. 1, 2006) (same); see also Janes v. Hernandez, 215 F.3d 541,\\n542 (5th Cir. 2000) (“Because Janes was not a prisoner when this complaint\\nwas filed, the [attorney’s] fee limits of the [Prison Litigation Reform] Act did\\nnot apply.”).\\n Accordingly, though his present action must be dismissed, Bargher\\nwould not be bound by the PLRA’s exhaustion requirements if he were to\\nimmediately refile. See Cox v. Mayer, 332 F.3d 422, 424–25 (6th Cir. 2003)\\n(holding that dismissal was required when plaintiff filed unexhausted claims\\nwhile a prisoner but that his release during pendency of the suit meant he\\ncould subsequently refile his claims without exhausting: “no longer in prison,\\nplaintiff ha[s] no remedies to exhaust”); see also Ahmed v. Dragovich, 297 F.3d\\n201, 210 (3d Cir. 2002) (“Although Ahmed would have been free of the\\n 13\\n\\f Case: 17-30455 Document: 00515020275 Page: 14 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-30455\\nstrictures of the PLRA[‘s exhaustion requirements] if he had filed a timely\\ncomplaint after his release from prison, he is bound by the PLRA because his\\nsuit was filed . . . almost three years before he was released.”). Because this is\\ntherefore not an occasion where “modification of the judgment would be futile,”\\nthe district court’s judgment should be amended to dismissal without\\nprejudice. See, e.g., Rankin v. Pearson, 612 F. App'x 204, 206 (5th Cir. 2015)\\n(declining to find that the district court erred in that case by dismissing with\\nprejudice because the plaintiff there was required but would be unable to\\nexhaust his administrative remedies).\\n ***\\n For these reasons, we VACATE the district court’s dismissal with\\nprejudice and REMAND with instructions to dismiss Bargher’s action without\\nprejudice to his ability to timely refile.\\n\\n\\n\\n\\n 14\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4413471/\", \"author_raw\": \"JAMES L. DENNIS, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"STEWART"},"judge2":{"kind":"string","value":"DENNIS"},"judge3":{"kind":"string","value":"WILLETT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"STEWART\": \", Chief\", \"DENNIS\": \", Circuit\", \"WILLETT\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4636218/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Dennis Bargher v. Craig White\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-02\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-30455 Document: 00515020275 Page: 1 Date Filed: 07/02/2019\n\n\n\n\n REVISED July 2, 2019\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n July 1, 2019\n No. 17-30455\n Lyle W. Cayce\n Clerk\nDENNIS BARGHER,\n\n Plaintiff - Appellant\n\nv.\n\nCRAIG WHITE, Major; UNKNOWN DAVISON, Sergeant; UNKNOWN\nWILKES, Master Sergeant,\n\n Defendants - Appellees\n\n\n\n Appeal from the United States District Court\n for the Middle District of Louisiana\n\n\nBefore STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.\nJAMES L. DENNIS, Circuit Judge:\n While a prisoner at the Elayn Hunt Correctional Center in Louisiana,\nDennis Bargher Jr. brought suit under 42 U.S.C. § 1983 against prison official\ndefendants alleging that they arranged for another inmate to attack him and\nstood by while the other inmate severely injured him. While Bargher’s legal\naction was pending, he was released from prison. The district court granted\nsummary judgment for the defendants, dismissing Bargher’s claims with\nprejudice as barred by the prescription period or, in the alternative, for\n\f Case: 17-30455 Document: 00515020275 Page: 2 Date Filed: 07/02/2019\n\n\n\n No. 17-30455\nBargher’s failure to exhaust administrative remedies as required under the\nPrison Litigation Reform Act (PLRA).\n We find that fact issues remain as to whether the prescription period was\nsuspended and, thus, as to whether Bargher’s claims were timely. Because we\nadditionally hold that Bargher failed to exhaust administrative remedies, the\nproper disposition was therefore dismissal without prejudice. We VACATE the\ndistrict court’s judgment and REMAND with instructions to dismiss Bargher’s\nclaims without prejudice to his ability to refile now that he is no longer bound\nby the PLRA’s exhaustion requirements.\n FACTUAL AND PROCEDURAL BACKGROUND\n On May 4, 2016, while an inmate at the Elayn Hunt Correctional Center\n(E.H.C.C.) in Louisiana, Dennis Bargher Jr. filed a 42 U.S.C. § 1983 action\nagainst Major Craig White, Sergeant Davidson, and Master Sergeant Wilkes.\nBargher alleged that these three prison employees violated his Eighth\nAmendment rights by encouraging another inmate to injure him, locking that\ninmate in a cell with him, and then standing by while that inmate “brutal[ly]\nattack[ed]” him.\n Specifically, Bargher alleged the following facts, none of which\nDefendants dispute on appeal. Prior to the attack, Bargher provided the\nWarden with information about an extortion scheme within the prison that\ninvolved Officer White. White learned about this and confronted Bargher.\nWhite then repeatedly spoke with Johnathan Veal, an inmate who had\npreviously assaulted another inmate, and encouraged Veal to injure Bargher.\nWhite falsely told Veal that Bargher had been the one to report Veal for the\nprevious assault, and told Veal that Bargher was “a rat and had to die.”\nBargher learned that, based on White’s lies, Veal planned to seek revenge on\nhim.\n\n\n 2\n\f Case: 17-30455 Document: 00515020275 Page: 3 Date Filed: 07/02/2019\n\n\n\n No. 17-30455\n On April 18, 2015, Bargher was taken from his cell and later escorted\nback by Sergeant Davidson. When Davidson was returning Bargher to his cell,\nBargher noticed that another inmate was unexpectedly already inside.\nBargher objected to going back into the cell, but Davidson commanded him to\n“Get the F in the cell!” Once locked inside, Bargher realized the other inmate\nwas Veal, who immediately began to attack him. Veal beat Bargher while\nDavidson watched and laughed, and Veal continued to do so until Davidson\neventually stopped Veal and removed Bargher from the cell. As a result of the\nattack, Bargher suffered a broken jaw, broken teeth, and facial nerve damage.\nHe states that he has permanent disfigurement and pain as well as significant\nemotional distress and anxiety.\n As noted, Defendants neither admit not deny this account in the district\ncourt or on appeal, but instead dispute what remedies Bargher sought in\nresponse. Under E.H.C.C.’s Administrative Remedy Procedure, inmates must\nfirst submit internal, written grievances—referred to as “ARPs”—by placing\nthem in a box, from which they are then collected by prison staff, assigned a\ncase number, and entered into E.H.C.C.’s computerized records. The record\nprovides no indication that inmates receive notice when their ARPs are\nreceived or told what case number are assigned to which of their ARPs.\nInstead, they only receive notice when an ARP, as identified by the number\nassigned to it, is accepted or rejected. This has the potential to create confusion\naround which ARPs have received responses and which have not.\n Bargher asserts in a sworn affidavit and in his brief on appeal that he\nsubmitted several ARPs through this internal grievance procedure related to\nthe April attack. He has additionally provided other documents, written before\nthis lawsuit, in which he declared that he submitted the same ARPs. He has\nconsistently contended that he first submitted two ARPs before the attack, in\nwhich he declared that Veal was his “known enemy” and needed to be kept\n 3\n\f Case: 17-30455 Document: 00515020275 Page: 4 Date Filed: 07/02/2019\n\n\n\n No. 17-30455\naway from him. He has repeatedly also asserted that, on June 12, 2015, he\nsubmitted a five-page ARP (the June ARP) detailing Veal’s April attack and\nthe Defendants’ culpability. The record includes a copy of the June ARP that\nBargher sent to his attorney, Donna Grodner as well as an accompanying letter\nin which he informed her that neither that ARP nor the two he submitted about\nVeal before the attack had received any response. This letter and copy of the\nJune ARP are post-marked June 25, 2015 and stamped as received by Grodner\non June 30, 2015.\n On October 7, 2015, Grodner sent a letter to the Warden inquiring about\nthe status of Bargher’s three ARPs for which he never received a response. On\nOctober 22, the Warden responded that Bargher had no ARPs pending.\n On October 6, 2015, Bargher submitted an ARP (ARP 744) requesting a\nresponse to the other ARPs that he asserted therein were still pending. This\nARP was given case number EHCC-2015-744, and rejected two days later on\nOctober 8, 2015, for “addressing more than one complaint.” The rejection\nnotice identifies the ARP by its number and contains no other reference to its\ncontent.\n On November 3, 2015, Bargher submitted another ARP (ARP 819)\ndescribing the April assault and requesting remedies. In this submission,\nBargher references other ARPs that he says he had submitted that “must have\nbeen lost, or better yet never received.” This ARP was assigned number EHCC-\n2015-819 and rejected November 4, again with a form that provides only the\ncase number to identify which ARP is being rejected.\n Bargher brought suit on May 4, 2016. Defendants subsequently filed a\nmotion for summary judgment, arguing that Bargher’s claims were barred by\nthe expiration of the applicable one-year prescription period. Defendants\nnoted that the timeframe for Bargher’s § 1983 claim commenced on April 18,\n2015, the date he alleges he was attacked. While acknowledging that the\n 4\n\f Case: 17-30455 Document: 00515020275 Page: 5 Date Filed: 07/02/2019\n\n\n\n No. 17-30455\nprescription period is suspended while the inmate is awaiting a response to a\nrelated ARP, Defendants attested that the only ARP Bargher submitted\naddressing the April attack was ARP 819, which tolled the period for only two\ndays from when it was submitted on November 3, 2015, until November 4,\n2015, when it was rejected.\n In his opposition to summary judgment, Bargher asserted that the June\nARP suspended the prescription period. In his brief in opposition, Bargher\nstated that: “[the June ARP] was either never answered or it is [ARP 819] that,\non November 4, 2015 . . . was rejected.” The district court denied Defendants’\nfirst motion for summary judgment, noting that, if Bargher had in fact\nsubmitted the June ARP as he alleged, then his claim was not prescribed.\n Defendants then filed new motions for summary judgment with\nadditional evidence, including the prison’s records of all ARPs that Bargher\nhad submitted since 2013. There is no record therein of an ARP submitted in\nJune 2015 nor either of the two ARPs that Bargher asserts he filed before the\nattack requesting that Veal be kept away from him. Instead, the records show\nthat the first ARP Bargher filed in 2015 was ARP 744 in October, followed by\nARP 819 in November. The copies of ARP 744 and 819 that Defendants\nprovided demonstrate that ARP 819 is the only one in the records that\ndiscusses the April attack. It is also clear from these documents that ARP 819\nis not itself the June ARP: the district court noted that “unlike the five page\nARP Plaintiff claims he filed on June 12, 2015, ARP No. EHCC-2015-0819 was\nonly four pages and dated October 30th-31st, 2015.” Defendants also\nsubmitted an affidavit from the ARP Screening Officer who oversees all ARP\nrequest from inmates, in which she attested that the records provided were a\ncomplete accounting of the ARPs Bargher filed from 2013 through 2015, and\nthat the June ARP did not exist in their records. Accordingly, Defendants\nreasserted that the prescription period was only suspended from November 3,\n 5\n\f Case: 17-30455 Document: 00515020275 Page: 6 Date Filed: 07/02/2019\n\n\n\n No. 17-30455\n2015, the date Bargher filed ARP 819, until November 4, 2015, the date it was\nrejected. Defendants additionally argued, in the alternative, that even if\nBargher’s claims were not prescribed, they should be dismissed for Bargher’s\nfailure to exhaust administrative remedies as required under the Prison\nLitigation Reform Act (PLRA).\n In his response, Bargher continued to declare that he had, in fact,\nsubmitted the June ARP even though it was not reflected in the prison’s\nrecords. Bargher posited that the June ARP and the two prior ARPs about\nVeal were absent from the records not because he had not submitted them, but\nbecause the records themselves had likely been tampered with by Defendants.\n In support of this allegation, Bargher submitted an additional affidavit\ndetailing an incident that occurred after he filed his original complaint, when\nWhite allegedly demonstrated his willingness and ability to sabotage Bargher’s\nprison records. Bargher asserted that, on January 1, 2017, shortly before he\nwas later released from prison, White called him into the security office. White\nalso called in his wife, who worked in the prison’s records department, and he\nbegan looking through Bargher’s prison file on the computer. White then\nprinted out about twenty pages of Bargher’s files, deleted the electronic copies,\nand “rip[ped] up all of [the] file papers and thr[ew] them in the trash.” White\nthen demanded Bargher’s new home address and took Bargher’s birth\ncertificate from his file. When Bargher was released two weeks later, the birth\ncertificate was still missing from his personal packet of papers provided to him.\n The district court issued a ruling granting Defendants’ motions for\nsummary judgment and dismissing Bargher’s claims with prejudice. The\ndistrict court emphasized that there was no record in the prison’s files of the\nJune ARP, and that Bargher’s “self-serving attestation” stating that he filed\nan ARP in June 2015 was insufficient to satisfy this burden to prove that the\nprescription period had been suspended for anything more than the two days\n 6\n\f Case: 17-30455 Document: 00515020275 Page: 7 Date Filed: 07/02/2019\n\n\n\n No. 17-30455\nin November when ARP 819 was pending. Alternatively, the district court\nconcluded that even if Bargher had submitteed the June ARP and his claims\nwere not prescribed, he had failed to show that he exhausted the\nadministrative remedies required of inmates under the PLRA. Bargher filed\na timely notice of appeal.\n DISCUSSION\n A. Suspension of the Prescription Period\n A district court’s grant of summary judgment is reviewed de novo.\nGrogan v. Kumar, 873 F.3d 273, 277 (5th Cir. 2017) (citations omitted).\nSummary judgment is only appropriate if the moving party demonstrates that\n“there is no genuine dispute as to any material fact and the movant is entitled\nto judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(a)). When\nconsidering a motion for summary judgment, a court must make all reasonable\nfactual inferences from the evidence in the light most favorable to the non-\nmovant. Austin v. Kroger Tex., L.P., 864 F.3d 326, 328–29 (5th Cir. 2017)\n(citations omitted). However, “conclusory allegations, speculation, and\nunsubstantiated assertions are inadequate to satisfy the nonmovant’s burden.”\nDouglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996).\n Notably, Defendants have not offered any evidence to dispute Bargher’s\ndetailed account of Veal’s attack and the Defendants’ role in orchestrating it.\nIn viewing the evidence in the light most favorable to Bargher, we must\ntherefore infer for the purposes of our review that Defendants arranged this\nattack precisely as Bargher describes. See Austin, 864 F.3d at 328–29. The\nonly dispute before this court is whether Bargher is prescribed from seeking\njudicial relief for Defendants’ alleged conduct.\n Because there is no federal statute of limitations for actions brought\npursuant to § 1983, federal courts borrow the forum state’s general personal\ninjury limitations period. Wallace v. Kato, 549 U.S. 384, 387 (2007); Owens v.\n 7\n\f Case: 17-30455 Document: 00515020275 Page: 8 Date Filed: 07/02/2019\n\n\n\n No. 17-30455\nOkure, 488 U.S. 235, 249–50 (1989). The forum state’s applicable tolling\nprovisions are also given full effect. Smith v. Reg’l Transit Auth., 827 F.3d 412,\n421 (5th Cir. 2016) (internal quotation marks and citation omitted).\nLouisiana’s one-year liberative prescription period thus applies to Bargher’s\n§ 1983 action. See id.; LA. CIV. CODE ANN. art. 3492; see also LA. CIV. CODE\nANN. art. 3447 (“Liberative prescription is a mode of barring of actions as a\nresult of inaction for a period of time.”). “This prescription commences to run\nfrom the day injury or damage is sustained.” La. Civ. Code Ann. art. 3492. “If\na prescriptive period consists of one or more years, prescription accrues upon\nthe expiration of the day of the last year that corresponds with the date of the\ncommencement of prescription.” La. Civ. Code Ann. art. 3456.\n Prescription is suspended upon the filing of a prisoner’s grievance “until\nthe final agency decision is delivered.” La. Rev. Stat. Ann. § 15:1172(E); see\nAllen v. State, 107 So. 3d 106, 109–10 (La. Ct. App. 2012). “The period of\nsuspension is not counted toward accrual of prescription.” La. Civ. Code Ann.\nart. 3472; cf. La. Civ. Code Ann. art. 3466 (“If prescription is interrupted, the\ntime that has run is not counted. Prescription commences to run anew from\nthe last day of interruption.”).\n There is no dispute that Bargher’s § 1983 action accrued on April 18,\n2015, and that the applicable prescription period, if not suspended, expired\nApril 18, 2016. Bargher argues, however, that there is a genuine dispute as to\nwhether he submitted an internal grievance on June 12, 2015 (the June ARP),\nwhich the district court acknowledged would have suspended the prescription\nperiod and rendered his claims timely. We agree.\n In finding otherwise, the district court improperly concluded that a\nparty’s “self-serving” sworn statements cannot create a genuine dispute of\nmaterial fact. Notably, the unpublished case that the district court relied on\ndiscussed a “conclusory, unsworn affidavit.” Tyler v. Cedar Hill Independent\n 8\n\f Case: 17-30455 Document: 00515020275 Page: 9 Date Filed: 07/02/2019\n\n\n\n No. 17-30455\nSch. Dist, 426 F. App’x 306, 309 (5th Cir. 2011) (per curium) (emphasis added)\n(citing DIRECTV, Inc. v. Budden, 420 F.3d 521, 531 (5th Cir. 2005). Simply\nbeing “self-serving,” however, does not prevent a party’s assertions from\ncreating a dispute of fact. See Dallas/Fort Worth Int’l Airport Bd. v. INet\nAirport Sys., Inc., 819 F.3d 245, 253 n.14 (5th Cir.) (“Evidence proffered by one\nside to support or defeat a motion for summary judgment will inevitably appear\n‘self-serving.’”)). A plaintiff in car wreck case who asserts that she had a green\nlight and that the defendant ran a red light is also making highly “self-serving”\nstatements, but no one would say that the district court can ignore them.\nSimilarly, Bargher’s statements that he submitted unrecorded ARPs and that\nWhite can and has tampered with his prison records are not merely “conclusory\nallegations, speculation, and unsubstantiated assertions,” see Douglass, 79\nF.3d at 1429, but instead detailed testimony from his personal knowledge.\n Further, Bargher’s affidavits are not the only evidence to support his\naccount of the facts. Though the prison’s records submitted by Defendants\nindisputably include no mention of Bargher submitting the June ARP, it is\nclear that he did write the June ARP shortly after the attack. The document\nin question is included in the record, prepared in the same handwriting as\nBargher’s recorded ARPs and postmarked to his attorney June 25, 2015.\nThough this does not of course prove that he followed the correct procedures to\nsubmit the June ARP through E.H.C.C.’s internal grievance system, it\ncertainly lends credence to his version of events when viewed in the light most\nfavorable to him. The record also demonstrates that Bargher has consistently\nmaintained both before and during this lawsuit—in letters to his lawyer, in his\nARPs that are on record with the prison, and in his affidavits—that he\nsubmitted the June ARP and the prior ARPs about Veal but received no\nresponse.\n\n\n 9\n\f Case: 17-30455 Document: 00515020275 Page: 10 Date Filed: 07/02/2019\n\n\n\n No. 17-30455\n The district court found that there was no mention of the June ARP in\nBargher’s complaint. The complaint specifically references two ARPs, one that\nwas rejected on October 8, 2015 and one on November 4, 2015. The complaint\ndoes not state when either ARP was filed. From the record that was\nsubsequently developed, we know that these ARPs are ARP 744 and ARP 819,\nrespectively—not the June ARP.\n We believe, however, that the lack of transparency in E.H.C.C.’s\ngrievance procedures could reasonably explain this apparent omission.\nBargher would have known from the rejection notices he received that an ARP\ndesignated as “EHCC-2015-744” was denied on October 8 and another,\ndesignated as “EHCC-2015-819” was denied on November 4. Bargher argues,\nhowever, that he previously believed that one of these rejections was for the\nJune ARP, and only later during the litigation discovered that neither of these\ndesignations referred to the June ARP. There is other evidence that Bargher\nwas genuinely confused about this: in one of his affidavits, he stated that he\ndid not receive a response to the June ARP “until November 2015”—the month\nhe actually received the rejection for ARP 819. We are not convinced that\nBargher’s mention in his complaint of only the two ARPs rejected in October\nand November would prevent a reasonable jury from finding that he submitted\nthe June ARP.\n Bargher has further provided summary judgment evidence that would\npermit a reasonable jury to conclude that White had both the opportunity and\nthe motive to either intercept the June ARP to prevent it from being logged or\nto delete it from the records. In a sworn affidavit, Bargher claims that he\npersonally saw White, with help from his wife who works in the records\ndepartment at E.H.C.C., tamper with his records and destroy portions of them.\nWe reiterate that, when viewing all evidence in the light most favorable to\nBargher as we must do, we draw the inference that White and the other guards\n 10\n\f Case: 17-30455 Document: 00515020275 Page: 11 Date Filed: 07/02/2019\n\n\n\n No. 17-30455\ndid indeed arrange for Veal to attack Bargher. It is then certainly reasonable\nto infer that White had every reason to cover up any record of the June ARP\ndescribing his involvement in this attack. 1\n Because we find a genuine issue of material fact as whether Bargher\nfiled the June ARP, the district court erred by dismissing Bargher’s claims as\nbarred by the prescription period.\n B. Failure to Exhaust Administrative Remedies\n The district court alternatively found that, even if a reasonable jury\ncould find that Bargher filed the June ARP, dismissal was proper because\nBargher failed to exhaust his administrative remedies before filing suit. We\nreview a dismissal for failure to exhaust administrative remedies de novo.\nPowe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999).\n Under the Prison Litigation Reform Act (PLRA): “No action shall be\nbrought with respect to prison . . . by a prisoner confined in any jail, prison, or\nother correctional facility until such administrative remedies as are available\nare exhausted.” 42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 84\n(2006). “Proper exhaustion demands compliance with an agency’s deadlines\nand other critical procedural rules.” Woodford, 548 U.S. at 90. The petitioner\nmust have “pursue[d] the grievance remedy to conclusion”—substantial\ncompliance with administrative procedures is not enough. Wright v.\nHollingsworth, 260 F.3d 357, 358 (5th Cir. 2001).\n Louisiana’s Administrative Remedy Procedure has two steps, and a\nprisoner has not exhausted his remedies until he has completed both. See\nDillon v. Rogers, 596 F.3d 260, 265–66 (5th Cir. 2010). A prisoner first submits\n\n\n 1 Though ARP 819 also describes the attack and implicates White, it was filed too late\nfor Bargher to receive relief, which would weaken any motive to interfere with its filing. See\nLa. Admin. Code tit. 22, pt. I, § 325(J)(1) (a grievance at this step shall be filed “within 90\ndays of an alleged event.”).\n\n 11\n\f Case: 17-30455 Document: 00515020275 Page: 12 Date Filed: 07/02/2019\n\n\n\n No. 17-30455\na request to the warden briefly setting out the basis for the claim and the relief\nsought—these are the “ARPs” discussed at length above. Id. at 265. The\nwarden then has 40 days to respond. Id. at 265–66. If the inmate is\ndissatisfied with the warden’s response, or no response is received within the\n40-day time period, the inmate may proceed to the second step and appeal to\nthe Secretary of the Louisiana Department of Public Safety and Corrections.\nId. at 266. Critically, a prisoner who does not receive a timely response to his\ninitial ARP is not prevented from filing a second-step ARP. See id.; LA. ADMIN.\nCODE tit. 22, pt. I, § 325(J)(1)(c) (“expiration of response time limits shall\nentitle the offender to move on to the next step in the process.”).\n Bargher acknowledges that he never proceeded to the second step of the\ngrievance process, but instead incorrectly contends that the second step was\nnot available until the prison responded to his first-step grievance. However,\nwhen prison officials failed to timely respond to his first-step grievance,\nBargher was entitled under § 325(J)(1)(c) to proceed to the second step. See\nDillon, 596 F.3d at 266. Because Bargher thus filed his §1983 complaint prior\nto the completion of the administrative grievance process, the district court\nproperly found that Bargher failed to exhaust the required administrative\nremedies before bringing this suit while incarcerated.\n The district court dismissed Bargher’s suit with prejudice. Failure to\nexhaust, however, warrants dismissal without prejudice, which permits the\nlitigant to refile if he exhausts or is otherwise no longer barred by the PLRA\nrequirements. See Wright, 260 F.3d 357; Booth v. Churner, 532 U.S. 731, 735\n(2001).\n This distinction between dismissal with or without prejudice is critical\nin Bargher’s case because he was released from prison during the pendency of\nthis suit. Bargher’s subsequent release does not relieve him of the requirement\nto exhaust administrative remedies for this current legal action that he\n 12\n\f Case: 17-30455 Document: 00515020275 Page: 13 Date Filed: 07/02/2019\n\n\n\n No. 17-30455\ninitiated while in prison. Williams v. Henagan, 595 F.3d 610, 619 (5th Cir.\n2010) (holding that when plaintiff “was incarcerated when he brought this suit\n. . . [his] release during the pendency of the suit does not relieve him the\nobligation to comply with 42 U.S.C. § 1997e[‘s exhaustion requirements]”). By\nits plain language, however, the PLRA’s restrictions do not apply to actions\nfiled by former inmates following their release. 42 U.S.C. § 1997e(a) (“No\naction shall be brought . . . by a prisoner . . . until such administrative remedies\nas are available are exhausted”); see, e.g., Norton v. City of Marietta, 432 F.3d\n1145, 1150 (10th Cir. 2005) (“In light of the PLRA’s plain language . . . . a\nplaintiff who seeks to bring suit about prison life after he has been released\nand is no longer a prisoner does not have to satisfy the PLRA’s exhaustion\nrequirements before bringing suit”); Nerness v. Johnson, 401 F.3d 874, 876 (8th\nCir. 2005) (per curium) (PLRA’s exhaustion requirements do not apply when\nsomeone files suit after release from confinement); Witzke v. Femal, 376 F.3d\n744, 750 (7th Cir. 2004) (same); Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999)\n(same); Duvall v. Dallas Cty., No. CIV.A. 305CV2431B, 2006 WL 3487024, at\n*2 (N.D. Tex. Dec. 1, 2006) (same); see also Janes v. Hernandez, 215 F.3d 541,\n542 (5th Cir. 2000) (“Because Janes was not a prisoner when this complaint\nwas filed, the [attorney’s] fee limits of the [Prison Litigation Reform] Act did\nnot apply.”).\n Accordingly, though his present action must be dismissed, Bargher\nwould not be bound by the PLRA’s exhaustion requirements if he were to\nimmediately refile. See Cox v. Mayer, 332 F.3d 422, 424–25 (6th Cir. 2003)\n(holding that dismissal was required when plaintiff filed unexhausted claims\nwhile a prisoner but that his release during pendency of the suit meant he\ncould subsequently refile his claims without exhausting: “no longer in prison,\nplaintiff ha[s] no remedies to exhaust”); see also Ahmed v. Dragovich, 297 F.3d\n201, 210 (3d Cir. 2002) (“Although Ahmed would have been free of the\n 13\n\f Case: 17-30455 Document: 00515020275 Page: 14 Date Filed: 07/02/2019\n\n\n\n No. 17-30455\nstrictures of the PLRA[‘s exhaustion requirements] if he had filed a timely\ncomplaint after his release from prison, he is bound by the PLRA because his\nsuit was filed . . . almost three years before he was released.”). Because this is\ntherefore not an occasion where “modification of the judgment would be futile,”\nthe district court’s judgment should be amended to dismissal without\nprejudice. See, e.g., Rankin v. Pearson, 612 F. App'x 204, 206 (5th Cir. 2015)\n(declining to find that the district court erred in that case by dismissing with\nprejudice because the plaintiff there was required but would be unable to\nexhaust his administrative remedies).\n ***\n For these reasons, we VACATE the district court’s dismissal with\nprejudice and REMAND with instructions to dismiss Bargher’s action without\nprejudice to his ability to timely refile.\n\n\n\n\n 14\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Dennis Bargher v. Craig White\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-02\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-30455 Document: 00515020275 Page: 1 Date Filed: 07/02/2019\\n\\n\\n\\n\\n REVISED July 2, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n July 1, 2019\\n No. 17-30455\\n Lyle W. Cayce\\n Clerk\\nDENNIS BARGHER,\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nCRAIG WHITE, Major; UNKNOWN DAVISON, Sergeant; UNKNOWN\\nWILKES, Master Sergeant,\\n\\n Defendants - Appellees\\n\\n\\n\\n Appeal from the United States District Court\\n for the Middle District of Louisiana\\n\\n\\nBefore STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.\\nJAMES L. DENNIS, Circuit Judge:\\n While a prisoner at the Elayn Hunt Correctional Center in Louisiana,\\nDennis Bargher Jr. brought suit under 42 U.S.C. § 1983 against prison official\\ndefendants alleging that they arranged for another inmate to attack him and\\nstood by while the other inmate severely injured him. While Bargher’s legal\\naction was pending, he was released from prison. The district court granted\\nsummary judgment for the defendants, dismissing Bargher’s claims with\\nprejudice as barred by the prescription period or, in the alternative, for\\n\\f Case: 17-30455 Document: 00515020275 Page: 2 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-30455\\nBargher’s failure to exhaust administrative remedies as required under the\\nPrison Litigation Reform Act (PLRA).\\n We find that fact issues remain as to whether the prescription period was\\nsuspended and, thus, as to whether Bargher’s claims were timely. Because we\\nadditionally hold that Bargher failed to exhaust administrative remedies, the\\nproper disposition was therefore dismissal without prejudice. We VACATE the\\ndistrict court’s judgment and REMAND with instructions to dismiss Bargher’s\\nclaims without prejudice to his ability to refile now that he is no longer bound\\nby the PLRA’s exhaustion requirements.\\n FACTUAL AND PROCEDURAL BACKGROUND\\n On May 4, 2016, while an inmate at the Elayn Hunt Correctional Center\\n(E.H.C.C.) in Louisiana, Dennis Bargher Jr. filed a 42 U.S.C. § 1983 action\\nagainst Major Craig White, Sergeant Davidson, and Master Sergeant Wilkes.\\nBargher alleged that these three prison employees violated his Eighth\\nAmendment rights by encouraging another inmate to injure him, locking that\\ninmate in a cell with him, and then standing by while that inmate “brutal[ly]\\nattack[ed]” him.\\n Specifically, Bargher alleged the following facts, none of which\\nDefendants dispute on appeal. Prior to the attack, Bargher provided the\\nWarden with information about an extortion scheme within the prison that\\ninvolved Officer White. White learned about this and confronted Bargher.\\nWhite then repeatedly spoke with Johnathan Veal, an inmate who had\\npreviously assaulted another inmate, and encouraged Veal to injure Bargher.\\nWhite falsely told Veal that Bargher had been the one to report Veal for the\\nprevious assault, and told Veal that Bargher was “a rat and had to die.”\\nBargher learned that, based on White’s lies, Veal planned to seek revenge on\\nhim.\\n\\n\\n 2\\n\\f Case: 17-30455 Document: 00515020275 Page: 3 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-30455\\n On April 18, 2015, Bargher was taken from his cell and later escorted\\nback by Sergeant Davidson. When Davidson was returning Bargher to his cell,\\nBargher noticed that another inmate was unexpectedly already inside.\\nBargher objected to going back into the cell, but Davidson commanded him to\\n“Get the F in the cell!” Once locked inside, Bargher realized the other inmate\\nwas Veal, who immediately began to attack him. Veal beat Bargher while\\nDavidson watched and laughed, and Veal continued to do so until Davidson\\neventually stopped Veal and removed Bargher from the cell. As a result of the\\nattack, Bargher suffered a broken jaw, broken teeth, and facial nerve damage.\\nHe states that he has permanent disfigurement and pain as well as significant\\nemotional distress and anxiety.\\n As noted, Defendants neither admit not deny this account in the district\\ncourt or on appeal, but instead dispute what remedies Bargher sought in\\nresponse. Under E.H.C.C.’s Administrative Remedy Procedure, inmates must\\nfirst submit internal, written grievances—referred to as “ARPs”—by placing\\nthem in a box, from which they are then collected by prison staff, assigned a\\ncase number, and entered into E.H.C.C.’s computerized records. The record\\nprovides no indication that inmates receive notice when their ARPs are\\nreceived or told what case number are assigned to which of their ARPs.\\nInstead, they only receive notice when an ARP, as identified by the number\\nassigned to it, is accepted or rejected. This has the potential to create confusion\\naround which ARPs have received responses and which have not.\\n Bargher asserts in a sworn affidavit and in his brief on appeal that he\\nsubmitted several ARPs through this internal grievance procedure related to\\nthe April attack. He has additionally provided other documents, written before\\nthis lawsuit, in which he declared that he submitted the same ARPs. He has\\nconsistently contended that he first submitted two ARPs before the attack, in\\nwhich he declared that Veal was his “known enemy” and needed to be kept\\n 3\\n\\f Case: 17-30455 Document: 00515020275 Page: 4 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-30455\\naway from him. He has repeatedly also asserted that, on June 12, 2015, he\\nsubmitted a five-page ARP (the June ARP) detailing Veal’s April attack and\\nthe Defendants’ culpability. The record includes a copy of the June ARP that\\nBargher sent to his attorney, Donna Grodner as well as an accompanying letter\\nin which he informed her that neither that ARP nor the two he submitted about\\nVeal before the attack had received any response. This letter and copy of the\\nJune ARP are post-marked June 25, 2015 and stamped as received by Grodner\\non June 30, 2015.\\n On October 7, 2015, Grodner sent a letter to the Warden inquiring about\\nthe status of Bargher’s three ARPs for which he never received a response. On\\nOctober 22, the Warden responded that Bargher had no ARPs pending.\\n On October 6, 2015, Bargher submitted an ARP (ARP 744) requesting a\\nresponse to the other ARPs that he asserted therein were still pending. This\\nARP was given case number EHCC-2015-744, and rejected two days later on\\nOctober 8, 2015, for “addressing more than one complaint.” The rejection\\nnotice identifies the ARP by its number and contains no other reference to its\\ncontent.\\n On November 3, 2015, Bargher submitted another ARP (ARP 819)\\ndescribing the April assault and requesting remedies. In this submission,\\nBargher references other ARPs that he says he had submitted that “must have\\nbeen lost, or better yet never received.” This ARP was assigned number EHCC-\\n2015-819 and rejected November 4, again with a form that provides only the\\ncase number to identify which ARP is being rejected.\\n Bargher brought suit on May 4, 2016. Defendants subsequently filed a\\nmotion for summary judgment, arguing that Bargher’s claims were barred by\\nthe expiration of the applicable one-year prescription period. Defendants\\nnoted that the timeframe for Bargher’s § 1983 claim commenced on April 18,\\n2015, the date he alleges he was attacked. While acknowledging that the\\n 4\\n\\f Case: 17-30455 Document: 00515020275 Page: 5 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-30455\\nprescription period is suspended while the inmate is awaiting a response to a\\nrelated ARP, Defendants attested that the only ARP Bargher submitted\\naddressing the April attack was ARP 819, which tolled the period for only two\\ndays from when it was submitted on November 3, 2015, until November 4,\\n2015, when it was rejected.\\n In his opposition to summary judgment, Bargher asserted that the June\\nARP suspended the prescription period. In his brief in opposition, Bargher\\nstated that: “[the June ARP] was either never answered or it is [ARP 819] that,\\non November 4, 2015 . . . was rejected.” The district court denied Defendants’\\nfirst motion for summary judgment, noting that, if Bargher had in fact\\nsubmitted the June ARP as he alleged, then his claim was not prescribed.\\n Defendants then filed new motions for summary judgment with\\nadditional evidence, including the prison’s records of all ARPs that Bargher\\nhad submitted since 2013. There is no record therein of an ARP submitted in\\nJune 2015 nor either of the two ARPs that Bargher asserts he filed before the\\nattack requesting that Veal be kept away from him. Instead, the records show\\nthat the first ARP Bargher filed in 2015 was ARP 744 in October, followed by\\nARP 819 in November. The copies of ARP 744 and 819 that Defendants\\nprovided demonstrate that ARP 819 is the only one in the records that\\ndiscusses the April attack. It is also clear from these documents that ARP 819\\nis not itself the June ARP: the district court noted that “unlike the five page\\nARP Plaintiff claims he filed on June 12, 2015, ARP No. EHCC-2015-0819 was\\nonly four pages and dated October 30th-31st, 2015.” Defendants also\\nsubmitted an affidavit from the ARP Screening Officer who oversees all ARP\\nrequest from inmates, in which she attested that the records provided were a\\ncomplete accounting of the ARPs Bargher filed from 2013 through 2015, and\\nthat the June ARP did not exist in their records. Accordingly, Defendants\\nreasserted that the prescription period was only suspended from November 3,\\n 5\\n\\f Case: 17-30455 Document: 00515020275 Page: 6 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-30455\\n2015, the date Bargher filed ARP 819, until November 4, 2015, the date it was\\nrejected. Defendants additionally argued, in the alternative, that even if\\nBargher’s claims were not prescribed, they should be dismissed for Bargher’s\\nfailure to exhaust administrative remedies as required under the Prison\\nLitigation Reform Act (PLRA).\\n In his response, Bargher continued to declare that he had, in fact,\\nsubmitted the June ARP even though it was not reflected in the prison’s\\nrecords. Bargher posited that the June ARP and the two prior ARPs about\\nVeal were absent from the records not because he had not submitted them, but\\nbecause the records themselves had likely been tampered with by Defendants.\\n In support of this allegation, Bargher submitted an additional affidavit\\ndetailing an incident that occurred after he filed his original complaint, when\\nWhite allegedly demonstrated his willingness and ability to sabotage Bargher’s\\nprison records. Bargher asserted that, on January 1, 2017, shortly before he\\nwas later released from prison, White called him into the security office. White\\nalso called in his wife, who worked in the prison’s records department, and he\\nbegan looking through Bargher’s prison file on the computer. White then\\nprinted out about twenty pages of Bargher’s files, deleted the electronic copies,\\nand “rip[ped] up all of [the] file papers and thr[ew] them in the trash.” White\\nthen demanded Bargher’s new home address and took Bargher’s birth\\ncertificate from his file. When Bargher was released two weeks later, the birth\\ncertificate was still missing from his personal packet of papers provided to him.\\n The district court issued a ruling granting Defendants’ motions for\\nsummary judgment and dismissing Bargher’s claims with prejudice. The\\ndistrict court emphasized that there was no record in the prison’s files of the\\nJune ARP, and that Bargher’s “self-serving attestation” stating that he filed\\nan ARP in June 2015 was insufficient to satisfy this burden to prove that the\\nprescription period had been suspended for anything more than the two days\\n 6\\n\\f Case: 17-30455 Document: 00515020275 Page: 7 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-30455\\nin November when ARP 819 was pending. Alternatively, the district court\\nconcluded that even if Bargher had submitteed the June ARP and his claims\\nwere not prescribed, he had failed to show that he exhausted the\\nadministrative remedies required of inmates under the PLRA. Bargher filed\\na timely notice of appeal.\\n DISCUSSION\\n A. Suspension of the Prescription Period\\n A district court’s grant of summary judgment is reviewed de novo.\\nGrogan v. Kumar, 873 F.3d 273, 277 (5th Cir. 2017) (citations omitted).\\nSummary judgment is only appropriate if the moving party demonstrates that\\n“there is no genuine dispute as to any material fact and the movant is entitled\\nto judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(a)). When\\nconsidering a motion for summary judgment, a court must make all reasonable\\nfactual inferences from the evidence in the light most favorable to the non-\\nmovant. Austin v. Kroger Tex., L.P., 864 F.3d 326, 328–29 (5th Cir. 2017)\\n(citations omitted). However, “conclusory allegations, speculation, and\\nunsubstantiated assertions are inadequate to satisfy the nonmovant’s burden.”\\nDouglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996).\\n Notably, Defendants have not offered any evidence to dispute Bargher’s\\ndetailed account of Veal’s attack and the Defendants’ role in orchestrating it.\\nIn viewing the evidence in the light most favorable to Bargher, we must\\ntherefore infer for the purposes of our review that Defendants arranged this\\nattack precisely as Bargher describes. See Austin, 864 F.3d at 328–29. The\\nonly dispute before this court is whether Bargher is prescribed from seeking\\njudicial relief for Defendants’ alleged conduct.\\n Because there is no federal statute of limitations for actions brought\\npursuant to § 1983, federal courts borrow the forum state’s general personal\\ninjury limitations period. Wallace v. Kato, 549 U.S. 384, 387 (2007); Owens v.\\n 7\\n\\f Case: 17-30455 Document: 00515020275 Page: 8 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-30455\\nOkure, 488 U.S. 235, 249–50 (1989). The forum state’s applicable tolling\\nprovisions are also given full effect. Smith v. Reg’l Transit Auth., 827 F.3d 412,\\n421 (5th Cir. 2016) (internal quotation marks and citation omitted).\\nLouisiana’s one-year liberative prescription period thus applies to Bargher’s\\n§ 1983 action. See id.; LA. CIV. CODE ANN. art. 3492; see also LA. CIV. CODE\\nANN. art. 3447 (“Liberative prescription is a mode of barring of actions as a\\nresult of inaction for a period of time.”). “This prescription commences to run\\nfrom the day injury or damage is sustained.” La. Civ. Code Ann. art. 3492. “If\\na prescriptive period consists of one or more years, prescription accrues upon\\nthe expiration of the day of the last year that corresponds with the date of the\\ncommencement of prescription.” La. Civ. Code Ann. art. 3456.\\n Prescription is suspended upon the filing of a prisoner’s grievance “until\\nthe final agency decision is delivered.” La. Rev. Stat. Ann. § 15:1172(E); see\\nAllen v. State, 107 So. 3d 106, 109–10 (La. Ct. App. 2012). “The period of\\nsuspension is not counted toward accrual of prescription.” La. Civ. Code Ann.\\nart. 3472; cf. La. Civ. Code Ann. art. 3466 (“If prescription is interrupted, the\\ntime that has run is not counted. Prescription commences to run anew from\\nthe last day of interruption.”).\\n There is no dispute that Bargher’s § 1983 action accrued on April 18,\\n2015, and that the applicable prescription period, if not suspended, expired\\nApril 18, 2016. Bargher argues, however, that there is a genuine dispute as to\\nwhether he submitted an internal grievance on June 12, 2015 (the June ARP),\\nwhich the district court acknowledged would have suspended the prescription\\nperiod and rendered his claims timely. We agree.\\n In finding otherwise, the district court improperly concluded that a\\nparty’s “self-serving” sworn statements cannot create a genuine dispute of\\nmaterial fact. Notably, the unpublished case that the district court relied on\\ndiscussed a “conclusory, unsworn affidavit.” Tyler v. Cedar Hill Independent\\n 8\\n\\f Case: 17-30455 Document: 00515020275 Page: 9 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-30455\\nSch. Dist, 426 F. App’x 306, 309 (5th Cir. 2011) (per curium) (emphasis added)\\n(citing DIRECTV, Inc. v. Budden, 420 F.3d 521, 531 (5th Cir. 2005). Simply\\nbeing “self-serving,” however, does not prevent a party’s assertions from\\ncreating a dispute of fact. See Dallas/Fort Worth Int’l Airport Bd. v. INet\\nAirport Sys., Inc., 819 F.3d 245, 253 n.14 (5th Cir.) (“Evidence proffered by one\\nside to support or defeat a motion for summary judgment will inevitably appear\\n‘self-serving.’”)). A plaintiff in car wreck case who asserts that she had a green\\nlight and that the defendant ran a red light is also making highly “self-serving”\\nstatements, but no one would say that the district court can ignore them.\\nSimilarly, Bargher’s statements that he submitted unrecorded ARPs and that\\nWhite can and has tampered with his prison records are not merely “conclusory\\nallegations, speculation, and unsubstantiated assertions,” see Douglass, 79\\nF.3d at 1429, but instead detailed testimony from his personal knowledge.\\n Further, Bargher’s affidavits are not the only evidence to support his\\naccount of the facts. Though the prison’s records submitted by Defendants\\nindisputably include no mention of Bargher submitting the June ARP, it is\\nclear that he did write the June ARP shortly after the attack. The document\\nin question is included in the record, prepared in the same handwriting as\\nBargher’s recorded ARPs and postmarked to his attorney June 25, 2015.\\nThough this does not of course prove that he followed the correct procedures to\\nsubmit the June ARP through E.H.C.C.’s internal grievance system, it\\ncertainly lends credence to his version of events when viewed in the light most\\nfavorable to him. The record also demonstrates that Bargher has consistently\\nmaintained both before and during this lawsuit—in letters to his lawyer, in his\\nARPs that are on record with the prison, and in his affidavits—that he\\nsubmitted the June ARP and the prior ARPs about Veal but received no\\nresponse.\\n\\n\\n 9\\n\\f Case: 17-30455 Document: 00515020275 Page: 10 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-30455\\n The district court found that there was no mention of the June ARP in\\nBargher’s complaint. The complaint specifically references two ARPs, one that\\nwas rejected on October 8, 2015 and one on November 4, 2015. The complaint\\ndoes not state when either ARP was filed. From the record that was\\nsubsequently developed, we know that these ARPs are ARP 744 and ARP 819,\\nrespectively—not the June ARP.\\n We believe, however, that the lack of transparency in E.H.C.C.’s\\ngrievance procedures could reasonably explain this apparent omission.\\nBargher would have known from the rejection notices he received that an ARP\\ndesignated as “EHCC-2015-744” was denied on October 8 and another,\\ndesignated as “EHCC-2015-819” was denied on November 4. Bargher argues,\\nhowever, that he previously believed that one of these rejections was for the\\nJune ARP, and only later during the litigation discovered that neither of these\\ndesignations referred to the June ARP. There is other evidence that Bargher\\nwas genuinely confused about this: in one of his affidavits, he stated that he\\ndid not receive a response to the June ARP “until November 2015”—the month\\nhe actually received the rejection for ARP 819. We are not convinced that\\nBargher’s mention in his complaint of only the two ARPs rejected in October\\nand November would prevent a reasonable jury from finding that he submitted\\nthe June ARP.\\n Bargher has further provided summary judgment evidence that would\\npermit a reasonable jury to conclude that White had both the opportunity and\\nthe motive to either intercept the June ARP to prevent it from being logged or\\nto delete it from the records. In a sworn affidavit, Bargher claims that he\\npersonally saw White, with help from his wife who works in the records\\ndepartment at E.H.C.C., tamper with his records and destroy portions of them.\\nWe reiterate that, when viewing all evidence in the light most favorable to\\nBargher as we must do, we draw the inference that White and the other guards\\n 10\\n\\f Case: 17-30455 Document: 00515020275 Page: 11 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-30455\\ndid indeed arrange for Veal to attack Bargher. It is then certainly reasonable\\nto infer that White had every reason to cover up any record of the June ARP\\ndescribing his involvement in this attack. 1\\n Because we find a genuine issue of material fact as whether Bargher\\nfiled the June ARP, the district court erred by dismissing Bargher’s claims as\\nbarred by the prescription period.\\n B. Failure to Exhaust Administrative Remedies\\n The district court alternatively found that, even if a reasonable jury\\ncould find that Bargher filed the June ARP, dismissal was proper because\\nBargher failed to exhaust his administrative remedies before filing suit. We\\nreview a dismissal for failure to exhaust administrative remedies de novo.\\nPowe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999).\\n Under the Prison Litigation Reform Act (PLRA): “No action shall be\\nbrought with respect to prison . . . by a prisoner confined in any jail, prison, or\\nother correctional facility until such administrative remedies as are available\\nare exhausted.” 42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 84\\n(2006). “Proper exhaustion demands compliance with an agency’s deadlines\\nand other critical procedural rules.” Woodford, 548 U.S. at 90. The petitioner\\nmust have “pursue[d] the grievance remedy to conclusion”—substantial\\ncompliance with administrative procedures is not enough. Wright v.\\nHollingsworth, 260 F.3d 357, 358 (5th Cir. 2001).\\n Louisiana’s Administrative Remedy Procedure has two steps, and a\\nprisoner has not exhausted his remedies until he has completed both. See\\nDillon v. Rogers, 596 F.3d 260, 265–66 (5th Cir. 2010). A prisoner first submits\\n\\n\\n 1 Though ARP 819 also describes the attack and implicates White, it was filed too late\\nfor Bargher to receive relief, which would weaken any motive to interfere with its filing. See\\nLa. Admin. Code tit. 22, pt. I, § 325(J)(1) (a grievance at this step shall be filed “within 90\\ndays of an alleged event.”).\\n\\n 11\\n\\f Case: 17-30455 Document: 00515020275 Page: 12 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-30455\\na request to the warden briefly setting out the basis for the claim and the relief\\nsought—these are the “ARPs” discussed at length above. Id. at 265. The\\nwarden then has 40 days to respond. Id. at 265–66. If the inmate is\\ndissatisfied with the warden’s response, or no response is received within the\\n40-day time period, the inmate may proceed to the second step and appeal to\\nthe Secretary of the Louisiana Department of Public Safety and Corrections.\\nId. at 266. Critically, a prisoner who does not receive a timely response to his\\ninitial ARP is not prevented from filing a second-step ARP. See id.; LA. ADMIN.\\nCODE tit. 22, pt. I, § 325(J)(1)(c) (“expiration of response time limits shall\\nentitle the offender to move on to the next step in the process.”).\\n Bargher acknowledges that he never proceeded to the second step of the\\ngrievance process, but instead incorrectly contends that the second step was\\nnot available until the prison responded to his first-step grievance. However,\\nwhen prison officials failed to timely respond to his first-step grievance,\\nBargher was entitled under § 325(J)(1)(c) to proceed to the second step. See\\nDillon, 596 F.3d at 266. Because Bargher thus filed his §1983 complaint prior\\nto the completion of the administrative grievance process, the district court\\nproperly found that Bargher failed to exhaust the required administrative\\nremedies before bringing this suit while incarcerated.\\n The district court dismissed Bargher’s suit with prejudice. Failure to\\nexhaust, however, warrants dismissal without prejudice, which permits the\\nlitigant to refile if he exhausts or is otherwise no longer barred by the PLRA\\nrequirements. See Wright, 260 F.3d 357; Booth v. Churner, 532 U.S. 731, 735\\n(2001).\\n This distinction between dismissal with or without prejudice is critical\\nin Bargher’s case because he was released from prison during the pendency of\\nthis suit. Bargher’s subsequent release does not relieve him of the requirement\\nto exhaust administrative remedies for this current legal action that he\\n 12\\n\\f Case: 17-30455 Document: 00515020275 Page: 13 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-30455\\ninitiated while in prison. Williams v. Henagan, 595 F.3d 610, 619 (5th Cir.\\n2010) (holding that when plaintiff “was incarcerated when he brought this suit\\n. . . [his] release during the pendency of the suit does not relieve him the\\nobligation to comply with 42 U.S.C. § 1997e[‘s exhaustion requirements]”). By\\nits plain language, however, the PLRA’s restrictions do not apply to actions\\nfiled by former inmates following their release. 42 U.S.C. § 1997e(a) (“No\\naction shall be brought . . . by a prisoner . . . until such administrative remedies\\nas are available are exhausted”); see, e.g., Norton v. City of Marietta, 432 F.3d\\n1145, 1150 (10th Cir. 2005) (“In light of the PLRA’s plain language . . . . a\\nplaintiff who seeks to bring suit about prison life after he has been released\\nand is no longer a prisoner does not have to satisfy the PLRA’s exhaustion\\nrequirements before bringing suit”); Nerness v. Johnson, 401 F.3d 874, 876 (8th\\nCir. 2005) (per curium) (PLRA’s exhaustion requirements do not apply when\\nsomeone files suit after release from confinement); Witzke v. Femal, 376 F.3d\\n744, 750 (7th Cir. 2004) (same); Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999)\\n(same); Duvall v. Dallas Cty., No. CIV.A. 305CV2431B, 2006 WL 3487024, at\\n*2 (N.D. Tex. Dec. 1, 2006) (same); see also Janes v. Hernandez, 215 F.3d 541,\\n542 (5th Cir. 2000) (“Because Janes was not a prisoner when this complaint\\nwas filed, the [attorney’s] fee limits of the [Prison Litigation Reform] Act did\\nnot apply.”).\\n Accordingly, though his present action must be dismissed, Bargher\\nwould not be bound by the PLRA’s exhaustion requirements if he were to\\nimmediately refile. See Cox v. Mayer, 332 F.3d 422, 424–25 (6th Cir. 2003)\\n(holding that dismissal was required when plaintiff filed unexhausted claims\\nwhile a prisoner but that his release during pendency of the suit meant he\\ncould subsequently refile his claims without exhausting: “no longer in prison,\\nplaintiff ha[s] no remedies to exhaust”); see also Ahmed v. Dragovich, 297 F.3d\\n201, 210 (3d Cir. 2002) (“Although Ahmed would have been free of the\\n 13\\n\\f Case: 17-30455 Document: 00515020275 Page: 14 Date Filed: 07/02/2019\\n\\n\\n\\n No. 17-30455\\nstrictures of the PLRA[‘s exhaustion requirements] if he had filed a timely\\ncomplaint after his release from prison, he is bound by the PLRA because his\\nsuit was filed . . . almost three years before he was released.”). Because this is\\ntherefore not an occasion where “modification of the judgment would be futile,”\\nthe district court’s judgment should be amended to dismissal without\\nprejudice. See, e.g., Rankin v. Pearson, 612 F. App'x 204, 206 (5th Cir. 2015)\\n(declining to find that the district court erred in that case by dismissing with\\nprejudice because the plaintiff there was required but would be unable to\\nexhaust his administrative remedies).\\n ***\\n For these reasons, we VACATE the district court’s dismissal with\\nprejudice and REMAND with instructions to dismiss Bargher’s action without\\nprejudice to his ability to timely refile.\\n\\n\\n\\n\\n 14\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2981,"cells":{"id":{"kind":"number","value":4636220,"string":"4,636,220"},"name":{"kind":"string","value":"Bobby R. BROWN, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellee, William E. Scott, Intervenor Plaintiff-Appellee, Tyrone Day; Kenneth Hickman ; R. Wayne Johnson ; Torrance Flemings; Kenneth Pryor; Julian A. Randall; Lonnie Dean Collins; Lamont Edward Wilson, Intervenor Plaintiffs-Appellees, v. Bryan COLLIER, Executive Director of the Texas Department of Criminal Justice, Defendant-Appellant. Bobby R. Brown, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellee, Tyrone Day; Kenneth Hickman ; R. Wayne Johnson ; Torrance Flemings; Kenneth Pryor; Julian A. Randall; Lonnie Dean Collins; Lamont Edward Wilson, Intervenor Plaintiffs-Appellees, v. Bryan Collier, Executive Director of the Texas Department of Criminal Justice, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"Bobby Brown v. Bryan Collier"},"decision_date":{"kind":"string","value":"2019-07-02"},"docket_number":{"kind":"string","value":"14-20249; consolidated with 14-20444"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"King, Dennis, Owen\", \"parties\": \"\", \"opinions\": [{\"author\": \"PRISCILLA R. OWEN, Circuit Judge, joined by KING, Circuit Judge, in Parts\", \"type\": \"010combined\", \"text\": \"Case: 14-20249 Document: 00515020007 Page: 1 Date Filed: 07/02/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n July 2, 2019\\n No. 14-20249\\n Lyle W. Cayce\\n Clerk\\nBOBBY R. BROWN, individually and on behalf of all others similarly\\nsituated,\\n\\n Plaintiff—Appellee,\\n\\nWILLIAM E. SCOTT,\\n\\n Intervenor Plaintiff—Appellee,\\n\\nTYRONE DAY; KENNETH HICKMAN; R. WAYNE JOHNSON; TORRANCE\\nFLEMINGS; KENNETH PRYOR; JULIAN A. RANDALL; LONNIE DEAN\\nCOLLINS; LAMONT EDWARD WILSON,\\n\\n Intervenor Plaintiffs—Appellees,\\nv.\\n\\nBRYAN COLLIER, Executive Director of the Texas Department of Criminal\\nJustice,\\n\\n Defendant—Appellant.\\n\\n**********************************************************\\nconsolidated with 14-20444\\n\\nBOBBY R. BROWN, individually and on behalf of all others similarly\\nsituated,\\n\\n Plaintiff—Appellee,\\n\\nTYRONE DAY; KENNETH HICKMAN; R. WAYNE JOHNSON; TORRANCE\\nFLEMINGS; KENNETH PRYOR; JULIAN A. RANDALL; LONNIE DEAN\\nCOLLINS; LAMONT EDWARD WILSON,\\n\\n Intervenor Plaintiffs—Appellees,\\n\\n Case: 14-20249 Document: 00515020007 Page: 2 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n\\nv.\\n\\nBRYAN COLLIER, Executive Director of the Texas Department of Criminal\\nJustice,\\n\\n Defendant—Appellant.\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore KING, DENNIS, and OWEN, Circuit Judges.\\nPRISCILLA R. OWEN, Circuit Judge, joined by KING, Circuit Judge, in Parts\\nI, II, III, IV, V and VII:\\n\\n Pursuant to a provision of the Prison Litigation Reform Act (PLRA), 1 the\\nTexas Department of Criminal Justice (TDCJ) seeks to terminate a consent\\ndecree entered in 1977, which exempts Muslim inmates from the requirement\\nthat all religious gatherings and activities in Texas state prisons attended by\\nmore than four inmates must be directly supervised by either prison staff or a\\nprison-approved outside volunteer. The district court denied the motion in\\npart, concluding that a portion of the consent decree remains necessary to\\ncorrect current and ongoing violations of the Religious Land Use and\\nInstitutionalized Persons Act (RLUIPA), 2 the Free Exercise Clause of the First\\nAmendment, and the Establishment Clause of the First Amendment. We\\nreverse and terminate the 1977 consent decree.\\n\\n\\n\\n 1 18 U.S.C. § 3626(b).\\n 2 42 U.S.C. § 2000cc, et seq.\\n 2\\n\\n Case: 14-20249 Document: 00515020007 Page: 3 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n I\\n More than forty years ago, Bobby Brown (Brown), a Muslim, initiated a\\nclass action against the executive director of TDCJ that resulted in the 1977\\nconsent decree. That decree required TDCJ to make an exception for Muslim\\ninmates to a policy that otherwise applied to those attending religious\\nactivities. TDCJ’s rules and policies have required religious worship services\\nor study gatherings attended by more than four inmates to be “directly”\\nsupervised by either prison staff, which would include a chaplain employed by\\nTDCJ, or a prison-approved outside volunteer. 3 Direct supervision means that\\neither a TDCJ employee or a qualified volunteer is in the room during the\\nreligious activities at all times and is supervising only those activities, with no\\nresponsibility for supervising other areas of the prison or other inmates until\\nthe activities have concluded. 4 However, when a volunteer is supervising or\\nleading the religious gathering, a TDCJ officer “will be roving the hallways\\nchecking on the offenders, checking on the volunteers.” 5 If an officer is not\\navailable, the service or activity will be cancelled, even if a volunteer is\\nscheduled to be present. 6\\n The 1977 consent decree afforded Muslim inmates the right to\\nparticipate in group religious services and studies that were “indirectly”\\nsupervised if no prison staff member or outside volunteer was available for\\ndirect supervision. 7 Indirect supervision means that a prison staff member is\\nin the vicinity and observes the religious gathering intermittently, through\\nwindows or by the use of audio or video equipment, but does not remain present\\n\\n\\n 3 Brown v. Livingston, 17 F. Supp. 3d 616, 619 (S.D. Tex. 2014).\\n 4 ROA 1432.\\n 5 ROA 2488-89.\\n 6 ROA 2489.\\n 7 See Brown, 17 F. Supp. 3d at 620.\\n\\n 3\\n\\n Case: 14-20249 Document: 00515020007 Page: 4 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nin the room or area where the activity is occurring. 8 The consent decree also\\nprovided that adherents to the Religion of Islam must be allowed “equal time\\nfor worship services and other religious activities each week as is enjoyed by\\nadherents to the Catholic, Jewish and Protestant faiths,” and the decree said\\nthat TDCJ must “specifically, allow adherents to the Religion of Islam at least\\ntwo (2) full hours of time for worship services or other religious activities each\\nweek, rather than the one (1) hour previously permitted.” 9 In the present\\nproceedings, the district court found that from 1977 until January 1, 2013,\\nMuslim, Jewish, Catholic, Protestant, and Native American inmates could\\nengage in an average of six hours of religious activities each week at units in\\nwhich members of each of these faith groups were housed. 10\\n However, members of other faiths were not permitted to gather as\\nfrequently due to the lack of civilian volunteers. William Scott, a Jehovah’s\\nWitness, sued the director of TDCJ in federal district court in 2009, seeking an\\ninjunction ordering prison officials to allow him and other members of the\\nJehovah’s Witness faith to meet without volunteers, just as Muslims were\\npermitted to do as a result of the consent decree. The district court’s 2012\\nopinion and order in the Scott suit reflected that there were 217 offender faith\\npreferences represented in the TDCJ system, and 59 designated faith groups\\nat the Huntsville Unit, where Scott had been confined for a period of time. 11\\nTDCJ asserted that it did not have sufficient staff to provide adequate\\nsupervision of all offender faith groups if they were allowed to meet without\\n\\n\\n\\n\\n 8Id. at 621.\\n 9ROA 40.\\n 10 Brown, 17 F. Supp. 3d at 621.\\n 11 Scott v. Pierce, No. 4:09-CV-3991, 2012 WL 12535442, at *1 (S.D. Tex. May 7, 2012)\\n\\n(unpublished).\\n 4\\n\\n Case: 14-20249 Document: 00515020007 Page: 5 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nvolunteers present. 12 The district court held in Scott that the Establishment\\nClause requires “denominational neutrality,” its “prohibition against\\npreferential treatment of religion is ‘absolute,’” and that Muslim inmates “are\\npreferred to Jehovah’s Witnesses with respect to the volunteer policy.” 13 The\\ncourt concluded “[i]f alternative means exist to treat Muslim and Jehovah’s\\nWitness prisoners without favoritism, then the Establishment Clause\\ndemands them.” 14 The district court concluded that injunctive relief based on\\nthe Establishment Clause violation was warranted but did not enter an\\ninjunction at that time. It instead ordered the Executive Director of TDCJ “to\\npropose a method of compliance” within sixty days. 15 The district court’s\\nopinion in Scott observed that “if Muslims regularly engage in communal\\nworship without an approved religious volunteer present, evidence exists that\\nthe government’s rule against Jehovah’s Witnesses’ meetings is not ‘closely\\nfitted’ to the government’s compelling interest in enforcing the [Brown] consent\\ndecree.” 16\\n In the Scott litigation, Scott had also requested injunctive relief under\\nRLUIPA. The district denied that request, reasoning that “the accommodation\\nof an offender’s religious or spiritual needs does not outweigh a prison’s need\\nto maintain order and safety,” 17 that “due deference” is to be given to prison\\nadministrators regarding “good order, security and discipline, consistent with\\nconsideration of costs and limited resources,” and “that a rational connection\\n\\n\\n\\n\\n 12 Id. at *2.\\n 13 Id. at *3.\\n 14 Id. at *8.\\n 15 Id. at *5.\\n 16 Id. at *4.\\n 17 Id. at *6.\\n\\n 5\\n\\n Case: 14-20249 Document: 00515020007 Page: 6 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nexists between” requiring directly supervised religious gatherings “and the\\ngovernment’s legitimate interest in prison security.” 18\\n TDCJ responded to the district court’s decision in Scott by promulgating\\nAdministrative Directive AD-07.30 (rev. 7) (June 30, 2014), which the parties\\nrefer to as the “Scott Plan.” Under the Scott Plan, all religious gatherings of\\nmore than four inmates require direct supervision, including worship and\\nstudies by more than four Muslim inmates. 19 The Scott Plan conflicts with the\\n1977 consent decree that permitted Muslim inmates to congregate with only\\nindirect supervision. Under the Scott Plan, each religious group is permitted\\nto have a group worship service for one hour per week that is directly\\nsupervised by prison staff. Additional group religious activities are permitted\\nif supervised by an outside, authorized volunteer. 20\\n In the present case, and as a result of the district court’s conclusion in\\nthe Scott case that TDCJ had violated the Establishment clause by preferring\\nadherents to the Religion of Islam over the Jehovah’s Witness faith group,\\nTDCJ moved to terminate the 1977 Brown consent decree pursuant to the\\nPLRA. 21 The PLRA provides that “in any civil action with respect to prison\\nconditions in which prospective relief is ordered, such relief shall be terminable\\nupon the motion of any party or intervenor,” if the order has been in effect for\\na certain period of time, unless “the court makes written findings based on the\\nrecord that prospective relief remains necessary to correct a current and\\nongoing violation of the Federal right, extends no further than necessary to\\n\\n\\n\\n\\n 18 Id. at *6.\\n 19 Brown v. Livingston, 17 F. Supp. 3d 616, 619 (S.D. Tex. 2014).\\n 20 Id. at 623; see ROA 3080, 3284-85, 4105.\\n 21 ROA 72-82.\\n\\n 6\\n\\n Case: 14-20249 Document: 00515020007 Page: 7 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\ncorrect the violation of the Federal right, and that the prospective relief is\\nnarrowly drawn and the least intrusive means to correct the violation.” 22\\n Pursuant to provisions of the PLRA, TDCJ’s motion operated as an\\nautomatic stay of the 1977 Brown consent decree, 23 allowing TDCJ to\\nimplement the Scott Plan pending further proceedings in the district court.\\nAccordingly, the direct supervision requirement for all religious groups in\\nTDCJ prisons, including members of the Religion of Islam, went into effect in\\n2013. 24\\n After the implementation of the Scott Plan, Muslim inmates may attend\\na weekly, one-hour Jumu’ah service directly supervised by TDCJ chaplains or\\nemployees, but opportunities for Muslim prisoners to participate in other\\ncommunal worship or studies diminished due to a dearth of Muslim volunteers\\nfrom outside the prison system. 25 Protestant and Catholic prisoners, by\\ncontrast, maintained the ability to engage in group worship or study in\\naddition to the one-hour, weekly service directly supervised by TDCJ-\\nemployees because of a relative abundance of outside volunteers. 26\\n The district court held an evidentiary hearing on TDCJ’s motion to\\ndissolve the 1977 decree. That decree had twenty-two specific provisions,\\ntwenty of which the district court terminated without objection by any party.\\nBut the district concluded that two provisions were necessary to correct current\\nand ongoing violations of the federal Constitution and to give effect to statutory\\nrights of Muslim inmates, effectively rejecting the Scott Plan as it applies to\\n\\n\\n\\n\\n 22 18 U.S.C. § 3626(b)(2)-(3).\\n 23 Id. § 3626(e).\\n 24 ROA 3077.\\n 25 ROA 1951, 1953.\\n 26 ROA 1953.\\n\\n 7\\n\\n Case: 14-20249 Document: 00515020007 Page: 8 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nMuslim inmates. 27 One of the two provisions of the 1977 consent decree that\\nthe district court refused to dissolve, found in section III(15) of the decree,\\nrequired TDCJ officials to “[a]llow adherents to the Religion of Islam at each\\nunit of the Texas Department of Corrections equal time for worship services\\nand other religious activities each week as is enjoyed by adherents to the\\nCatholic, Protestant and Jewish faiths.” 28 The other provision that the district\\ncourt ordered be left intact is found in section III(8) of the consent decree, which\\nrequired TDCJ officials to permit inmates professing adherence to the Religion\\nof Islam to congregate for worship, study, and other religious functions and\\nactivities under the supervision of an inmate leader whenever an ordained\\nIslamic minister is unavailable at a regularly scheduled time for worship and\\nstudy. 29\\n The district court focused on three required practices of the Islamic\\nfaith—Jumu’ah, Taleem, and Qur’anic studies—that necessitate group\\ngathering. 30 The district court concluded that the one hour of direct\\nsupervision per week allotted to the roughly 6,775 Muslim inmates in Texas\\nstate prisons by TDCJ staff under the Scott Plan is not enough time to meet\\nthe requirements of Jumu’ah, Taleem, and Qur’anic studies, 31 and that the\\nnumber of Muslim chaplains employed by the TDCJ, and of available Muslim\\nvolunteers, is insufficient to provide adequate group study and worship. 32 The\\ndistrict court found that by contrast, Christian inmates are able to attend an\\naverage of six hours of religious gatherings per week, due to the large number\\n\\n\\n\\n 27 See ROA 1979-80.\\n 28 ROA 40\\n 29 ROA 36-37.\\n 30 ROA 1956-58.\\n 31 ROA 1951, 1958.\\n 32 ROA 1951, 1958.\\n\\n 8\\n\\n Case: 14-20249 Document: 00515020007 Page: 9 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nof Christian volunteers available to supervise such assemblages directly. 33 The\\ncourt concluded that “Jewish inmates are specifically assigned to units” that\\nare in closer proximity to prospective volunteers, and Native American\\ninmates are assigned to a specifically designated unit to facilitate access to one\\nanother and to enhance Native American religious activities. 34 The TDCJ has\\nnot assigned Muslim prisoners to specifically designated units. 35\\n The district court held that the Scott Plan and its direct supervision\\nrequirement result in violations of three different federal rights. Specifically,\\nthe district court held that the Scott Plan (1) unjustifiably imposes a\\nsubstantial burden on Muslim inmates’ religious exercise, thereby violating\\nRLUIPA; 36 (2) restricts Islamic religious exercise in violation of the Free\\nExercise Clause of the First Amendment; 37 and (3) disfavors Islam and favors\\nother faiths, violating the Establishment Clause of the First Amendment. 38\\nSubsequently, the district court awarded attorneys’ fees in favor of Brown and\\na group of Muslim inmates who intervened in the case (the Inmate Intervenors)\\nas prevailing parties. 39\\n The TDCJ appeals both the district court’s denial of its motion to\\nterminate the consent decree and the award of attorneys’ fees. A motions panel\\nof this court ordered that the district court’s judgment on the merits be stayed\\npending appeal. 40\\n\\n\\n 33 ROA 1953.\\n 34 ROA 1964-65.\\n 35 ROA 1965.\\n 36 ROA 1975-77.\\n 37 ROA 1970-75.\\n 38 ROA 1966-70.\\n 39 ROA 2021.\\n 40 Brown v. Livingston, No. 14-20249, Doc. No. 32 (5th Cir. May 20, 2014); see also\\n\\nBrown v. Livingston, No. 14-20249, Doc. No. 61 (5th Cir. June 5, 2014) (denying\\nreconsideration).\\n 9\\n\\n Case: 14-20249 Document: 00515020007 Page: 10 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n II\\n We have held that “[t]he application of the relevant sections of the PLRA\\nrequires the district court to make a finding of an ongoing constitutional\\nviolation, which is a mixed question of law and fact,” 41 and that “[w]e review\\nmixed questions of law and fact de novo.” 42 with the definite and firm\\nconviction that a mistake has been committed.’” 43\\n III\\n “The PLRA strongly disfavors continuing relief through the federal\\ncourts; indeed, its fundamental purpose was to extricate them from managing\\nstate prisons.” 44 As noted above, prospective relief like the consent decree at\\nissue in this case must be terminated on the motion of any party unless such\\nrelief “remains necessary to correct a current and ongoing violation of the\\nFederal right, extends no further than necessary to correct the violation of the\\nFederal right, and . . . is narrowly drawn and the least intrusive means to\\ncorrect the violation.” 45 The 1977 consent decree applies to the entire TDCJ\\nprison system and “terminates unless the district court makes [the requisite]\\n\\n\\n\\n\\n 41 Castillo v. Cameron Cty., 238 F.3d 339, 347 (5th Cir.2001) (citing Inmates of Suffolk\\nCty. Jail v. Rouse, 129 F.3d 649, 661 (1st Cir. 1997)); see also Ruiz v. United States, 243 F.3d\\n941, 950 (5th Cir. 2001).\\n 42 Castillo, 238 F.3d at 347 (citing Cargill, Inc. v. United States, 173 F.3d 323, 333 n.13\\n\\n(5th Cir. 1999)).\\n 43 Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (quoting United States\\n\\nv. United States Gypsum Co., 333 U.S. 364, 395 (1948)) (alteration in original); id. at 573-74\\n(“If the district court's account of the evidence is plausible in light of the record viewed in its\\nentirety, the court of appeals may not reverse it even though convinced that had it been\\nsitting as the trier of fact, it would have weighed the evidence differently. Where there are\\ntwo permissible views of the evidence, the factfinder's choice between them cannot be clearly\\nerroneous.”).\\n 44 Guajardo v. Tex. Dep’t of Criminal Justice, 363 F.3d 392, 394 (5th Cir. 2004) (per\\n\\ncuriam) (citation and internal quotation marks omitted).\\n 45 18 U.S.C. § 3626(b)(2)-(3).\\n\\n 10\\n\\n Case: 14-20249 Document: 00515020007 Page: 11 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nfindings” and “also finds ongoing, system-wide violations.” 46 We have held that\\n“the burden of proof to support these findings is obviously on the party\\nopposing termination.” 47\\n The district court found violations of RLUIPA, the Free Exercise Clause,\\nand the Establishment Clause. It is important to bear in mind in our analysis\\nthat our focus ultimately remains on the PLRA. No inmate has brought a free-\\nstanding claim that he is entitled to injunctive relief under RLUIPA or the\\nConstitution.\\n The relief granted by the district court was not limited to continuing the\\n1977 Consent Decree in effect. The PLRA does not authorize the district court\\nto expand the consent decree. The district court erred in doing so. The\\nremaining inquiry under the PLRA is whether there is an ongoing violation of\\na federal right.\\n IV\\n We first consider RLUIPA. It states, in relevant part:\\n No government shall impose a substantial burden on the\\n religious exercise of a person residing in or confined to an\\n institution, as defined in section 1997 of this title, even if the\\n burden results from a rule of general applicability, unless the\\n government demonstrates that imposition of the burden on that\\n person—\\n (1) is in furtherance of a compelling governmental interest;\\n and\\n (2) is the least restrictive means of furthering that\\n compelling governmental interest. 48\\n\\n\\n\\n\\n 46 Guajardo, 363 F.3d at 395.\\n 47 Id. at 396.\\n 48 42 U.S.C. § 2000cc-1(a).\\n\\n 11\\n\\n Case: 14-20249 Document: 00515020007 Page: 12 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nRLUIPA prevents government practices that substantially burden the\\nreligious exercise of an inmate unless the practice furthers a compelling\\ngovernmental interest and is the least restrictive means of doing so.\\n Initially, “it falls to the plaintiff to demonstrate that the government\\npractice complained of imposes a ‘substantial burden’ on his religious\\nexercise.” 49 To demonstrate a substantial burden, “the plaintiff must show\\nthat the challenged action ‘truly pressures the adherent to significantly modify\\nhis religious behavior and significantly violate his religious beliefs.’” 50 If the\\ninmate makes this showing, the burden shifts to the government “to show that\\nits action or policy is the least restrictive means of furthering a compelling\\ninterest.” 51 In making this assessment, we must give “due deference to the\\nexperience and expertise of prison and jail administrators in establishing\\nnecessary regulations and procedures to maintain good order, security and\\ndiscipline, consistent with consideration of costs and limited resources.” 52\\nHowever, the Supreme Court has made clear that even when prison\\nregulations are at issue, “RLUIPA requires [courts] to ‘scrutiniz[e] the asserted\\nharm of granting specific exemptions to particular religious claimants’ and ‘to\\nlook to the marginal interest in enforcing’ the challenged government action in\\nthat particular context.” 53\\n The district court held that (1) Muslim prisoners’ religious exercise is\\n“substantially burdened” by the Scott Plan’s direct supervision requirement\\n\\n\\n\\n\\n 49 Adkins v. Kaspar, 393 F.3d 559, 567 (5th Cir. 2004) (citing 42 U.S.C. § 2000cc-2).\\n 50 Garner v. Kennedy, 713 F.3d 237, 241 (5th Cir. 2013) (quoting Adkins, 393 F.3d at\\n570).\\n 51 Chance v. Tex. Dep't of Criminal Justice, 730 F.3d 404, 410 (5th Cir. 2013).\\n 52 Id. (quoting Cutter v. Wilkinson, 544 U.S. 709, 723 (2005)).\\n 53 Holt v. Hobbs, 135 S.Ct. 853, 863 (2015) (quoting Burwell v. Hobby Lobby Stores,\\n\\nInc., 573 U.S. 682, 726-27 (2014)).\\n 12\\n\\n Case: 14-20249 Document: 00515020007 Page: 13 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nbecause it causes them to forgo group religious practices that they sincerely\\nbelieve are required by their faith, 54 (2) the State has failed to prove that the\\npolicy’s application to Muslim prisoners actually advances prison security or\\nany other “compelling governmental interest,” 55 and (3) even if direct\\nsupervision does advance a compelling interest, it is not the least restrictive\\nmeans of doing so. 56 Brown, the Inmate Intervenors, and several amici\\ncontend on appeal that the Scott Plan’s direct supervision requirement imposes\\na substantial burden because it limits Muslim inmates to one hour of group\\nreligious services per week, which, they assert, is insufficient time to complete\\nweekly Jumu’ah, Taleem, and Qur’anic studies as required by their religious\\nbeliefs. They also assert that permitting indirect supervision of these services\\ndoes not raise security issues and that TDCJ could provide direct supervision\\nat little additional cost.\\n TDCJ contends that it is not the direct supervision policy that limits\\nopportunities for Muslim inmates to participate in Taleem and Qur’an Studies\\nbut instead, it is a lack of volunteers to supplement the teaching and worship\\nopportunities supervised by TDCJ Muslim chaplains and TDCJ staff.\\nPrecedent from this court supports such a conclusion. TDCJ’s policy allows\\nMuslim volunteers to conduct services and studies for and with inmates. But,\\nas the district court expressly found, “despite specific and concerted efforts over\\nthe past years to recruit volunteers to participate in Muslim religious activities\\nat the prison, TDCJ has been unsuccessful in securing a significant number of\\nMuslim religious volunteers.” 57\\n\\n\\n\\n 54 ROA 1975-76.\\n 55 ROA 1976-77.\\n 56 ROA 1977.\\n 57 ROA 1953.\\n\\n 13\\n\\n Case: 14-20249 Document: 00515020007 Page: 14 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n This court has considered several challenges under RLUIPA to TDCJ’s\\npolicy that religious worship and study when more than four inmates are\\ninvolved must be directly supervised by a TDCJ employee or a TDCJ-approved\\nvolunteer. 58 In Adkins v. Kaspar, the plaintiff was a member of the Yahweh\\nEvangelical Assembly (YEA). 59 Like the Muslim inmates in the present case,\\nhe complained that the direct supervision requirement, together with a\\nshortage of outside YEA volunteers, deprived him of adequate opportunities\\nfor group religious practice. 60 This court held that the lack of opportunity for\\ngroup religious practice resulted “not from some rule or regulation that directly\\nprohibits such gatherings” but instead “from a dearth of qualified outside\\nvolunteers available to go to [the prison].” 61 We concluded in Adkins that the\\nTDCJ’s policies had not imposed a substantial burden on the plaintiff. 62\\n Subsequently, in Baranowski v. Hart, an inmate had protested the\\nrecurring failure of one of the TDCJ’s prisons to allow for group religious\\nservices on Jewish holy days. 63 This court took note of the fact that on each of\\nthe days on which religious services were not held, “no rabbi or approved\\nreligious volunteer was available to lead the services.” 64 As in Adkins, the\\ncourt held that the lack of volunteers, and not the direct supervision\\nrequirement, caused the religious gatherings to be infrequent, such that “the\\nacts of Defendants regarding religious services have not placed a substantial\\n\\n\\n\\n 58 See, e.g., Mayfield v. Tex. Dep’t Crim. Justice, 529 F.3d 599 (5th Cir. 2008);\\nBaranowski v. Hart, 486 F.3d 112 (5th Cir. 2007); Adkins v. Kaspar, 393 F.3d 559, 571 (5th\\nCir. 2004).\\n 59 393 F.3d at 562.\\n 60 Id. at 562, 571.\\n 61 Id. at 571.\\n 62 Id.\\n 63 486 F.3d at 124-25.\\n 64 Id. at 124.\\n\\n 14\\n\\n Case: 14-20249 Document: 00515020007 Page: 15 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nburden on Baranowski’s free exercise of his Jewish faith, within the\\ncontemplation of RLUIPA.” 65\\n These decisions did not adopt a per se rule. We said in Adkins that\\n“whether the government action or regulation in question imposes a\\nsubstantial burden on an adherent's religious exercise” “requires a case-by-\\ncase, fact-specific inquiry.” 66 In Mayfield v. Texas Department of Criminal\\nJustice, 67 an Odinist submitted affidavits averring that group worship\\nmeetings known as Blotar should be conducted on a monthly basis at a\\nminimum. 68 There was evidence that outside volunteers came only once every\\n18 months to conduct Blotar, and Odinists inmates were “unable to conduct\\nBlotar on a regular basis because the TDCJ requires that they have a security-\\ntrained, religious volunteer present for their group meeting.” 69 But there was\\nalso evidence in Mayfield that the volunteer policy was not imposed uniformly\\nbecause an exception was made for Muslim inmates in order to comply with\\nthe consent decree that is at issue in the case now before us. 70 Pertinent to our\\nanalysis in the present case, we said in Mayfield that “[b]ecause the volunteer\\npolicy was implemented uniformly in the Adkins case, it was not the policy\\nimposing the burden on Adkins’ religious practice, but instead the lack of\\nqualified volunteers.” 71\\n\\n\\n\\n\\n 65 Id. at 125 (citing Adkins, 393 F.3d at 571); see also Odneal v. Pierce, 324 F. App’x\\n297, 302 (5th Cir. 2009) (unpublished) (affirming grant of summary judgment because “the\\ninfrequency of Native American services at the McConnell Unit is due to a dearth of outside\\nvolunteers rather than any regulation directly prohibiting these ceremonies”).\\n 66 393 F.3d at 571.\\n 67 529 F.3d 599 (5th Cir. 2008).\\n 68 Id. at 602.\\n 69 Id.\\n 70 Id. at 608.\\n 71 Id. at 614.\\n\\n 15\\n\\n Case: 14-20249 Document: 00515020007 Page: 16 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n The present case differs materially from Mayfield because in the case\\nbefore us, there is no evidence that “calls into question the uniformity of the\\npolicy’s application.” 72 The direct supervision requirement under the Scott\\nPlan has been imposed uniformly, as it was in Adkins. Accordingly, applying\\nour precedent as we are bound to do, it is not the Scott Plan that has imposed\\na burden on Muslim inmates’ religious exercise. It is the lack of volunteers\\nwho adhere to the faith of Islam.\\n V\\n The district court also held that the Consent Decree remains necessary\\nto remedy ongoing violations of the Free Exercise Clause. 73 The district court\\nrecognized that “the Fifth Circuit Court of Appeals has upheld TDCJ’s\\nvolunteer policy,” citing Baranowski, Adkins, and an unpublished opinion, 74\\nbut concluded that we had done so “on a record very different from the ones in\\nthe present case.” 75 We disagree with the district court’s conclusions in that\\nregard.\\n The district court did not discuss or cite the Supreme Court’s decision in\\nO’Lone v. Estate of Shabazz, 76 in which Muslim inmates brought challenges\\nbased on the Free Exercise clause to “policies adopted by prison officials which\\nresulted in their inability to attend Jumu’ah, a weekly Muslim congregational\\nservice regularly held in the main building” of the prison on Fridays. 77 The\\nprison officials in O’Lone refused to exempt Muslim inmates from working\\n\\n\\n\\n\\n 72 Id.\\n 73 Brown v. Livingston, 17 F. Supp. 3d 616, 632-33 (S.D. Tex. 2014).\\n 74 Id. (citing Baranowski v. Hart, 486 F.3d 112 (5th Cir. 2007); Adkins v. Kaspar, 393\\n\\nF.3d 559 (5th Cir. 2004); and Odneal v. Pierce, 324 Fed. App’x 297 (5th Cir. 2009)).\\n 75 Id.\\n 76 482 U.S. 342 (1987).\\n 77 Id. at 345.\\n\\n 16\\n\\n Case: 14-20249 Document: 00515020007 Page: 17 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\noutside the main building on Friday afternoons, and therefore, they were\\nunable to attend Jumu’ah. The Supreme Court held that this “did not violate\\nrespondents’ rights under the Free Exercise Clause of the First Amendment.” 78\\nThe Supreme Court applied the standard of review set forth in Turner v.\\nSafley, 79 ultimately concluding that “[w]e take this opportunity to reaffirm our\\nrefusal, even where claims are made under the First Amendment, to\\n‘substitute our judgment on . . . difficult and sensitive matters of institutional\\nadministration . . . for the determinations of those charged with the formidable\\ntask of running a prison.” 80\\n Under Turner, we consider:\\n (1) whether a “valid, rational connection exists between the prison\\n regulation and the legitimate governmental interest put forward\\n to justify it,” (2) whether there exist “alternative means of\\n exercising the fundamental right that remain open to prison\\n inmates,” (3) what “impact accommodation of the asserted\\n constitutional right will have on guards and other inmates, and on\\n the allocation of prison resources generally,” and (4) whether there\\n is an “absence of ready alternatives” to the regulation in\\n question. 81\\nApplying these factors to the case presently before us, we cannot agree with\\nthe district court that the TDCJ’s direct supervision requirement fails Turner’s\\nrationality review and violates the Free Exercise clause.\\n A\\n The Supreme Court explained in Turner that in analyzing whether there\\nis a “‘valid, rational connection’ between the prison regulation and the\\n\\n\\n\\n 78 Id.\\n 79 482 U.S. 78 (1987).\\n 80 O’Lone, 482 U.S. at 353.\\n 81 Adkins v. Kaspar, 393 F.3d 559, 564 (5th Cir. 2004) (alteration omitted) (quoting\\n\\nTurner, 482 U.S. at 89-90).\\n 17\\n\\n Case: 14-20249 Document: 00515020007 Page: 18 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nlegitimate governmental interest put forward to justify it, . . . the\\ngovernmental objective must be a legitimate and neutral one.” 82 The Court\\ncontinued, “[w]e have found it important to inquire whether prison regulations\\nrestricting inmates' First Amendment rights operated in a neutral fashion,\\nwithout regard to the content of the expression.” 83 The Scott Plan is uniform.\\nIt applies to all religions, without regard to the what beliefs or principles are\\nheld or espoused. 84\\n The TDCJ contends that the legitimate government interest at stake in\\nimposing the direct supervision requirement is ensuring prison security,\\nespecially in light of the TDCJ’s limited resources. It asserts that direct\\nsupervision, including that undertaken by volunteers, deters wrongful\\nbehavior, and that the direct supervision provided by volunteers differs from\\nthat provided by inmates. Volunteers are more likely to report violations than\\ninmates. These common-sense justifications are sufficient to establish a\\nrational connection between direct supervision and prison security. 85 “[I]t\\ncannot seriously be maintained that ‘the logical connection between the\\nregulation and the asserted goal is so remote as to render the policy arbitrary\\nor irrational.’” 86\\n These justifications are also amply supported by the record,\\nnotwithstanding the district court’s conclusion that direct supervision of\\n\\n\\n\\n 82 Turner, 482 U.S. at 89-90.\\n 83 Id. at 90.\\n 84 See Mayfield v. Tex. Dep’t of Criminal Justice, 529 F.3d 599, 608 (5th Cir. 2008) (“In\\n\\nprior cases where we have affirmed summary judgment on similar § 1983 claims, we have\\nrelied on the neutrality of the prison’s policy in doing so.”).\\n 85 Cf. Jones v. Brown, 461 F.3d 353, 361 (3d Cir. 2006) (“[W]here the connection is\\n\\nobvious, common sense may suffice[.]”).\\n 86 O’Lone v. Estate of Shabazz, 482 U.S. 342, 351 (1987) (quoting Turner v. Safley, 482\\n\\nU.S. 78, 89-90 (1987)).\\n 18\\n\\n Case: 14-20249 Document: 00515020007 Page: 19 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nMuslim services is not necessary to promote safety. The district court’s focus\\nsolely on Muslim services was in error. The question is whether the TDCJ’s\\npolicy, which applies to all inmates, not just Muslim inmates, is rationally\\nconnected to prison security and safety. There is unrefuted evidence that\\nsecurity issues arise during directly supervised worship. It stands to reason\\nthat opportunities for disruption or violence would increase if worship services\\nwere only indirectly supervised. Though the district court refused to permit\\nTDCJ to offer evidence that fights or assaults at services other than Muslim\\nservices had occurred, 87 the record nevertheless establishes that direct\\nsupervision of inmate religious gatherings of more than four individuals\\nfurthers legitimate government interests. The district court’s findings and\\nconclusions to the contrary are not supported by the record or common sense.\\n It is undisputed that when the consent decree regarding Muslim inmates\\nwas in effect, “[a]ll the other faith groups were [directly] supervised,” which\\nmeant a chaplain, volunteer or a correctional officer was in the room with the\\ninmates, “not just someone roving, walking by, checking on them frequently.” 88\\nWhen the consent decree was in effect, TDCJ required direct supervision of the\\nmore than 132,000 non-Muslim inmates. Presently, under the Scott Plan,\\nTDCJ requires direct supervision of all inmates when worshiping because\\notherwise, as a TDCJ employee testified, “we’d have large amounts of offenders\\nmeeting without direct supervision, and anything can happen in a prison,”\\nsuch as “escape attempts,” “staff assaults,” and “inmate assaults.” 89 The\\nevidence is undisputed that offenders with histories of serious criminal conduct\\nattend worship services. “Some of these offenders are G4 offenders that have\\n\\n\\n 87 ROA 2699.\\n 88 ROA 4079-80.\\n 89 ROA 4081.\\n\\n 19\\n\\n Case: 14-20249 Document: 00515020007 Page: 20 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nescape histories, they have assault histories, they’re confirmed gang members\\neven though they’re out in the offender population, they have a history of staff\\nassaults, inmate assaults. You’ve got all these offenders coming into one area\\nof the facility to congregate, and anytime you have a large group of offenders\\nand even sometimes a small group of offenders, that’s areas that we need to\\ndirectly supervise for public safety, for the safety of staff and the safety of the\\ninmate population.” 90\\n There was testimony that having personnel “in there to respond to that\\nwhen something’s happening during a service,” 91 rather than camera\\nsurveillance, is necessary because a person in the room is “getting the tone of\\nthe service or the cell block and watching the offenders, if they’re grouping up\\nor, you know, just how the offenders are acting that particular day,” and\\n“[y]ou’re not going to get that through a video surveillance system.” 92\\n An expert witness who was formerly a warden in Florida testified that\\naltercations occurred during religious services in the units he supervised, some\\nof which involved “a serious incident of bodily harm.” 93 This witness also\\ntestified that if inmates are leading a service, security is needed, and having a\\nperson in the room observing them is the “best form” of security. 94 He also\\nconfirmed that “some offenders have custody levels that make them\\ndangerous”; when they are present in religious services, it is important to have\\nsecurity; and that the “best way” of supervision in those cases is direct\\nsupervision. 95 But more broadly, he testified that in light of his experience, a\\n\\n\\n\\n 90 ROA 4078.\\n 91 ROA 4081.\\n 92 ROA 4042.\\n 93 ROA 2821.\\n 94 ROA 2894.\\n 95 ROA 2894-95.\\n\\n 20\\n\\n Case: 14-20249 Document: 00515020007 Page: 21 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nsecurity presence in the form of a volunteer or a chaplain observing and\\ndirectly supervising the inmates in the service “needs to be there in a religious\\nservice to prevent inmates from conducting any disruptive or criminal activity\\nin a service.” 96\\n A TDCJ Muslim inmate who testified at the hearing confirmed that he\\nhas seen “fights break out” at “church services” other than Muslim services,\\nand that the prison in which he was incarcerated was “locked down” as a result\\nof “fights [that] have taken place in church services.” 97\\n There was also unrefuted testimony from TDCJ that “we have a Prison\\nRape Elimination Act that we have to come into compliance with. There are\\nalmost 50 standards that we’re trying to come into compliance with, and the\\nonly way we can come in compliance with that is to make sure that we have\\nappropriate supervision of our offender population.” 98 Relatedly, the National\\nPrison Rape Elimination Commission Report 6 (June 2009) recommends direct\\nsupervision of inmates should be used “wherever possible” “because it is the\\nmost effective mode of supervision for preventing sexual abuse and other types\\nof violence and disorder.” 99 That Commission made the following finding and\\nrecommendation:\\n Supervision is the core practice of any correctional agency,\\n and it must be carried out in ways that protect individuals from\\n sexual abuse. The Commission believes it is possible to meet this\\n standard in any facility, regardless of design, through appropriate\\n deployment of staff. Direct supervision, which features interaction\\n between staff and prisoners, should be used wherever possible\\n\\n\\n\\n 96 ROA 2903.\\n 97 ROA 2697-98.\\n 98 ROA 4078.\\n 99 Nat’l Prison Rape Elimination Commission Report, 6 (2009), available at\\n\\nhttps://www.ncjrs.gov/pdffiles1/226680.pdf.\\n 21\\n\\n Case: 14-20249 Document: 00515020007 Page: 22 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n because it is the most effective mode of supervision for preventing\\n sexual abuse and other types of violence and disorder. 100\\n The district court’s own findings reflect that if TDCJ were to permit\\nadherents of each faith to gather in groups of more than four with only indirect\\nsupervision, security risks would exist. The district court recognized “there is\\nevidence that the more serious incidents that occurred at or near religious\\nactivities occurred during Catholic and Protestant services even though a\\nChaplain, prison guard, or outside volunteer was present.” 101 Yet, the district\\ncourt concluded that this was not evidence of a need for direct supervision of\\ninmates during religious activities.\\n The district court’s conclusion in this regard appears to be based upon a\\n“Finding of Fact” that the “practice of permitting inmate-led services, as\\ndescribed in the Consent Decree, was the ‘usual’ practice in prison systems.” 102\\nThe district court cited the testimony of three witnesses in support of this\\nconclusion, but read in context, each witness said that in the wake of the\\nConsent Decree in the present case, prisons in some other jurisdictions had\\nadopted the provisions of the Consent Decree for Muslim inmates, not for\\ninmates of other faiths.\\n The district court’s opinion states:\\n McAndrew testified that prisons use methods other than direct\\n supervision to ensure security at religious meetings, such as roving\\n patrols and visual observations through windows. He also testified\\n that, in his experience, the practice of permitting inmate-led\\n services, as described in the Consent Decree, was the “usual”\\n practice in prison systems. 103\\n\\n\\n\\n 100 Id.\\n 101 Brown v. Livingston, 17 F. Supp. 3d 616, 628 (S.D. Tex. 2014).\\n 102 Id.\\n 103 Id.\\n\\n 22\\n\\n Case: 14-20249 Document: 00515020007 Page: 23 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n This is incorrect. McAndrew testified that after the consent decree in\\nthe present case was entered, an unspecified number of prisons used the\\nconsent decree as a model for a policy regarding Muslim inmates and have\\nallowed indirectly supervised, inmate-led religious meetings by Muslim\\ninmates. 104 McAndrew did not testify that indirect supervision is a “usual”\\npractice with regard to any other faith group.\\n The district court also relied upon the testimony of a former Chaplain in\\nNew York, Ibrahim Ezghair. Ezghair recounted that a state prison system less\\nthan half the size of the Texas system had adopted and implemented the terms\\nof the consent decree at issue in the present case and had “experienced no\\nsecurity or safety threats or events involving inmate-led or indirectly\\nsupervised Muslim religious activities.” 105 The district court characterized\\nanother Muslim Chaplain’s testimony, that of Chaplain Shabazz, as saying\\nthat “many prison systems throughout the United States” permit indirect\\nsupervision of inmate-led religious activities by Muslims, and that the witness\\nwas “unaware of any safety concerns.” 106 This evidence is not only conclusory\\nand lacking in specificity, it is myopically focused on Muslim services. It is not\\nevidence that indirect supervision of religious services in prisons as a general\\nproposition presents no safety concerns. None of these witnesses testified that\\nprisons have permitted or reasonably should permit virtually all worship or\\nreligious activities by inmates to occur with only indirect supervision.\\n In a letter to this court, the plaintiffs assert that “the Consent Decree\\nregime is the model followed by penal institutes throughout the nation.” The\\nplaintiffs do not provide any specificity in this regard. They cite to one page in\\n\\n\\n 104 ROA 2792-93.\\n 105 Brown, 17 F. Supp. 3d at 627.\\n 106 Id.\\n\\n 23\\n\\n Case: 14-20249 Document: 00515020007 Page: 24 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nthe district court’s opinion in this case, 107 which in turn relied on conclusory\\ntestimony, just discussed above, from two witnesses regarding indirect\\nsupervision of Muslim religious gatherings adopted by some prison systems in\\nthe wake of the consent decree that is presently at issue. 108 None of that\\ntestimony averred that indirect supervision of religious gatherings for inmates\\nhas been widely accepted or even that indirect supervision of Muslin inmates,\\nadmittedly modeled after the consent decree in the present case, has been\\nwidely accepted.\\n The plaintiffs’ letter to this court also cites an amicus brief by four\\nindividuals who denominate themselves “Former Prison Wardens.” That brief\\nrelates those individuals’ own experiences, which amounts to unsworn\\ntestimony that is not part of the record in this case and is not subject to cross-\\nexamination. In support of the assertion that “monitoring through indirect\\nsupervision is a common method of ensuring security for inmate-led worship,”\\nthe amicus brief cites regulations in four jurisdictions. 109 The existence of such\\npolicies in four states does not establish that the Federal Government, the vast\\nmajority of States, or even a bare majority of the States, have such a policy.\\n We also know from court decisions around the country that at least\\nseventeen other jurisdictions do not permit inmates to gather for religious\\nexercise without direct supervision. 110 “‘While not necessarily controlling, the\\n\\n\\n 107 Brown, 17 F. Supp. 3d at 627.\\n 108 See Brown, 17 F. Supp. 3d at 627.\\n 109 Cal. Code Regs., tit. 15, § 3211(a); 03-201 Me. Code R. Ch. 10, Subs. 24.3, § VI; Kan.\\n\\nAdmin. Regs. 44-7-113; N.Y. Comp. Codes R. & Regs. tit. 9, § 7024.2.\\n 110 See, e.g., Hall v. Sutton, 581 F. App’x 580, 581 (7th Cir. 2014) (Illinois); Turner v.\\n\\nHamblin, 590 F. App’x 616, 619‑20(7th Cir. 2014) (Wisconsin); Bader v. Wrenn, 675 F.3d 95,\\n96 (1st Cir. 2012) (New Hampshire); Hathcock v. Cohen, 287 F. App’x 793, 800‑01 (11th Cir.\\n2008) (per curiam) (Florida); McElhaney v. Elo, 202 F.3d 269, 2000 WL 32036, at *4 (6th Cir.\\nJan. 6, 2000) (Michigan); Manges v. Harman, No. 3:11‑CV‑369 PPS, 2014 WL 5488457, at\\n*10 (N.D. Ind. Oct. 29, 2014); Guess v. McGill, No. 9:13‑cv‑02260‑TLW, 2014 WL 5106735, at\\n 24\\n\\n Case: 14-20249 Document: 00515020007 Page: 25 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\npolicies followed at other well-run institutions would be relevant to a\\ndetermination of the need for a particular type of restriction.’” 111\\n The amicus brief additionally asserts that an expert witness at the\\nhearing, Ron McAndrew, “testified that allowing indirectly supervised, inmate-\\nled services was a ‘usual’ practice in other prison systems.” This is misleading.\\nMcAndrew testified that after the consent decree in the present case was\\nentered, an unspecified number of prisons used the consent decree as a model\\nfor a policy regarding Muslim inmates and have allowed indirectly supervised,\\ninmate-led religious meetings by Muslim inmates. 112 McAndrew did not testify\\nthat this is a “usual” practice with regard to any other faith group.\\n The amicus brief also quotes snippets of testimony from another expert\\nwitness at the hearing, Alexander Taylor, asserting that he “testified that ‘the\\nmost common practice . . . is where the chaplain in the building is able to do\\nthat roving type of observation, sitting in as needed . . . .’” But read in its\\nentirety, that was not the import of Taylor’s testimony. He said a chaplain\\nroving during services “sit[s] in as needed, and sometimes through entire\\nservices.” 113 But more importantly, he testified that though such a roving\\n\\n\\n\\n*10‑11 (D. S.C. Oct. 10, 2014); Leishman v. Patterson, No. 2:11‑CV‑00309 CW, 2014 WL\\n2117543, at *6‑7 (D. Utah May 21, 2014); Vega v. Lantz, No. 3:04CV1215(DFM), 2013 WL\\n6191855, at *5, *8 (D. Conn. Nov. 26, 2013); Ericson v. Magnusson, No. 2:12‑cv‑00178‑JAW,\\n2013 WL 2634761, at *4 (D. Me. June 12, 2013); Howard v. Wiglesworth, No. 5:10cv163‑RHW,\\n2012 WL 3867011, at *5 (S.D. Miss. Sept. 5, 2012); Countryman v. Palmer, No.\\n3:11‑cv‑00852‑ECR‑VPC, 2012 WL 4340659, at *5 (D. Nev. Aug. 7, 2012); De’Lonta v.\\nJohnson, No. 7:11‑cv‑00175, 2012 WL 2921762, at *2 (W.D. Va. Jul. 17, 2012); Montague v.\\nCorr. Corp. of Am., No. 3:10‑cv‑0443, 2011 WL 3476543, at *3 (M.D. Tenn. Aug. 8, 2011);\\nJihad v. Fabian, No. 09‑1604 (SRN/LIB), 2011 WL 1641885, at *19 (D. Minn. Feb. 17, 2011);\\nStrutton v. Meade, No. 4:05CV02022 ERW, 2010 WL 1253715, at *47 (E.D. Mo. Mar. 31,\\n2010); Morrison v. Cook, No. 97‑57‑ST, 1999 WL 717218, at *4‑5 (D. Or. Apr. 27, 1999).\\n 111 Holt v. Hobbs, 135 S.Ct. 853, 866 (2015) (quoting Procunier v. Martinez, 416 U.S.\\n\\n396, 414, n.14 (1974)).\\n 112 ROA 2792-93.\\n 113 ROA 2891.\\n\\n 25\\n\\n Case: 14-20249 Document: 00515020007 Page: 26 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\npractice is employed, “oftentimes” it is “not” the most common practice. 114 He\\nthen explained that “[q]uite frequently” there is “direct supervision, having\\nsomeone physically in the room.” 115 He testified that, in lower security\\ninstitutions, “constant supervision isn’t quite as well practiced.” 116 “[D]irect\\nsupervision, having someone physically in the room, is utilized in religious\\nservices . . . quite frequently.” 117 “[S]pecific circumstances” when direct\\nsupervision is used depends on the custody level of the institution, but even in\\nlower security units, when there are large numbers of inmates, a security\\nofficer would be present:\\n [E]very institution has a profile for the type of custody levels that\\n they embrace. And the higher the custody level, the more difficult\\n the prison population is, the more likely you will have constant\\n supervision.\\n With the less, lower security level institutions, then the\\n constant supervision isn't quite as well practiced. In there, you\\n would have somebody, you know – a chaplain would be there, and\\n the service may take part while the chaplain is moving from room\\n to room. But another reason for the provision of a security officer\\n is simply the numbers. When there are large numbers of inmates,\\n we want to have appropriate supervision. 118\\n Taylor made clear that when he was a chaplain in a Florida prison, there\\nwas indirect supervision in an inmate-led service only “[w]hen there are\\nsmaller services and there is [sic] only a few inmates.” 119 At the time of the\\nhearing, there were 6,775 Muslim inmates 120 in 96 prisons across Texas. 121\\n\\n\\n 114 ROA 2891.\\n 115 ROA 2891.\\n 116 ROA 2892.\\n 117 ROA 2891.\\n 118 ROA 2891-92.\\n 119 ROA 2906.\\n 120 Brown v. Livingston, 17 F. Supp. 3d 616, 622 (S.D. Tex. 2014).\\n 121 Id. at 623.\\n\\n 26\\n\\n Case: 14-20249 Document: 00515020007 Page: 27 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nAveraging the number of inmates across 96 prisons would mean that 70\\nMuslim inmates in each prison would potentially attend services and other\\nreligious activities. We know from some of the findings of the district court\\nthat in at least one prison, in Childress County, there were 53 Muslim\\ninmates. 122 But if only 53 inmates in each prison desired to attend group\\nworship or study, that is a significant number.\\n Taylor also testified that, based on his experience in Texas and Florida,\\nwhen “inmates are leading a service . . . having someone there in person\\nobserving them” would be “the best form” of security. 123 He also confirmed that\\nin services in which “some offenders who have a custody levels that make them\\ndangerous” are present, the “best way” of supervising is “direct supervision.” 124\\nHe summarized and reiterated his opinion that direct supervision “needs to be\\nthere in a religious service to prevent inmates from conducting any disruptive\\nor criminal activity in a service.” 125\\n The district court’s “Findings of Fact” state that “[d]uring the thirty-five\\nyears the Consent Decree was in effect and being adhered to by TDCJ, there\\nhas been no evidence of a single reported or known incident involving a serious\\nsecurity risk to the prison, its staff, inmates or the public at large involving\\ninmate-led Muslim religious activity.” 126 The district court then reasoned that\\n“[i]n other words, adherence to Sections III(8) and III(15) of the Consent\\nDecree,” which exempts only Muslim inmates from direct supervision, “has not\\n\\n\\n\\n\\n 122 Id. at 624.\\n 123 ROA 2894.\\n 124 ROA 2894-2895.\\n 125 ROA 2903.\\n 126 Brown, 17 F. Supp. 3d at 621.\\n\\n 27\\n\\n Case: 14-20249 Document: 00515020007 Page: 28 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\npresented or posed a threat to the security or safety of the institution or the\\npublic.” 127\\n The implicit assumption underlying this ruling, and the plaintiffs’\\narguments, is that Muslim inmates have been relatively peaceful in the past\\nwhen indirectly supervised, and therefore, all present and future Muslim\\ninmates, unlike inmates of other faiths, pose no threat to security, safety or\\norder within the TDCJ system of 111 prisons. Muslim inmates therefore must\\nbe permitted to conduct inmate-led religious gatherings without direct\\nsupervision. This rationale is problematic for at least two reasons: (1) it\\nignores evidence that there is a need for direct supervision of Muslim inmates,\\nand (2) it gives disparate, preferential treatment to Muslim inmates over\\ninmates of other faiths.\\n Courts have recognized that permitting inmates to lead worship services\\nwithout appropriate supervision can create hierarchies that are detrimental to\\na prison’s discipline structure. The Seventh Circuit, for example, has observed\\nthat “allow[ing] inmates to conduct their own religious services [is] a practice\\nthat might not only foment conspiracies but also create (though more likely\\nmerely recognize) a leadership hierarchy among the prisoners.” 128 Relatedly,\\nthe Supreme Court credited testimony in O’Lone v. Estate of Shabazz that\\nallowing “‘affinity groups’ in [a] prison to flourish” leads to “‘a leadership role\\nand an organizational structure that will almost invariably challenge the\\ninstitutional authority’” and that “special arrangements for one group would\\ncreate problems as ‘other inmates [see] that a certain segment is escaping’” a\\nprison requirement applicable to all others. 129 The “affinity group” in O’Lone\\n\\n\\n 127 Id.\\n 128 Johnson-Bey v. Lane, 863 F.2d 1308, 1310 (7th Cir. 1988).\\n 129 482 U.S. 342, 353 (1987).\\n\\n 28\\n\\n Case: 14-20249 Document: 00515020007 Page: 29 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nwas comprised of Muslim inmates seeking exemption from work details on\\nFriday afternoons in order to attend Jumu’ah services. 130\\n In the case before us, there was evidence of hierarchies among Muslim\\ninmates in the TDCJ system. TDCJ Muslims inmates testified “[we would]\\npolice ourselves” 131 when problems arose during inmate-led services that were\\nonly indirectly supervised. Inmate worship leaders would prohibit an inmate\\nwho behaved inappropriately from attending services for a period of time 132\\nand did not report incidents to prison officials because “we take care of\\nourselves.” 133 Accordingly, for those who attended indirectly supervised\\nreligious gatherings, whether a Muslim inmate would be permitted religious\\nexercise was left to the sole discretion of another inmate, and TDCJ officials\\nwere kept unaware of disciplinary issues. It is detrimental to the rights of\\ninmates when they are disciplined by other inmates, and such a system\\nundermines the prison’s disciplinary and oversight functions.\\n The district court did not discuss this evidence. Nor did the district court\\ndiscuss unrefuted evidence that violence occurred during a Muslim worship\\nservice even though that service was directly supervised by a TDCJ employee\\nwho was able to intervene immediately. 134 In another incident, an intense\\nargument among Muslim inmates at a religious gathering resulted in a\\nresponse team from the prison being called due to the potential for violence\\nand harm to those present at the worship service, though no physical injury\\n\\n\\n\\n\\n 130 Id.\\n 131 ROA 2697.\\n 132 ROA 2697.\\n 133 ROA 3818.\\n 134 Def. Ex. 46 (incident occurred on July 31, 2013); see also ROA 3077 (the Scott Plan\\n\\nwent into effect in January 2013).\\n 29\\n\\n Case: 14-20249 Document: 00515020007 Page: 30 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\noccurred before the response team arrived to quell the disorder. 135 There was\\nalso evidence of other disruptions in Muslim religious gatherings that did not\\nresult in physical violence but were disruptions, nevertheless.\\n The district court reasoned that volunteers are not security personnel\\nand “the presence of an outside volunteer [does not] further [TDCJ’s]\\ncompelling state interest in prison security.” 136 The record as a whole does not\\nsupport this conclusion.\\n There was unrefuted testimony that prisons across the country utilize\\nvolunteers to supervise religious exercise by inmates because volunteers do\\nhave a positive impact on maintaining security, safety, and orderliness. 137 An\\nexpert witness testified that, in his opinion, a volunteer or a chaplain “needs\\nto be there in a religious service to prevent inmates from conducting any\\ndisruptive or criminal activity.” 138 This witness also testified that “volunteers\\ndo conduct some of the similar duties like a correctional officer who watches\\noffenders . . . they watch offenders.” 139 Though volunteers do not have to\\npower to discipline or search inmates or physically restrain them, an expert\\nwitness testified that he would be satisfied with volunteer-provided security\\nthrough direct supervision because they can inform staff if something were to\\nhappen within the service “that shouldn’t be happening” and because when a\\n\\n\\n 135 ROA 3816-17; Lemons v. Tex. Dep’t of Criminal Justice, No. 2:09-cv-0102, 2012 WL\\n2133700 at *6 (N.D. Tex. May 17, 2012).\\n 136 Brown v. Livingston, 17 F. Supp. 3d 616, 627 (S.D. Tex. 2014).\\n 137 ROA 4191 (volunteers can directly supervise to gauge whether offenders are\\n\\n“having inappropriate conversations or they’re having a gang meeting or they’re passing\\nnotes, passing contraband, looking for those warning signs”); 4195 (volunteers are trained\\n“about security issues and what to be mindful of and what to look for”); see also Chance v.\\nTex. Dep't of Criminal Justice, 730 F.3d 404, 414-15 & nn.7-8 (5th Cir. 2013) (agreeing that\\nvolunteer supervision serves an important government interest in prison safety and\\nsecurity); McAlister v. Livingston, 348 F. Appx 923, 937 (5th Cir. 2009) (per curiam) (same).\\n 138 ROA 2903.\\n 139 ROA 2923.\\n\\n 30\\n\\n Case: 14-20249 Document: 00515020007 Page: 31 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nvolunteer is present, “the offenders would be more likely to stay with the topic\\nand with what should be said instead of going off on tangents or discussing\\nthings that maybe were not religious in nature.” 140 There was other expert\\ntestimony that a volunteer or chaplain can provide observations during\\nreligious gatherings of inmates as well as a corrections officer can provide\\nobservations. 141\\n TDCJ conducts background checks of volunteers and provides training\\nregarding security issues, what to be mindful of and look for when in an inmate\\npopulation and in services, what to do if a fight or riot erupts. 142 TDCJ\\nvolunteers are trained to report any security breaches to prison officials. 143\\nMuslim inmates attending indirectly supervised religious activities have not\\nalways reported misbehavior or security breaches because of “the offender code\\nand telling on each other and as to labeling each other as a snitch.” 144\\n The district court’s conclusion that “[t]here is no evidence that the\\npresence of a volunteer during a Muslim religious activity at TDCJ increases\\nprison safety or security in any way” 145 failed to consider that the evidence on\\nthis point is limited. The TDCJ inmates who testified regarding Muslim\\nreligious exercise said that, due to the paucity of Muslim volunteers, no\\nvolunteers were in any of the services or religious activities that they\\nattended. 146 The evidence was extremely sparse, if not non-existent, as to the\\nimpact volunteers might have had if they had been available to supervise\\n\\n\\n\\n 140 ROA 3499-500.\\n 141 ROA 4042.\\n 142 ROA 4195.\\n 143 ROA 4036-37.\\n 144 ROA 3716.\\n 145 Brown v. Livingston, 17 F. Supp. 3d 616, 636 (S.D. Tex. 2014).\\n 146 See, e.g., ROA 3262 (“Since my 17 years of being on the Robertson Unit, we have\\n\\nnever had a volunteer that showed up.”); 2627; 2691-92.\\n 31\\n\\n Case: 14-20249 Document: 00515020007 Page: 32 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nMuslim inmates’ religious exercise. As already discussed, because the Muslim\\ninmates “take care of their own,” we do not know what issues arose that could\\nhave been obviated by the presence of volunteers.\\n There is a rational connection between the TDCJ’s indirect supervision\\nrequirement and the governmental interest in providing security in prisons.\\n B\\n As to Turner’s second consideration—Muslim inmates’ “alternative\\nmeans of exercising” their religion beliefs 147—“[t]he pertinent question is not\\nwhether the inmates have been denied specific religious accommodations, but\\nwhether, more broadly, the prison affords the inmates opportunities to exercise\\ntheir faith.” 148 In Adkins we upheld the direct supervision requirement against\\na Free Exercise challenge because the record reflected that “(1) Adkins had\\naccess to religious materials; (2) he and other YEA inmates were not required\\nto work on the Sabbath; (3) video and audio tapes were made available on\\nMondays to all YEA members; and (4) YEA members were permitted to hold\\nand attend live services” when a volunteer was available, approximately\\nmonthly. 149 Here, the record demonstrates, and none of the plaintiffs contest,\\nthat Muslim TDCJ inmates are permitted to attend a weekly Jumu’ah\\nservice, 150 significant accommodations are made for religious festivals such as\\nRamadan, 151 and Muslim inmates are permitted to keep religious objects,\\n\\n\\n\\n 147 Turner v. Safley, 482 U.S. 78, 90 (1987).\\n 148 Adkins v. Kaspar, 393 F.3d 559, 564 (5th Cir. 2004) (alteration in original) (quoting\\nFreeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854, 861 (5th Cir. 2004)); see also O’Lone\\nv. Estate of Shabazz, 482 U.S. 342, 351-52 (1987) (holding, where Muslim inmates “retain[ed]\\nthe ability to participate in other Muslim religious ceremonies,” that inability to attend\\nweekly Jumu’ah service did not violate Free Exercise Clause).\\n 149 Adkins, 393 F.3d at 564.\\n 150 ROA 3284, 3353.\\n 151 ROA 2704-07, 3626-27.\\n\\n 32\\n\\n Case: 14-20249 Document: 00515020007 Page: 33 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nincluding a Qur’an, a prayer rug, and prayer beads, in their cells for personal\\nprayer and study. 152 Muslims inmates may gather in groups of four or fewer\\nto worship and study. All Muslim inmates have access to a diet that conforms\\nto their faith’s restrictions. While Muslim inmates may not be permitted to\\nengage in as many religious gatherings with the numbers of inmates as they\\nwish, we conclude, as in Adkins, that they have alternative means of exercising\\ntheir religious rights.\\n C\\n The third Turner consideration addresses the impact the accommodation\\nsought would have on other inmates and prison staff and on the allocation of\\nprison resources, generally. We conclude, as we did in Adkins, that continuing\\nto allow Muslim inmates the freedom to congregate without direct supervision\\n“could ‘spawn a cottage industry of litigation and could have a negative impact\\non prison staff, inmates and prison resources.’” 153 Furthermore, “if [Muslim\\ninmates] were accommodated and other similarly situated small religious\\ngroups were not, [Islam] could appear to be favored over the others, a\\nperception that could have a negative effect on prison morale and discipline.” 154\\n The evidence was unrefuted that TDCJ is short-staffed in spite of\\nsustained efforts to hire security personnel. 155 The TDCJ offered evidence that\\nthe situation was “critical.” At the time of the hearing, the TDCJ was “3,000\\nofficers short,” and “spending 5 million plus in overtime a month.” 156 In some\\nof the TDCJ’s “units in West and South Texas,” it was “critically short,” and “a\\n\\n\\n\\n\\n 152 ROA 2651, 2695.\\n 153 Adkins, 393 F.3d at 565 (quoting Freeman, 369 F.3d at 862).\\n 154 Id.\\n 155 ROA 4072-73.\\n 156 ROA 4072.\\n\\n 33\\n\\n Case: 14-20249 Document: 00515020007 Page: 34 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nvery serious situation.” 157 “[W]e’re doing all we can, as [others testified], about\\ntrying to recruit new staff,” and “[w]e’re doing all we can to try to retain the\\nstaff that we have on our facilities.” 158 Priority is given to positions such as “a\\ndorm housing rover or a cell block rover, an inside picket officer, . . . central\\ncontrol officer, our outside guard towers, things like that, those things that are\\ncrucial to the safety and security of the institution.” 159 The TDCJ offered\\nevidence that it does not have staff to provide more than one hour of directly\\nsupervised religious activities to all inmates seeking to engage in religious\\nactivities beyond the one-hour weekly services that are directly supervised by\\nTDCJ employees or even solely to Muslim inmates.\\n The district court’s response to this evidence was that the TDCJ should\\ncease training and organizing volunteers for religious gatherings in prisons.\\nBut the costs that would be saved were not quantified, and there was no\\nevidence that requiring TDCJ to cease and desist from permitting volunteers\\nin the prisons would free sufficient time for TDCJ employees to provide an\\nadditional hour of direct supervision of Muslim religious activities each week,\\nmuch less the additional hours that the district court would require. Requiring\\nTDCJ to cease allowing volunteers would also be contrary to the district court’s\\nfinding and unrefuted evidence that volunteers have a substantial, positive\\nimpact on inmates and lessen the potential for violence in the prisons.\\n D\\n The fourth consideration under Turner’s standard of review is whether\\nthere is an absence of ready alternatives to the TDCJ’s direct supervision\\n\\n\\n\\n\\n 157 ROA 4073.\\n 158 ROA 4073.\\n 159 ROA 4073.\\n\\n 34\\n\\n Case: 14-20249 Document: 00515020007 Page: 35 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nrequirement. We have examined alternatives above and do not repeat that\\ndiscussion here.\\n In sum, we conclude that the Scott Plan poses no violation of the Free\\nExercise Clause that would render the consent decree, and its allowance of\\nindirect supervision of Muslim religious gatherings, “necessary to correct a\\ncurrent and ongoing violation of the Federal right.” 160\\n VI\\n The district court concluded that the TDCJ’s regulations and policies\\nfavored Catholic, Jewish, Native American and Protestant inmates over\\nMuslim inmates. 161 Citing the Supreme Court’s decision in Larson v. Valente,\\nwhich involved a state statute imposing registration and reporting\\nrequirements on religious organizations that solicited more than fifty percent\\nof their funds from nonmembers, 162 the district court concluded that “when it\\nis claimed that a prison regulation violates an inmate’s Establishment Clause\\nrights it must be subjected to strict scrutiny analysis and is upheld only if it is\\n‘closely fitted’ to further a ‘compelling government interest.’” 163 The TDCJ\\ncontends that the more deferential standard articulated in Turner v. Safley 164\\napplies. I first consider the appropriate standard for analyzing the inmates’\\nEstablishment Clause claims.\\n A\\n The Supreme Court has not directly addressed the standard of review\\nthat applies when inmates assert a violation of the Establishment Clause, and\\nmore particularly, whether the applicable standard may depend upon the\\n\\n\\n 160 18 U.S.C. § 3626(b)(3).\\n 161 Brown v. Livingston, 17 F. Supp. 3d 616, 630-33 (S.D. Tex. 2014).\\n 162 456 U.S. 228, 230 (1982).\\n 163 Brown, 17 F. Supp. 3d at 632 (quoting Larson, 456 U.S. at 247).\\n 164 482 U.S. 78 (1987).\\n\\n 35\\n\\n Case: 14-20249 Document: 00515020007 Page: 36 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nspecifics of the claim. The Supreme Court has recognized, however, that the\\n“constitutional prohibition of denominational preferences is inextricably\\nconnected with the continuing vitality of the Free Exercise Clause.” 165\\n As discussed in Section V above, O’Lone v. Estate of Shabazz analyzed\\nFree Exercise claims and “consider[ed] once again the standard of review for\\nprison regulations claimed to inhibit the exercise of constitutional rights.” 166\\nIn O’Lone, prison regulations precluded Muslim inmates assigned to outside\\nwork details from attending Jumu’ah. 167 The Third Circuit had held that the\\nprison’s “policies could be sustained only if: ‘the state . . . show[s] that the\\nchallenged regulations were intended to serve, and do serve, the important\\npenological goal of security, and that no reasonable method exists by which\\n[prisoners’] religious rights can be accommodated without creating bona fide\\nsecurity problems.’” 168 The Supreme Court rejected this standard of review.\\n“We think the Court of Appeals[’] decision in this case was wrong when it\\nestablished a separate burden on prison officials to prove ‘that no reasonable\\nmethod exists by which [prisoners’] religious rights can be accommodated\\nwithout creating bona fide security problems.’” 169\\n The Court explained at length in O’Lone why the “reasonableness test”\\nset forth in Turner v. Safley, rather than strict scrutiny, applied. 170 The O’Lone\\ndecision then admonished, “[t]o ensure that courts afford appropriate\\ndeference to prison officials, we have determined that prison regulations\\nalleged to infringe constitutional rights are judged under a ‘reasonableness’\\n\\n\\n\\n 165 Larson, 456 U.S. at 245.\\n 166 482 U.S. 342, 344 (1987).\\n 167 Id. at 347.\\n 168 Id. at 347 (quoting Shabazz v. O’Lone, 782 F.2d 416, 420 (3d Cir. 1986)).\\n 169 Id. at 350 (quoting Shabazz, 782 F.3d at 420)).\\n 170 Id. at 348-350 (quoting Turner v. Safley, 482 U.S. 78, 86-87 (1987)).\\n\\n 36\\n\\n Case: 14-20249 Document: 00515020007 Page: 37 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\ntest less restrictive than that ordinarily applied to alleged infringements of\\nfundamental constitutional rights.” 171 Referring to Turner, the Court said,\\n“[w]e recently restated the proper standard: ‘[W]hen a prison regulation\\nimpinges on inmates’ constitutional rights, the regulation is valid if it is\\nreasonably related to legitimate penological interests.’” 172 The Court\\ncontinued, “[t]his approach ensures the ability of corrections officials ‘to\\nanticipate security problems and to adopt innovative solutions to the\\nintractable problems of prison administration,’ and avoids unnecessary\\nintrusion of the judiciary into problems particularly ill suited to ‘resolution by\\ndecree.’” 173 The regulations at issue in Turner included restrictions on the\\nrights of inmates to marry.\\n However, Turner’s “reasonableness” standard of review does not apply to\\nall claims that prison policies are unconstitutional. The Supreme Court held\\nin Johnson v. California that “strict scrutiny is the proper standard of\\nreview” 174 for “an equal protection challenge” to a state prison’s “policy of\\nracially segregating prisoners in double cells in reception centers for up to 60\\ndays each time they enter a new correctional facility.” 175 The Court observed\\nthat “[w]e have never applied Turner to racial classifications,” and “[w]e think\\nthis unsurprising, as we have applied Turner’s reasonable-relationship test\\nonly to rights that are ‘inconsistent with proper incarceration.’” 176 The\\n\\n\\n\\n 171 Id. at 349 (citation omitted).\\n 172 Id. (quoting Turner, 482 U.S. at 89).\\n 173 Id. (quoting Procunier v. Martinez, 416 U.S. 396, 405 (1974)); see also Shaw v.\\n\\nMurphy, 532 U.S. 223, 228-232 (2001) (analyzing whether inmates possess a First\\nAmendment right to provide legal assistance to other inmates that enhances the protections\\notherwise available under Turner and explaining why they do not).\\n 174 543 U.S. 499, 515 (2005).\\n 175 Id. at 502.\\n 176 Id. at 510 (citations omitted).\\n\\n 37\\n\\n Case: 14-20249 Document: 00515020007 Page: 38 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nSupreme Court held in Johnson that “[t]he right not be discriminated against\\nbased on one’s race is not susceptible to the logic of Turner. It is not a right\\nthat need necessarily be compromised for the sake of proper prison\\nadministration.” 177\\n At least two Circuit Courts of Appeals have applied a standard to certain\\ncategories of Establishment Clause claims that differs from Turner’s standard\\nof review. 178 In those cases, prison officials allegedly coerced inmates to\\nparticipate in a program founded on religious tenets. No one contends that the\\nstandard applied in those cases is appropriately applied to the facts of the\\npresent case.\\n The question before us is whether an inmate’s claim that prison policies\\nafford some faiths more favorable treatment than others implicates “a right\\nthat need [not] necessarily be compromised for the sake of proper prison\\nadministration,” 179 to which strict scrutiny would apply, or whether such an\\nEstablishment Clause claim is instead grounded in “certain privileges and\\nrights [that] must necessarily be limited in the prison context,” 180 to which\\nTurner’s more deferential standard would apply. I conclude that Turner’s\\nstandard applies.\\n The Supreme Court has explained that prison officials are not required\\nto provide “identical facilities or personnel” to “every religious sect or group\\nwithin a prison.” 181 “A special chapel or place of worship need not be provided\\n\\n\\n\\n\\n 177 Id.\\n 178 See, e.g., Jackson v. Nixon, 747 F.3d 537, 541-542 (8th Cir. 2014) (inquiring “‘first,\\nhas the state acted; second, does the action amount to coercion; and third, is the object of the\\ncoercion religious or secular’”) (quoting Kerr v. Farrey, 95 F.3d 472, 479 (7th Cir. 1996)).\\n 179 Johnson, 543 U.S. at 510.\\n 180 Id. (citing O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987)).\\n 181 Cruz v. Beto, 405 U.S. 319, 325 n.2 (1972).\\n\\n 38\\n\\n Case: 14-20249 Document: 00515020007 Page: 39 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nfor every faith regardless of size; nor must a chaplain, priest, or minister be\\nprovided without regard to the extent of the demand.” 182 Nevertheless,\\n“reasonable op[p]ortunities must be afforded to all prisoners to exercise the\\nreligious freedom guaranteed by the First and Fourteenth Amendments\\nwithout fear of penalty.” 183\\n Prison officials, therefore, are required to facilitate opportunities for\\nprisoners to worship or otherwise exercise religious beliefs even though,\\noutside the prison context, such involvement would undoubtedly implicate\\nEstablishment Clause concerns. When policies ostensibly designed to honor\\nthe Free Exercise rights of inmates are challenged on the basis that they\\nviolate the Establishment Clause because the policies favor one or more faith\\ngroups over another, logic demands that Turner’s standard applies. In\\nattempting to accommodate the religious beliefs of varying faith groups in\\ncompliance with the Free Exercise Clause, prison officials must operate within\\na zone of “reasonableness.” If policies meet Turner’s reasonableness standard\\nin effectuating the Free Exercise rights of inmates, then those policies should\\nnot be pruned or eliminated as a result of higher scrutiny under the\\nEstablishment Clause, even if those policies do not treat all faith groups\\nprecisely the same. Prison officials have been accorded some flexibility in\\nproviding Free Exercise opportunities for inmates. Inmates’ opportunities for\\nreligious exercise would be diminished if a more restrictive standard were\\napplied to Establishment Clause claims than is applied to Free Exercise\\nclaims, when the allegation is that preference has been given to inmates of one\\nor more faiths. If prison policies are in fact balanced and meet the Turner\\n\\n\\n\\n 182 Id.\\n 183 Id.\\n 39\\n\\n Case: 14-20249 Document: 00515020007 Page: 40 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nstandard, those policies are vindicating only what the First Amendment\\nrequires, and such policies do not amount to government involvement in\\nreligious matters to such an extent that the Establishment Clause is violated.\\n The district court concluded that the TDCJ violated the Establishment\\nClause in three ways.\\n B\\n The district court observed that there “is an ample supply of clerics and\\nlaymen who will volunteer to conduct meetings” for some faith groups, “but\\nthat among Muslims it has been hard to find a consistent supply of such\\nvolunteers.” 184 The district court concluded that, “[i]n such circumstances, a\\npolicy that makes the availability of religious activities dependent upon the\\navailability of outside volunteers necessarily makes it easier for one group to\\npractice its religion over other groups.” 185 Relatedly, the district court\\nconcluded that “TDCJ openly favors the Protestantism [sic] and disfavors\\nIslam by devoting state resources to the former disproportionately.” 186 The\\ndistrict court reasoned that “TDCJ has chosen to allocate substantially more\\nresources to religious groups who can procure outside volunteers than for those\\nwho are unable to recruit sufficient numbers of outside volunteers to comply\\nwith AD 7.30.” 187 The record is clear, however, that the disparity as to\\nresources expended is a function of the number of volunteers, not their\\nreligious affiliations.\\n There is a “valid, rational connection” between permitting volunteers to\\nprovide additional opportunities for the exercise of religious rights and “the\\n\\n\\n\\n 184 Brown v. Livingston, 17 F. Supp. 3d 616, 631 (S.D. Tex. 2014).\\n 185 Id.\\n 186 Id.\\n 187 Id.\\n\\n 40\\n\\n Case: 14-20249 Document: 00515020007 Page: 41 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nlegitimate governmental interest” 188 of prison officials in complying with their\\nobligation to afford “reasonable op[p]ortunities . . . to all prisoners to exercise\\nthe religious freedom guaranteed by the First and Fourteenth\\nAmendment[s].” 189 “[T]he governmental objective” in permitting volunteers\\ninto the TDCJ prisons to provide or assist with religious services and studies\\nis “a legitimate and neutral one” that “operate[s] in a neutral fashion, without\\nregard to the content of the expression.” 190 The record is replete with evidence\\nthat inmates who participate in religious services and studies are less likely to\\nhave disciplinary issues while confined and have lower recidivism rates once\\nreleased. The fact that more volunteers in the TDCJ system were Protestant\\nor Catholic than Muslim was not due to any policy of the TDCJ. The TDCJ\\nmade efforts to recruit more Muslim volunteers, and Muslims who volunteered\\nwere treated the same as other volunteers.\\n The second Turner factor is “whether there are alternative means of\\nexercising the right that remain open to prison inmates.” 191 The Muslim\\ninmates who are the plaintiffs in this case do not seek to eliminate the\\nvolunteer policy as violative of the Establishment Clause. Nor do they ask that\\nadditional training and resources be provided to Muslim volunteers. The\\nplaintiffs instead seek an order permitting all Muslim inmates to gather in\\ngroups of more than four without direct supervision by prison employees or a\\nvolunteer. That would not vindicate the right to have a state actor cease\\nexcessive entanglement with religion. 192 What the plaintiffs seek indicates\\nthat their complaints regarding the volunteer policy and resources devoted to\\n\\n\\n 188 Turner v. Safley, 482 U.S. 78, 89 (1987).\\n 189 Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972).\\n 190 Turner, 482 U.S. at 90 (citations omitted).\\n 191 Id.\\n 192 See generally Lemon v. Kurtzman, 403 U.S. 602, 613 (1971).\\n\\n 41\\n\\n Case: 14-20249 Document: 00515020007 Page: 42 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nimplementing volunteers’ access to inmates is not grounded in the\\nEstablishment Clause. If the volunteer policy were eliminated or fewer\\nresources were expended to support volunteer efforts, inmates, including\\nMuslim inmates, would have fewer opportunities for worship and religious\\nstudy.\\n The third Turner “consideration is the impact accommodation of the\\nasserted constitutional right will have on guards and other inmates, and on\\nthe allocation of prison resources generally.” 193 “When accommodation of an\\nasserted right will have a significant ‘ripple effect’ on fellow inmates or on\\nprison staff, courts should be particularly deferential to the informed discretion\\nof corrections officials.” 194 If the volunteer policy were eliminated as violative\\nof the Establishment Clause, inmates would be adversely impacted, but\\nresources would no longer be spent by the TDCJ to implement the volunteer\\nprogram.\\n The final Turner consideration is that “the absence of ready alternatives\\nis evidence of the reasonableness of a prison regulation.” 195 “By the same\\ntoken, the existence of obvious, easy alternatives may be evidence that the\\nregulation is not reasonable, but is an ‘exaggerated response’ to prison\\nconcerns.” 196 The alternatives to allowing volunteers into the TDCJ prisons to\\nfacilitate religious worship and study include excluding the volunteers or\\npaying other individuals to replace them. The first alternative would, as\\ndiscussed, reduce inmates’ religious exercise. The second would require\\nconsiderable expenditures.\\n\\n\\n\\n 193 Turner, 482 U.S. at 90.\\n 194 Id. (citation omitted).\\n 195 Id. (citing Block v. Rutherford, 468 U.S. 576, 587 (1984)).\\n 196 Id.\\n\\n 42\\n\\n Case: 14-20249 Document: 00515020007 Page: 43 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n When assessed under the Turner considerations, the volunteer policy\\nand the resources expended to implement it are reasonably related to the\\nTDCJ’s obligation to afford inmates reasonable opportunities to exercise\\nreligious freedom.\\n The district court erred in applying strict scrutiny to the claim that the\\nvolunteer policy violates the Establishment Clause because fewer Muslims\\nvolunteer than Protestants or Catholics and more resources are devoted to\\nProtestant and Catholic volunteers than Muslim volunteers. The TDCJ’s\\npolicies are facially neutral. The Larson v. Valente decision, 197 on which the\\ndistrict court relied, 198 explains that strict scrutiny does not “apply to laws\\naffording a uniform benefit to all religions.” 199 Seven years after Larson was\\ndecided, the Supreme Court reiterated, “Larson teaches that, when it is\\nclaimed that a denominational preference exists, the initial inquiry is whether\\nthe law facially differentiates among religions. If no such facial preference\\nexists, we proceed to apply the customary three-pronged Establishment Clause\\ninquiry derived from Lemon v. Kurtzman.” 200 The Lemon inquiry does not\\nemploy strict scrutiny. 201 However, for the reasons considered above, we\\nconclude that Turner, rather than Lemon, provides the proper standard of\\nreview.\\n\\n\\n 197 456 U.S. 228 (1982).\\n 198 Brown v. Livingston, 17 F. Supp. 3d 616, 630 (S.D. Tex. 2014).\\n 199 Larson, 456 U.S. at 252.\\n 200 Hernandez v. C.I.R., 490 U.S. 680, 695 (1989) (citing Larson, 456 U.S. at 252); see\\n\\nalso In re Navy Chaplaincy, 738 F.3d 425, 430 (D.C. Cir. 2013) (“As the challenged policies\\nare facially neutral, Larson doesn’t trigger strict scrutiny, and we proceed to Lemon.”);\\nKoenick v. Felton, 190 F.3d 259, 264 (4th Cir. 1999) (“Strict scrutiny in the Establishment\\nClause context is to be used to evaluate only those statutes that facially discriminate between\\nreligious denominations or between religion and non-religion.”) (citing Hernandez, 490 U.S.\\nat 695).\\n 201 See, e.g., Larson, 456 U.S. at 252 (“the Lemon tests . . . do not reflect the same\\n\\nconcerns that warranted the application of strict scrutiny.”).\\n 43\\n\\n Case: 14-20249 Document: 00515020007 Page: 44 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n Brown argues that we should apply the Lemon test. The Supreme Court\\nhas observed that “just two years after Lemon was decided, we noted that the\\nfactors identified in Lemon serve as ‘no more than helpful signposts,’” 202 and\\n“[m]any of our recent cases simply have not applied the Lemon test.” 203 The\\nSupreme Court then proceeded to apply an “analysis . . . driven both by the\\nnature of the monument and by our Nation's history” to a claim that a Ten\\nCommandments monument displayed on the grounds of the Texas capitol\\nviolated the Establishment Clause. 204 The Supreme Court did not apply either\\nstrict scrutiny or the Lemon factors. 205\\n My conclusion that the Turner v. Safley standard of review 206 applies,\\nrather than the Lemon v. Kurtzman criteria, 207 is informed by these\\nprecedents. Additionally, if applied literally, the criteria set forth in Lemon\\n\\n\\n\\n 202 Van Orden v. Perry, 545 U.S. 677, 686 (2005) (citations omitted); but see McCreary\\nCounty v. ACLU of Ky., 545 U.S. 844, 859-66 (2005) (applying the Lemon factors to displays\\nof the Ten Commandments on the walls of state courthouses, concluding that the purpose of\\nthe displays was not secular and therefore violated the Establishment Clause).\\n 203 Van Orden, 545 U.S. at 686 (citations omitted).\\n 204 Id.\\n 205 See also Am. Legion v. Am. Humanist Ass’n, 588 U.S. ___, slip op. at *12-13 (2019)\\n\\n(opinion of ALITO, J.) (plurality opinion) (“Lemon ambitiously attempted to distill from the\\nCourt’s existing case law a test that would bring order and predictability to Establishment\\nClause decisionmaking. . . . If the Lemon Court thought that its test would provide a\\nframework for all future Establishment Clause decisions, its expectation has not been met.”\\n“As Establishment Clause cases involving a great array of laws and practices came to the\\nCourt, it became more and more apparent that the Lemon test could not resolve them.”); id.\\nat *24-25 (“While the Lemon Court ambitiously attempted to find a grand unified theory of\\nthe Establishment Clause, in later cases, we have taken a more modest approach that focus\\non the particular issue at hand and looks to history for guidance.”).\\n 206 482 U.S. 78, 89-90 (1987).\\n 207 403 U.S. 602, 612-613 (1971) (“Every analysis in this area must begin with\\n\\nconsideration of the cumulative criteria developed by the Court over many years. Three such\\ntests may be gleaned from our cases. First, the statute must have a secular legislative\\npurpose; second, its principal or primary effect must be one that neither advances nor inhibits\\nreligion; finally, the statute must not foster ‘an excessive government entanglement with\\nreligion.’”) (citations omitted).\\n 44\\n\\n Case: 14-20249 Document: 00515020007 Page: 45 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nare in tension with the obligation the Supreme Court has said prison officials\\nhave to afford inmates opportunities to attend religious services and pursue\\nreligious studies. The second Lemon criterion is that the regulation’s\\n“principal or primary effect must be one that neither advances nor inhibits\\nreligion.” 208 Prison policies that provide opportunities for inmates to worship\\nand pursue religious studies have the purpose of facilitating inmates’ exercise\\nof First and Fourteenth Amendment Free Exercise rights and advance religion\\nfor those inmates who choose to participate. It is difficult to see how the\\nSupreme Court’s jurisprudence could be construed to require prison officials to\\nfacilitate religious services and studies and at the same time, to deem prison\\nofficials in violation of the Establishment Clause if they do facilitate such\\nreligious activities.\\n The Lemon factors could arguably be applied with the acknowledgement\\nthat prison officials have an obligation grounded in the First and Fourteenth\\nAmendments to afford inmates reasonable opportunities to exercise their\\nreligious beliefs. Viewed through that lens, the secular purpose of a direct\\nsupervision policy, when applied to secular as well as religious gatherings, is\\nto maintain safety and security within a prison. The secular purpose of\\ntraining volunteers who facilitate religious activities or who supervise inmates\\nconducting or participating in religious pursuits is to comply with the\\nconstitutional obligation to provide inmates reasonable opportunities to\\nengage in the free exercise of their religious beliefs. Viewed in light of this\\noverarching obligation, the direct supervision policy and the training of\\nvolunteers is facially neutral and neither advances nor inhibits any particular\\nfaith. Here again, it is the paucity of Muslim volunteers as compared to\\n\\n\\n 208 Id.\\n 45\\n\\n Case: 14-20249 Document: 00515020007 Page: 46 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nChristian volunteers that results in Christian inmates having more\\nopportunities for religious exercise. As to the third Lemon factor, a facially\\nneutral policy that provides reasonable opportunities for inmates to exercise\\ntheir religious beliefs is not excessive governmental entanglement with\\nreligion.\\n C\\n The district court additionally determined that Jewish and Native\\nAmerican inmates were housed in a manner that facilitates the exercise of\\ntheir religious beliefs, while Muslim inmates were not. The district court\\nconcluded this violated the Establishment Clause:\\n The fact that Jewish inmates are assigned to four particular\\n units within the prison system specifically to bring them closer to\\n Jewish religious volunteers and that Native American inmates are\\n assigned to housing units specifically selected to make religions\\n [sic] activities more available to them, while TDCJ makes no effort\\n to house Muslim inmates in units close to the population centers\\n where Muslim volunteers might be recruited, constitutes a clear\\n violation of the Establishment Clause. Prison officials are\\n deliberately favoring Jewish and Native American inmates over\\n Muslim inmates by facilitating their access to religious activities.\\n Thus, TDCJ has intentionally made it easier for Jewish inmates\\n over Muslim inmates to have volunteer-led religious activities.\\n That circumstance alone, in and of itself, constitutes a violation of\\n the Establishment Clause.” 209\\n\\n\\n 209Brown, 17 F. Supp. 3d at 631 (citations omitted). Relatedly, the district court found\\nor concluded:\\n The TDCJ’s inmate assignment policy has not been neutrally applied. To the\\n contrary, unlike Muslim inmates, Jewish inmates are specifically assigned to\\n units in order that they are closer to prospective volunteers. The TDCJ has\\n four units designated for Jewish inmates and Jewish inmates are intentionally\\n located in places where the largest number of Jews reside so as to enhance the\\n opportunity for Jewish inmates to interact with Jewish citizens in religious\\n activities. Likewise, Native American inmates are assigned to a specifically\\n designated unit to facilitate access to each other and to enhance Native\\n American religious activities. By contrast, there are no units designated as\\n 46\\n\\n Case: 14-20249 Document: 00515020007 Page: 47 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n The record does not support the conclusion that the TDCJ’s policies have\\nresulted in greater access to religious exercise for Jewish and Native American\\ninmates as compared to Muslim inmates. There are proportionately more\\nMuslim volunteers than Jewish or Native American volunteers. Nor does the\\nevidence support a conclusion that large numbers of Jewish or Native\\nAmerican inmates are concentrated in a few prison units, even though it is\\nundisputed that four prison units were designated as “Jewish. Nor is there\\nsupport in the record for the inmates’ assertion that Jewish and Native\\nAmerican inmates had more religious services or more access to religious\\nactivities than Muslim inmates. I consider the evidence as to each of the\\ndistrict court’s findings or conclusion in more detail.\\n 1\\n The TDCJ classified nine faith groups 210 as comprising the category of\\n“Jewish” inmates in May 31, 2013, for purposes of providing information to the\\nparties and the district court in this litigation. That evidence, on which all\\nparties rely, reflects that as of May 31, 2013, there were 922 Jewish inmates\\nhoused in 95 of 117 TDCJ prison units. At that time, there were no Jewish\\nchaplains, 211 no certified volunteer chaplains’ assistants, 212 “one contract\\nJewish Chaplain[],” 213 and 15 Jewish or Hebrew volunteers. 214 That is a ratio\\nof one chaplain or volunteer to approximately 58 inmates. Though the district\\n\\n\\n\\n Muslim units in close proximity to Muslim citizen volunteers—that\\n consideration was not contemplated by TDCJ in assigning Muslim inmates to\\n housing units. Id. at 629-30.\\n 210 See Parties Joint Ex. 15 (reflecting nine faiths identified by inmates, Nazarite,\\n\\nJewish, Hebrew, Hebrew Israelite, Orthodox Jew, Shaivite, Kabbalah, Orthodox Hebrew,\\nand Reformed Jewish, as collectively comprising 922 “Jewish” inmates).\\n 211 Parties Joint Ex. 13.\\n 212 Parties Joint Ex. 19.\\n 213 Brown v. Livingston, 17 F. Supp. 3d 616, 622 (S.D. Tex. 2014).\\n 214 Parties Joint Ex. 18.\\n\\n 47\\n\\n Case: 14-20249 Document: 00515020007 Page: 48 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\ncourt concluded that “Jewish inmates are specifically assigned to units in order\\nthat they are closer to prospective volunteers,” 215 if that were the intent (and\\nthere is no evidence that it was), then significant numbers of Jewish volunteers\\ndid not materialize.\\n By comparison, the undisputed TDCJ data reflects there were 6,775\\nMuslim inmates (comprised of 12 different Muslim faith groups identified by\\nTDCJ inmates) as of May 31, 2013, 216 who were confined in 113 of the 117\\nTDCJ units. 217 There were five Muslim chaplains as of that date, 218 no certified\\nvolunteer chaplain’s assistants, 219 and 222 Muslim volunteers. 220 That results\\nin a ratio of one volunteer or chaplain to approximately 30 Muslim inmates.\\n A TDCJ employee testified that there have been four units designated\\nfor “Jewish” inmates, 221 and one of these was also a “Kosher” unit. 222 The\\nrecord is sparse as to why four units were designated as “Jewish”, and there is\\nno evidence in the record as to how inmates are chosen to be assigned there.\\nThe record reflects that the Wynne Unit was designated as a Jewish unit, but\\nthe names of the other three units do not appear in the record. A Muslim\\nchaplain and a non-Roman Catholic chaplain were the two chaplains assigned\\nto the Wynne Unit. 223 It housed 2592 inmates who had expressed a faith\\npreference, of whom 28 were Jewish (approximately 1%), 135 were Muslim\\n(approximately 5.2%), and 48 were Native American (1.6%). 224 The Muslim\\n\\n\\n 215 Brown, 17 F. Supp. 3d at 629.\\n 216 Parties Joint Ex. 15.\\n 217 Parties Joint Ex. 16.\\n 218 Parties Joint Ex. 14.\\n 219 Parties Joint Ex. 19.\\n 220 Parties Joint Ex. 18.\\n 221 ROA 3214.\\n 222 ROA 3214.\\n 223 Parties Joint Ex. 13.\\n 224 Parties Joint Ex. 16.\\n\\n 48\\n\\n Case: 14-20249 Document: 00515020007 Page: 49 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nchaplain testified that he did not know whether the reason that the Wynne\\nUnit was designated as a “Jewish” unit was so that “volunteers might be more\\navailable to the urban areas.” 225 He said that it was his responsibility to “make\\nsure” that the Jewish inmates at the Wynne Unit “have their services” and\\n“their holidays” and that “if they have any problem, they come to me.” 226\\n As to the other three “Jewish” units, it is clear that none of them housed\\na large percentage of Jewish inmates. From an analysis of the Parties Joint\\nExhibit 16, it can be determined that at most, 21% of the 922 Jewish inmates\\n(as many as 196) were housed within four units designated for Jewish\\ninmates. 227 The remaining 79% or more of Jewish inmates were housed in 94\\nother TDCJ units.\\n There was testimony that an unspecified number of Native Americans\\nhave been assigned to an unspecified number of units to make communal\\nworship feasible. 228 As of May 31, 2013, there were 4,473 Native American\\ninmates 229 housed in 108 of 117 TDCJ units. 230 Native American inmates were\\nwidely distributed among these units. 231 They were not concentrated in a\\nsmall number of prison units. There was one Native American chaplain, 232 no\\ncertified volunteer chaplain’s assistant, 233 and there were six Native American\\n\\n\\n 225 ROA 3784.\\n 226 ROA 3784.\\n 227 Parties Joint Ex. 16. The record reflects that the Wynne Unit was designated for\\n\\nJewish inmates (ROA 3784), but does not identify the other three designated units. There\\nwere 28 Jewish inmates housed in the Wynne Unit. Even assuming that the three designated\\nunits other than the Wynne Unit were those with the largest populations of Jewish inmates,\\nthen, at most, the number of Jewish inmates housed in “designated” units was 196 out of 922\\nJewish inmates, approximately 21%.\\n 228 ROA 3215-16.\\n 229 Parties Joint Ex. 15.\\n 230 Parties Joint Ex. 16.\\n 231 Parties Joint Ex. 16.\\n 232 Parties Joint Exs. 13 and 14.\\n 233 Parties Joint Ex. 19.\\n\\n 49\\n\\n Case: 14-20249 Document: 00515020007 Page: 50 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nvolunteers. 234 That results in a ratio of 1 chaplain or volunteer to 744 Native\\nAmerican inmates. Native American inmates had access to far fewer chaplains\\nand volunteers than Muslim inmates.\\n The district court concluded that TDCJ had assigned “Muslim inmates[]\\nprimarily to housing units that are long distances from population centers\\nwhere a significant numbers [sic] of Muslim civilians reside.” 235 The district\\ncourt detailed evidence of the number of Muslim inmates confined in particular\\ncounties as compared to the Muslim populations in those counties. 236 The\\ndistrict court concluded, “[w]hether it is the intent of the TDCJ to assign\\nMuslim inmates to areas in the state where Muslim volunteers do not reside\\nthat, nevertheless, is the effect of unit assignments.” 237 These findings imply\\nthat TDCJ could and should house Muslims in prison units closer to larger\\npopulations of Muslims. But there is no evidence that there are any TDCJ\\nprison units that are close to larger populations of Muslims or that it is\\nphysically feasible to house 6,775 Muslim inmates near larger populations of\\nMuslims.\\n Brown’s brief in this court implicitly acknowledges that none of Texas’s\\nprison units are located near Muslim residents. Brown asserts that the TDCJ\\nhas “construct[ed] . . . prison units in areas where there are plentiful Christian\\nvolunteers but virtually no Muslim residents anywhere close.” But there is\\nabsolutely no evidence that the State of Texas has chosen prison locations\\nbased on faith preferences of inmates, the proximity of civilian populations of\\nparticular faiths, or to create distances from Muslim civilian populations.\\n\\n\\n\\n 234 Parties Joint Ex. 18.\\n 235 Brown v. Livingston, 17 F. Supp. 3d 616, 623 (S.D. Tex. 2014).\\n 236 Id. at 623-24.\\n 237 Id. at 623.\\n\\n 50\\n\\n Case: 14-20249 Document: 00515020007 Page: 51 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n 2\\n The evidence does not support the conclusion that the assignment of\\nsome Jewish and Native American inmates to particular units resulted in\\ngreater access to chaplains or volunteers than was available to Muslim\\ninmates. I will nevertheless assume that the TDCJ intentionally assigned\\nsome number of Jewish and Native American inmates to specific prison units\\nto facilitate the exercise of their respective religious beliefs but did not do so\\nfor any Muslim inmates.\\n The first consideration under Turner is whether such a policy has a valid,\\nrational connection to the governmental interest in providing reasonable\\nopportunities for all inmates to exercise their religious freedom rights. As\\npreviously noted, the Supreme Court has recognized that prison officials are\\nnot required to provide “identical facilities or personnel” to “every religious sect\\nor group within a prison.” 238 Jewish and Native American volunteers were\\neven more scarce than Muslim volunteers. There were no Jewish chaplains,\\nonly one paid outside Jewish chaplain, and there was one Native American\\nChaplain. Assigning some Jewish inmates and some Native American inmates\\nto specific prison units to facilitate the opportunity for religious exercise for\\nthose inmates, was reasonable.\\n The second Turner consideration is whether there are alternative means\\nfor Muslim inmates to exercise their Establishment Clause rights.\\nEliminating any favoritism that might have been shown to Muslim inmates is\\nnot the remedy that the plaintiffs seek. Nor is there evidence that, had Muslim\\ninmates been housed differently, their opportunities for religious exercise\\nwould have been increased.\\n\\n\\n 238 Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972).\\n 51\\n\\n Case: 14-20249 Document: 00515020007 Page: 52 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n The evidence is silent as to the third Turner consideration, which is the\\nimpact on guards, other inmates, or the allocation of prison resources\\ngenerally. With regard to the fourth Turner factor, it does not appear that\\nceasing to assign Jewish and Native American inmates in the way that the\\nTDCJ has done would either decrease the “favoritism” shown to those inmates\\nor increase Muslim inmates’ opportunities to worship and study. There is no\\nevidence that Jewish or Native American inmates enjoyed more than one hour\\nof worship each week, or its equivalent. The number of Muslim volunteers\\nexceeded the relative number of Jewish and Native American volunteers even\\nunder the TDCJ’s existing housing policies, and there is no indication that\\nchanging that policy would have any effect other than reducing the\\nopportunities for religious exercise by Jewish and Native American inmates.\\n The TDCJ’s housing policies do not fail Turner’s rationality review. The\\npolicy does not violate the Establishment Clause.\\n D\\n Brown argues that the direct supervision policy applies only to religious\\nactivities and not to secular ones within TDCJ’s prisons and therefore, that the\\ndirect supervision policy violates the Establishment Clause. The district court\\ndid not ground its finding of an Establishment Clause violation on such a basis.\\n Brown contends, without any record citations, that band, choir practice,\\ncraft shop, and Safe Prison Program classes are indirectly supervised. As a\\nfactual matter, the evidence reflects that secular activities in prisons that are\\nnot directly supervised almost invariably involve inmates who have been\\nscreened for disciplinary violations. Religious gatherings, by contrast, involve\\ninmates with varying security classifications. Applying the Turner\\nconsiderations, there was no Establishment Clause violation.\\n\\n\\n 52\\n\\n Case: 14-20249 Document: 00515020007 Page: 53 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n The first Turner inquiry is whether there is a “‘valid, rational\\nconnection’ between the prison regulation and the legitimate governmental\\ninterest put forward to justify it.” 239 Two inmates testified that two craft shops\\nat the Robertson Unit were indirectly supervised. 240 However, another witness\\ntestified that craft shops are directly supervised, 241 and the unrefuted\\ntestimony was that all inmates in all craft shops were “screened very\\nclosely.” 242 Being allowed to go to craft shop was “a kind of a privilege,” and\\n“craft shop privileges” could be lost due to disruptive conduct. 243 The evidence\\nreflects that “[t]here’s a big difference between craft shop and religious\\nservices.” 244 The evidence was undisputed that TDJC “screen[s] all the\\noffenders in the craft shop . . . very closely,” but “these offenders going to all\\nthese religious services all across the unit in different custodies” are “not\\nscreened and they have gang tendencies and staff assault histories and\\nweapons possessions.” 245 There is therefore “a greater propensity for violence\\nin [TDCJ’s] open-call services than these other faith groups that are directly\\nsupervised now.” 246 Muslim inmates who attend Jumu’ah are not screened\\nbased on disciplinary criteria or offender category.\\n There was evidence that at one prison in the TDCJ system, the\\nRobertson Unit, a Christian choir was permitted to practice in a multi-purpose\\nroom with an officer stationed outside, looking in through a window that went\\n\\n\\n\\n 239 Turner v. Safley, 482 U.S. 78, 89 (1987) (quoting Block v. Rutherford, 468 U.S. 576,\\n586 (1984)).\\n 240 ROA 2666; 3252-3253; 3264-3267; 4060.\\n 241 ROA 4058-4060.\\n 242 ROA 4176.\\n 243 ROA 4175-76.\\n 244 ROA 4176.\\n 245 ROA 4176.\\n 246 ROA 4176.\\n\\n 53\\n\\n Case: 14-20249 Document: 00515020007 Page: 54 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nfrom the ceiling to waist level. 247 This occurred for a ten-year period, but choir\\npractice was discontinued by an assistant warden. 248 The record is silent as to\\nwhether these inmates were screened based on their disciplinary records or\\noffender category.\\n With regard to dormitories, the evidence reflected that “dormitory\\noffenders are screened. They’re some of [TDCJ’s] best offenders and they’re\\nnot coming from all over the facility.” 249 There was also testimony that\\n [t]he offenders in the dorm housing area are around each other\\n every day, day in and day out, when they’re not working . . . . The\\n offenders that go to programmatic activities such as religious\\n services, they don’t have access to each other every day. So, you’re\\n more concerned about gatherings that bring offenders from\\n different areas of the facility because of things that they could be\\n doing that is not appropriate for whatever the program is, whether\\n it be religious or education or whatever. 250\\n A TDCJ witness testified that other than some of the craft shops and\\ndormitories, there are no situations in which indirect supervision is used. 251 A\\nTDCJ witness testified that inmates are directly supervised when they are in\\noutdoor recreation areas and when in day rooms engaging in other secular\\nactivities. 252\\n There is a rational connection between the direct supervision policy for\\nreligious gatherings of more than four inmates and the legitimate\\ngovernmental interest in safety and security in prisons. The evidence of\\n\\n\\n\\n\\n 247 ROA 3253; 3263-64.\\n 248 ROA 3264.\\n 249 ROA 4205; see also ROA 4139-4140.\\n 250 ROA 3720-21.\\n 251 ROA 4201; 4205-06.\\n 252 ROA 4141.\\n\\n 54\\n\\n Case: 14-20249 Document: 00515020007 Page: 55 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nindirect supervision of some secular activities by some inmates, who were\\nscreened, does not undermine the rationality of that connection.\\n The second and third Turner 253 factors have been considered above, and\\nthat discussion will not be repeated. As to the fourth consideration, “the\\nabsence of ready alternatives is evidence of the reasonableness of a prison\\nregulation.” 254 Restricting indirectly supervised religious gatherings to\\ninmates who are not security risks would not address legitimate concerns\\nassociated with inmate-led services and studies, discussed above.\\n The district court did not err in failing to conclude that the\\nEstablishment Clause was violated because some secular activities by inmates\\nwho were screened based on their disciplinary records were permitted to\\ngather for secular activities while indirectly supervised.\\n VII\\n In sum, we hold that the consent decree does not remain necessary to\\ncorrect current and ongoing violations of RLUIPA, the Free Exercise Clause,\\nor the Establishment Clause. Accordingly, the TDCJ’s motion to vacate the\\nconsent decree should have been granted.\\n The district court also awarded attorneys’ fees to Brown and the Inmate\\nIntervenors as prevailing parties pursuant to 42 U.S.C. § 1988(b). 255 However,\\nin light of our conclusion as to the merits of the TDCJ’s motion to vacate the\\nconsent decree, Brown and the Inmate Intervenors are not prevailing parties.\\nWe vacate the award of attorneys’ fees.\\n\\n\\n\\n 253 Turner v. Safley, 482 U.S. 78, 90 (1987) (“A second factor . . . is whether there are\\nalternative means of exercising the right that remain open to prison inmates,” and “[a] third\\nconsideration is the impact accommodation of the asserted constitutional right will have on\\nguards and other inmates, and on the allocation of prison resources generally.”).\\n 254 Id.\\n 255 ROA 2021.\\n\\n 55\\n\\n Case: 14-20249 Document: 00515020007 Page: 56 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n * * *\\n For the foregoing reasons, the district court’s denial of the TDCJ’s motion\\nto terminate the consent decree and award of attorneys’ fees to Brown and the\\nInmate Intervenors were in error. The district court’s judgment is\\nREVERSED, and the consent decree is terminated.\\n\\n\\n\\n\\n 56\\n\\n Case: 14-20249 Document: 00515020007 Page: 57 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4413473/\", \"author_raw\": \"PRISCILLA R. OWEN, Circuit Judge, joined by KING, Circuit Judge, in Parts\"}, {\"author\": \"KING, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"KING, Circuit Judge, concurring in part and concurring in the judgment:\\n I join in Parts I, II, III, IV, V, and VII of Judge Owen’s opinion. I\\ndo not join in part VI because I would conclude that the Texas Department of\\nCriminal Justice’s housing policy violates the Establishment Clause.\\nNevertheless, the Consent Decree is broader than necessary to remedy this\\nviolation. The inmates therefore fail to meet their burden under the Prison\\nLitigation Reform Act to continue the Consent Decree. Accordingly, I also\\nconcur in the judgment. 1\\n\\n\\n\\n\\n 1The TDCJ filed its notice of appeal in this case more than five years ago. This panel\\nheard oral argument almost four years ago. The panel’s delay in deciding this case is\\ninexcusable. I will not invite further delay by writing more.\\n 57\\n\\n Case: 14-20249 Document: 00515020007 Page: 58 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4413473/\", \"author_raw\": \"KING, Circuit Judge, concurring\"}, {\"author\": \"JAMES L. DENNIS, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"JAMES L. DENNIS, Circuit Judge, dissenting:\\n The district court concluded that portions of the district court’s 1977\\nconsent decree were required to prevent a violation of Muslim inmates’ rights\\nto religious freedom under the Religious Land Use and Institutionalized\\nPersons Act (RLUIPA). The majority reverses, holding that the Texas\\nDepartment of Criminal Justice (TDCJ) was not responsible for the substantial\\nburden imposed on Muslim inmates’ religious exercise. 1 I disagree, and would\\naffirm the district court’s judgment. The TDCJ’s current course of action, the\\n“Scott Plan,” violates the rights of Muslim prisoners in Texas under the\\nRLUIPA. The Scott Plan imposes a substantial burden on Muslim prisoners’\\nreligious exercise, does not further a compelling governmental interest, and,\\neven assuming it furthered some governmental interest, is not the least\\nrestrictive means of doing so. The district court recognized this RLUIPA\\nviolation and determined that certain provisions of the 1977 consent decree\\nneeded to continue in effect to protect Muslim inmates from a continuing\\nviolation of RLUIPA. The district court also determined the other\\nrequirements of the Prison Litigation Reform Act (PLRA) were satisfied,\\njustifying continuing prospective relief. In reversing the district court as to the\\nRLUIPA violation, the majority seriously errs. For these reasons, I\\nrespectfully dissent.\\n I\\n The consent decree that is the subject of this litigation is the result of a\\n1977 lawsuit brought by Bobby Brown, a Muslim prisoner who claimed that\\n\\n\\n\\n 1I do not agree fully with the majority’s analysis in other portions of the opinion, such\\nas the Free Exercise and Establishment Clause issues. I do not address these portions of the\\nopinion fully here because the district court should be affirmed solely on the basis of the\\nongoing violation of RLUIPA.\\n 58\\n\\n Case: 14-20249 Document: 00515020007 Page: 59 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nTexas prisons unlawfully restricted Islamic religious exercise. The parties\\nresolved the case with the consent decree, which mandated that Muslim\\nprisoners be afforded equal time for religious activities as compared to\\nProtestant, Catholic, and Jewish inmates, or at least no less than two hours a\\nweek. The consent decree requires that if a prison-employed chaplain or\\nvolunteer is available, he or she shall supervise the gathering. If neither is\\navailable, however, it is decreed that Muslim prisoners may gather to conduct\\ntheir religious services “under appropriate supervision,” which has taken the\\nform of indirect supervision. From 1977 to 2012, while the consent decree was\\nin effect, Muslim prisoners gathered for religious services under indirect\\nsupervision, with a prison official in the vicinity surveilling intermittently\\nthrough a window or video and audio surveillance.\\n In 2009, William Scott, a Jehovah’s Witness prisoner of the State\\nof Texas, sued the State claiming that Jehovah’s Witnesses, like Muslims,\\nshould be allowed to meet for group religious exercise under indirect\\nsupervision. Compl. (Dkt. No. 1), Scott v. Pierce, No. 4:09-CV-3991 (S.D. Tex.\\nDec. 11, 2009). The district court in the Scott case held the disparate treatment\\nbetween Jehovah’s Witnesses and Muslims violated the Establishment Clause\\nand ordered the State to propose a method of compliance. Scott v. Pierce, 4:09-\\nCV-3991, 2012 U.S. Dist. LEXIS 190126, at *15 (S.D. Tex. May 7, 2012)\\n(unpublished). In its attempt at compliance, the State submitted the Scott\\nPlan, which required direct supervision for all religious services, including\\nMuslim services. Proposed Compliance Plan (Dkt. No. 69), Scott v. Pierce, No.\\n4:09-CV-3991 (S.D. Tex. Sept. 4, 2012). In practice, the Scott Plan—requiring\\ndirect supervision of all religious services—contravened the consent decree—\\nrequiring that Muslim prisoners be permitted to gather “under appropriate\\nsupervision” where direct supervision was unavailable.\\n 59\\n\\n Case: 14-20249 Document: 00515020007 Page: 60 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n Because the Scott Plan directly conflicts with the consent decree, the\\nTDCJ moved in August 2012 to terminate the consent decree pursuant to the\\nPLRA. 2 The district court denied TDCJ’s motion, finding that the portions of\\nthe consent decree that afford Muslim prisoners the right to equal time for\\nreligious exercise as afforded to prisoners of other faiths were necessary to\\nprevent the violation of a federal right. Although TDCJ appeals from that\\ndenial, it failed to challenge the district court’s underlying factual findings in\\nits opening brief.\\n II\\n The majority holds that the district court erred in finding a\\ncontinuing violation of RLUIPA. That statute provides that the government\\nshall not “impose a substantial burden on the religious exercise of a person\\nresiding in or confined to an institution,” unless the government can prove that\\nthe substantial burden “(1) is in furtherance of a compelling governmental\\ninterest; and (2) is the least restrictive means of furthering that compelling\\ngovernmental interest.” 42 U.S.C. § 2000cc-1. The majority does not dispute\\nthe undoubtedly substantial burden imposed on Muslim inmates by the Scott\\nPlan. Instead, the majority holds that any burden placed on Muslim inmates\\nwas not, as a matter of law, caused by the TDCJ. In my view, this conclusion\\nis based on an erroneous reading of our case law in this area.\\n\\n\\n\\n\\n 2 Under the PLRA, the filing of a motion to terminate automatically stays the\\neffectiveness of a consent decree issued pursuant to that statute. 18 U.S.C. § 3626(e). After\\nthe district court denied the motion to terminate the consent decree, this court continued the\\nPLRA’s stay of the consent decree pending appeal, such that since 2012, the consent decree\\nhas not been in effect and Muslim inmates have been subjected to the Scott Plan, under which\\nthey are not afforded the opportunity to meet without direct supervision.\\n 60\\n\\n Case: 14-20249 Document: 00515020007 Page: 61 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n A\\n The majority opinion’s principal conclusion with respect to plaintiffs’\\nRLUIPA claim is that, as a matter of law, the TDCJ did not cause the\\nsubstantial burden Muslim inmates faced. Instead, the majority reasons, the\\nsubstantial burden on Muslim inmates was caused by the lack of outside\\nvolunteers available to supervise Muslim services. The majority’s reasoning\\ndraws on a single line from Adkins v. Kaspar, in which a panel of this court\\nstated that the burden on the religious exercise of members of the Yahweh\\nEvangelical Assembly (YEA) in Texas prisons “results . . . from a dearth of\\nqualified outside volunteers . . ., not from some rule or regulation that directly\\nprohibits such gatherings.” 393 F.3d 559, 571 (5th Cir. 2004). However, the\\nmajority ignores Adkins’s further admonition that analyzing whether a\\nsubstantial burden exists under RLUIPA “requires a case-by-case, fact-specific\\ninquiry,” because we have not “craft[ed] a bright-line rule.” Id. at 571. Here,\\nthe majority flouts this cautionary language by converting a single sentence in\\nAdkins into a bright-line rule that Texas inmates cannot establish causation\\nagainst TDCJ with respect to the requirement that they be directly supervised\\nfor religious services.\\n Although Adkins itself reveals the error in the majority’s analysis, this\\npanel is not the first to interpret Adkins. In Mayfield v. Texas Department of\\nCriminal Justice, 529 F.3d 599 (5th Cir. 2008), we held that the TDCJ violated\\nRLUIPA by applying the direct-supervision rule—the same rule at issue in this\\ncase—to Odinist inmates. 529 F.3d at 614–15. Mayfield distinguished Adkins\\nbecause, unlike in Adkins, where “the volunteer policy was implemented\\nuniformly,” uneven application of the direct-supervision policy in Mayfield\\n“suggest[ed] that the burden [was] at least partially imposed by the TDCJ’s\\ndisparate application.” Id. at 614. The majority acknowledges Mayfield but\\n 61\\n\\n Case: 14-20249 Document: 00515020007 Page: 62 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nargues that Adkins nevertheless controls because “[t]he direct supervision\\nrequirement under the Scott Plan has been imposed uniformly, as it was in\\nAdkins.” Supra Part IV. I disagree. Adkins is distinguishable for at least two\\nreasons.\\n First, as in Mayfield, there is evidence here that the TDCJ causes\\ndifferent religious groups to be treated differently. The district court explicitly\\nfound that “unlike Muslim inmates, Jewish inmates are specifically assigned\\nto units in order that they are closer to prospective volunteers,” and “[l]ikewise,\\nNative American inmates are assigned to a specifically designated unit to\\nfacilitate access to each other and to enhance Native American religious\\nactivities.” These factual findings were not challenged on appeal by TDCJ. 3\\nThis inconsistency between treatment of Muslim inmates versus Native\\nAmerican and Jewish inmates reflects that, although the direct-supervision\\npolicy on its face may appear to apply uniformly, the extent of its effects has\\nbeen intentionally tempered with respect to some, but not other, groups. This,\\nlike the evidence in Mayfield of inconsistent application of the policy,\\n“suggest[s] that the burden is at least partially imposed by the TDCJ’s\\ndisparate application.” Mayfield, 529 F.3d at 614; see also Newby v.\\nQuarterman, 325 F. App’x 345, 350 (5th Cir. 2009) (distinguishing Adkins and\\nholding that “total lack of approved Buddhist volunteers” and the resulting\\n“preclu[sion of] members of the Buddhist faith . . . from meeting” reflected a\\nsubstantial burden caused by the State under RLUIPA).\\n Second, in finding that the TDCJ did not cause the substantial burden\\nsuffered by YEA adherents, Adkins gave significant weight to the fact that two\\n\\n\\n 3 The TDCJ argues for the first time in its reply brief that the district court made clear\\nerrors of fact, but this court does not consider arguments first raised in a reply brief. See\\nUnited States v. Prince, 868 F.2d 1379, 1386 (5th Cir. 1989).\\n 62\\n\\n Case: 14-20249 Document: 00515020007 Page: 63 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nadditional individuals would soon become volunteers, providing a significant\\naddition of volunteers for the small group of 25 to 30 YEA prisoners at issue in\\nthat case. See 393 F.3d at 571. The district court’s findings indicate no such\\nalleviation will ever occur for Muslim inmates. Contrary to Adkins, there is\\nevidently no hope here for future additional Muslim volunteers, because (1)\\n“[a] large number of Muslim inmates are assigned to units that are located\\npredominately in remote areas of the state where few Muslim civilians reside”\\nto serve as volunteers, (2) the Muslim practice of “Jum’ah . . . must occur\\nshortly after midday on Fridays, a day when potential volunteers are at work\\nand unable to travel to prison units to participate” whereas “Protestant\\nservices are commonly held on weekends,” and (3) unlike the 25 to 30 YEA\\nadherents in Adkins, for whom an additional two volunteers would make a\\nmeaningful impact, “approximately 6,775 inmates have expressed a religious\\npreference for the Muslim group” in Texas prisons.\\n Accordingly, the majority’s conclusion that the TDCJ did not cause the\\nsubstantial burden imposed on Muslim inmates is incorrect, and its reliance\\non Adkins to reach that conclusion is misplaced, as Adkins is distinguishable.\\nThe district court correctly found that the Scott Plan imposed a substantial\\nburden on Muslim inmates’ religious exercise, and I would affirm that finding.\\n B\\n Because the majority finds that TDCJ did not cause the substantial\\nburden on Muslim inmates’ religious freedom, it finds no continuing RLUIPA\\nviolation and does not reach RLUIPA’s other elements or the PLRA’s\\nrequirements for continuing the consent decree. As discussed, I would affirm\\nthe district court’s finding that the TDCJ created a substantial burden on\\nMuslim inmates through application of the Scott Plan. I will therefore analyze\\nRLUIPA’s additional requirements that the substantial burden is in\\n 63\\n\\n Case: 14-20249 Document: 00515020007 Page: 64 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nfurtherance of a compelling governmental interest and is the least restrictive\\nmeans of furthering that interest. See 42 U.S.C. § 2000cc-1. The Scott Plan\\nviolates RLUIPA if the TDCJ fails to meet either prong. And if an RLUIPA\\nviolation is found, the PLRA’s remaining requirements must be analyzed as\\nthey apply to the consent decree—whether the decree extends no further than\\nnecessary to correct the RLUIPA violation and is narrowly drawn and the least\\nintrusive means to correct that violation. See 18 U.S.C. § 3626(b)(2)-(3). The\\ndistrict court found that (1) the TDCJ failed to demonstrate that the Scott Plan\\nserves a compelling governmental interest or is the least restrictive means for\\nfurthering that interest; and (2) the remaining requirements of a PLRA for\\ncontinuing the consent decree were met. Because the district court was correct\\non both fronts, I would affirm.\\n 1\\n In order to escape an RLUIPA violation once a substantial burden has\\nbeen established, the TDCJ must show the Scott Plan “is in furtherance of a\\ncompelling governmental interest” and “is the least restrictive means of\\nfurthering that compelling governmental interest.” 42 U.S.C. § 2000cc-1(a)(1)–\\n(2). The TDCJ did not meet either requirement.\\n As for the first requirement, instead of articulating a specific compelling\\ninterest, the TDCJ argues that, as a matter of law and based on security\\nconcerns, the direct-supervision policy advances a compelling governmental\\ninterest. Such generalized assertions fail to meet the fact-specific and\\nindividualized inquiry required by RLUIPA. See Tagore v. United States, 735\\nF.3d 324 (5th Cir. 2013) 4 (substantial burden analysis in “RFRA requires the\\n\\n\\n\\n 4 The fact that Tagore is a RFRA rather than RLUIPA case renders it no less\\napplicable here. See Cutter v. Wilkinson, 544 U.S. 709, 717 (2005) (“Congress carried over\\n 64\\n\\n Case: 14-20249 Document: 00515020007 Page: 65 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\ngovernment to explain how applying the [burdensome policy at issue] ‘to the\\nperson’ whose sincere exercise of religion is being seriously impaired furthers\\nthe compelling governmental interest”); see also McAllen Grace Brethren\\nChurch v. Salazar, 764 F.3d 465, 475 (5th Cir. 2014) (“[T]he governmental\\ninterest cannot be ‘couched in very broad terms’ but must be ‘focused’ on the\\nparticular claimant whose interest is substantially burdened.”). Citing to\\ntestimony that Muslim inmates and chaplains were not aware of serious\\ndisciplinary incidents, as well as the fact that “[t]here are no written\\ndisciplinary reports of incidents involving indirectly supervised or inmate-led\\nMuslim religious services,” the district court specifically found there was no\\nevidence that inmate-led religious services posed a security risk. The district\\ncourt found that indirectly-supervised Muslim religious services posed no\\nsafety concerns. These fact findings are unchallenged on appeal and are\\nconclusive that, as the district court found, “the TDCJ administrator’s\\ncontention that the presence of an outside volunteer furthers its compelling\\nstate interest in prison security is unfounded and contradicted by the\\nevidence.” The TDCJ, then, fails to meet the first requirement that the Scott\\nPlan furthers a compelling government interest. See 42 U.S.C. § 2000cc-\\n1(a)(1).\\n TDCJ also fails to meet the second requirement. Even assuming some\\nbroad compelling interest in safety and security, the Scott Plan is clearly not\\nthe least restrictive means to furthering any such interest. See 42 U.S.C. §\\n2000cc-1(a)(2). Taking the district court’s findings at face value, as we must,\\nless restrictive means exist. For example, simply allowing Muslim inmates to\\n\\n\\n\\nfrom RFRA [to RLUIPA] the ‘compelling governmental interest’/‘least restrictive means’\\nstandard.”); Longoria v. Dretke, 507 F.3d 898, 904 (5th Cir. 2007).\\n 65\\n\\n Case: 14-20249 Document: 00515020007 Page: 66 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\ncontinue holding inmate-led services is clearly sufficient to further the\\ngovernment’s interest. As the district court pointed out, “TDCJ’s experience\\nduring the thirty-five years of inmate-led services demonstrates that less\\nrestrictive means are available and that they fulfill TDCJ’s security concerns\\nwhile not burdening the Muslim inmates’ exercise of their religious practices.”\\nThe TDCJ, therefore, has failed to establish that the Scott Plan is the least\\nrestrictive means of furthering its interest. See 42 U.S.C. § 2000cc-1(a)(2).\\n 2\\n The PLRA’s requirements for continuing the consent decree are also met.\\nThe PLRA mandates that the consent decree remain in place if it (1) “remains\\nnecessary to correct a current and ongoing violation of the Federal right,” (2)\\n“extends no further than necessary to correct the violation of the Federal\\nright,” and (3) “is narrowly drawn and the least intrusive means to correct the\\nviolation.” 18 U.S.C. § 3626(b)(3). As previously explained, the consent decree\\nremains necessary to correct the ongoing violation of Muslim prisoners’ rights\\nunder RLUIPA, satisfying the first prong. See id. Given that the consent\\ndecree specifically alleviates the burdens imposed on Muslim inmates by\\nprecluding application of a direct-supervision rule to them—the very rule that\\nviolates RLUIPA—the consent decree “extends no further than necessary” and\\n“is narrowly drawn and the least intrusive means.” Id.\\n For these reasons, I would affirm the district court’s continuation of the\\nconsent decree to protect Muslim inmates in Texas from a continuing violation\\nof federal law.\\n III\\n Because, in my view, an ongoing violation of federal law justifies\\nthe district court’s refusal to vacate the entire consent decree as the TDCJ\\nrequested, I would not reach the Establishment Clause and Free Exercise\\n 66\\n\\n Case: 14-20249 Document: 00515020007 Page: 67 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nClause violations. However, I am compelled to note two additional issues with\\nthe opinion. First, Judge Owen’s discussion of the Muslim inmates’\\nEstablishment Clause rights, which failed to garner majority support and is\\ntherefore not binding precedent, would unnecessarily create a circuit split. 5\\nSecond, both Judge Owen’s lone discussion of the Establishment Clause, and,\\non behalf of a majority, her Free Exercise analysis, overstep the bounds of\\nappellate review by retrying the facts of this case de novo despite that the\\ndistrict court’s factual findings go unchallenged on appeal. See Anderson v.\\nCity of Bessemer City, N.C., 470 U.S. 564, 573 (1985) (This court “must\\nconstantly have in mind that [its] function is not to decide factual issues de\\nnovo.” (cleaned up)); United States v. Nieto, 721 F.3d 357, 372 (5th Cir. 2013)\\n(finding that challenges to the district court’s fact-finding were waived for\\nfailure to brief).\\n ***\\n For these reasons, I respectfully dissent.\\n\\n\\n\\n 5 Judge Owen’s opinion applies deference under Turner v. Safley, 482 U.S. 78 (1987)\\nin the context of the Establishment Clause, even though no other circuit has done so in a\\npublished case. See Americans United for Separation of Church & State v. Prison Fellowship\\nMinistries, Inc., 509 F.3d 406, 426 (8th Cir. 2007) (explaining that the Eighth Circuit has\\n“consistently analyzed Establishment claims without mentioning the Turner standard, even\\nwhen applying that standard to Free Exercise claims in the same case”); Maye v. Klee, 915\\nF.3d 1076, 1085 (6th Cir. 2019) (declining to decide whether to apply Turner or analyze under\\nstrict scrutiny because the violation was clear under either standard); Kerr v. Farrey, 95 F.3d\\n472, 480 (7th Cir. 1996) (applying Lemon v. Kurtzman, 403 U.S. 602 (1971) and reversing\\nafter district court applied Turner and found no Establishment Clause violation); see also\\nWilliams v. Lara, 52 S.W.3d 171, 188 (Tex. 2001) (following “an overwhelming majority of . .\\n. courts” in declining to apply Turner to Establishment Clause claims); Scott v. Pierce, No.\\nCV H-09-3991, 2012 WL 12535442, at *3 (S.D. Tex. May 7, 2012) (declining to apply Turner\\nto Establishment Clause claims); Muhammad v. City of N.Y. Dep’t of Corr., 904 F. Supp. 161,\\n195-99 (S.D.N.Y. 1995) (applying Turner to Free Exercise claims but not to Establishment\\nClause claims stemming from the jail’s refusal to provide inmates with Nation of Islam\\nministers and services).\\n\\n 67\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4413473/\", \"author_raw\": \"JAMES L. DENNIS, Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"KING"},"judge2":{"kind":"string","value":"DENNIS"},"judge3":{"kind":"string","value":"OWEN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":3,"string":"3"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":1,"string":"1"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4636220/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Bobby R. BROWN, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellee, William E. Scott, Intervenor Plaintiff-Appellee, Tyrone Day; Kenneth Hickman ; R. Wayne Johnson ; Torrance Flemings; Kenneth Pryor; Julian A. Randall; Lonnie Dean Collins; Lamont Edward Wilson, Intervenor Plaintiffs-Appellees, v. Bryan COLLIER, Executive Director of the Texas Department of Criminal Justice, Defendant-Appellant. Bobby R. Brown, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellee, Tyrone Day; Kenneth Hickman ; R. Wayne Johnson ; Torrance Flemings; Kenneth Pryor; Julian A. Randall; Lonnie Dean Collins; Lamont Edward Wilson, Intervenor Plaintiffs-Appellees, v. Bryan Collier, Executive Director of the Texas Department of Criminal Justice, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-02\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nCase: 14-20249 Document: 00515020007 Page: 1 Date Filed: 07/02/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n July 2, 2019\n No. 14-20249\n Lyle W. Cayce\n Clerk\nBOBBY R. BROWN, individually and on behalf of all others similarly\nsituated,\n\n Plaintiff—Appellee,\n\nWILLIAM E. SCOTT,\n\n Intervenor Plaintiff—Appellee,\n\nTYRONE DAY; KENNETH HICKMAN; R. WAYNE JOHNSON; TORRANCE\nFLEMINGS; KENNETH PRYOR; JULIAN A. RANDALL; LONNIE DEAN\nCOLLINS; LAMONT EDWARD WILSON,\n\n Intervenor Plaintiffs—Appellees,\nv.\n\nBRYAN COLLIER, Executive Director of the Texas Department of Criminal\nJustice,\n\n Defendant—Appellant.\n\n**********************************************************\nconsolidated with 14-20444\n\nBOBBY R. BROWN, individually and on behalf of all others similarly\nsituated,\n\n Plaintiff—Appellee,\n\nTYRONE DAY; KENNETH HICKMAN; R. WAYNE JOHNSON; TORRANCE\nFLEMINGS; KENNETH PRYOR; JULIAN A. RANDALL; LONNIE DEAN\nCOLLINS; LAMONT EDWARD WILSON,\n\n Intervenor Plaintiffs—Appellees,\n\n Case: 14-20249 Document: 00515020007 Page: 2 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\n\nv.\n\nBRYAN COLLIER, Executive Director of the Texas Department of Criminal\nJustice,\n\n Defendant—Appellant.\n\n\n\n\n Appeals from the United States District Court\n for the Southern District of Texas\n\n\nBefore KING, DENNIS, and OWEN, Circuit Judges.\nPRISCILLA R. OWEN, Circuit Judge, joined by KING, Circuit Judge, in Parts\nI, II, III, IV, V and VII:\n\n Pursuant to a provision of the Prison Litigation Reform Act (PLRA), 1 the\nTexas Department of Criminal Justice (TDCJ) seeks to terminate a consent\ndecree entered in 1977, which exempts Muslim inmates from the requirement\nthat all religious gatherings and activities in Texas state prisons attended by\nmore than four inmates must be directly supervised by either prison staff or a\nprison-approved outside volunteer. The district court denied the motion in\npart, concluding that a portion of the consent decree remains necessary to\ncorrect current and ongoing violations of the Religious Land Use and\nInstitutionalized Persons Act (RLUIPA), 2 the Free Exercise Clause of the First\nAmendment, and the Establishment Clause of the First Amendment. We\nreverse and terminate the 1977 consent decree.\n\n\n\n 1 18 U.S.C. § 3626(b).\n 2 42 U.S.C. § 2000cc, et seq.\n 2\n\n Case: 14-20249 Document: 00515020007 Page: 3 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\n I\n More than forty years ago, Bobby Brown (Brown), a Muslim, initiated a\nclass action against the executive director of TDCJ that resulted in the 1977\nconsent decree. That decree required TDCJ to make an exception for Muslim\ninmates to a policy that otherwise applied to those attending religious\nactivities. TDCJ’s rules and policies have required religious worship services\nor study gatherings attended by more than four inmates to be “directly”\nsupervised by either prison staff, which would include a chaplain employed by\nTDCJ, or a prison-approved outside volunteer. 3 Direct supervision means that\neither a TDCJ employee or a qualified volunteer is in the room during the\nreligious activities at all times and is supervising only those activities, with no\nresponsibility for supervising other areas of the prison or other inmates until\nthe activities have concluded. 4 However, when a volunteer is supervising or\nleading the religious gathering, a TDCJ officer “will be roving the hallways\nchecking on the offenders, checking on the volunteers.” 5 If an officer is not\navailable, the service or activity will be cancelled, even if a volunteer is\nscheduled to be present. 6\n The 1977 consent decree afforded Muslim inmates the right to\nparticipate in group religious services and studies that were “indirectly”\nsupervised if no prison staff member or outside volunteer was available for\ndirect supervision. 7 Indirect supervision means that a prison staff member is\nin the vicinity and observes the religious gathering intermittently, through\nwindows or by the use of audio or video equipment, but does not remain present\n\n\n 3 Brown v. Livingston, 17 F. Supp. 3d 616, 619 (S.D. Tex. 2014).\n 4 ROA 1432.\n 5 ROA 2488-89.\n 6 ROA 2489.\n 7 See Brown, 17 F. Supp. 3d at 620.\n\n 3\n\n Case: 14-20249 Document: 00515020007 Page: 4 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nin the room or area where the activity is occurring. 8 The consent decree also\nprovided that adherents to the Religion of Islam must be allowed “equal time\nfor worship services and other religious activities each week as is enjoyed by\nadherents to the Catholic, Jewish and Protestant faiths,” and the decree said\nthat TDCJ must “specifically, allow adherents to the Religion of Islam at least\ntwo (2) full hours of time for worship services or other religious activities each\nweek, rather than the one (1) hour previously permitted.” 9 In the present\nproceedings, the district court found that from 1977 until January 1, 2013,\nMuslim, Jewish, Catholic, Protestant, and Native American inmates could\nengage in an average of six hours of religious activities each week at units in\nwhich members of each of these faith groups were housed. 10\n However, members of other faiths were not permitted to gather as\nfrequently due to the lack of civilian volunteers. William Scott, a Jehovah’s\nWitness, sued the director of TDCJ in federal district court in 2009, seeking an\ninjunction ordering prison officials to allow him and other members of the\nJehovah’s Witness faith to meet without volunteers, just as Muslims were\npermitted to do as a result of the consent decree. The district court’s 2012\nopinion and order in the Scott suit reflected that there were 217 offender faith\npreferences represented in the TDCJ system, and 59 designated faith groups\nat the Huntsville Unit, where Scott had been confined for a period of time. 11\nTDCJ asserted that it did not have sufficient staff to provide adequate\nsupervision of all offender faith groups if they were allowed to meet without\n\n\n\n\n 8Id. at 621.\n 9ROA 40.\n 10 Brown, 17 F. Supp. 3d at 621.\n 11 Scott v. Pierce, No. 4:09-CV-3991, 2012 WL 12535442, at *1 (S.D. Tex. May 7, 2012)\n\n(unpublished).\n 4\n\n Case: 14-20249 Document: 00515020007 Page: 5 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nvolunteers present. 12 The district court held in Scott that the Establishment\nClause requires “denominational neutrality,” its “prohibition against\npreferential treatment of religion is ‘absolute,’” and that Muslim inmates “are\npreferred to Jehovah’s Witnesses with respect to the volunteer policy.” 13 The\ncourt concluded “[i]f alternative means exist to treat Muslim and Jehovah’s\nWitness prisoners without favoritism, then the Establishment Clause\ndemands them.” 14 The district court concluded that injunctive relief based on\nthe Establishment Clause violation was warranted but did not enter an\ninjunction at that time. It instead ordered the Executive Director of TDCJ “to\npropose a method of compliance” within sixty days. 15 The district court’s\nopinion in Scott observed that “if Muslims regularly engage in communal\nworship without an approved religious volunteer present, evidence exists that\nthe government’s rule against Jehovah’s Witnesses’ meetings is not ‘closely\nfitted’ to the government’s compelling interest in enforcing the [Brown] consent\ndecree.” 16\n In the Scott litigation, Scott had also requested injunctive relief under\nRLUIPA. The district denied that request, reasoning that “the accommodation\nof an offender’s religious or spiritual needs does not outweigh a prison’s need\nto maintain order and safety,” 17 that “due deference” is to be given to prison\nadministrators regarding “good order, security and discipline, consistent with\nconsideration of costs and limited resources,” and “that a rational connection\n\n\n\n\n 12 Id. at *2.\n 13 Id. at *3.\n 14 Id. at *8.\n 15 Id. at *5.\n 16 Id. at *4.\n 17 Id. at *6.\n\n 5\n\n Case: 14-20249 Document: 00515020007 Page: 6 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nexists between” requiring directly supervised religious gatherings “and the\ngovernment’s legitimate interest in prison security.” 18\n TDCJ responded to the district court’s decision in Scott by promulgating\nAdministrative Directive AD-07.30 (rev. 7) (June 30, 2014), which the parties\nrefer to as the “Scott Plan.” Under the Scott Plan, all religious gatherings of\nmore than four inmates require direct supervision, including worship and\nstudies by more than four Muslim inmates. 19 The Scott Plan conflicts with the\n1977 consent decree that permitted Muslim inmates to congregate with only\nindirect supervision. Under the Scott Plan, each religious group is permitted\nto have a group worship service for one hour per week that is directly\nsupervised by prison staff. Additional group religious activities are permitted\nif supervised by an outside, authorized volunteer. 20\n In the present case, and as a result of the district court’s conclusion in\nthe Scott case that TDCJ had violated the Establishment clause by preferring\nadherents to the Religion of Islam over the Jehovah’s Witness faith group,\nTDCJ moved to terminate the 1977 Brown consent decree pursuant to the\nPLRA. 21 The PLRA provides that “in any civil action with respect to prison\nconditions in which prospective relief is ordered, such relief shall be terminable\nupon the motion of any party or intervenor,” if the order has been in effect for\na certain period of time, unless “the court makes written findings based on the\nrecord that prospective relief remains necessary to correct a current and\nongoing violation of the Federal right, extends no further than necessary to\n\n\n\n\n 18 Id. at *6.\n 19 Brown v. Livingston, 17 F. Supp. 3d 616, 619 (S.D. Tex. 2014).\n 20 Id. at 623; see ROA 3080, 3284-85, 4105.\n 21 ROA 72-82.\n\n 6\n\n Case: 14-20249 Document: 00515020007 Page: 7 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\ncorrect the violation of the Federal right, and that the prospective relief is\nnarrowly drawn and the least intrusive means to correct the violation.” 22\n Pursuant to provisions of the PLRA, TDCJ’s motion operated as an\nautomatic stay of the 1977 Brown consent decree, 23 allowing TDCJ to\nimplement the Scott Plan pending further proceedings in the district court.\nAccordingly, the direct supervision requirement for all religious groups in\nTDCJ prisons, including members of the Religion of Islam, went into effect in\n2013. 24\n After the implementation of the Scott Plan, Muslim inmates may attend\na weekly, one-hour Jumu’ah service directly supervised by TDCJ chaplains or\nemployees, but opportunities for Muslim prisoners to participate in other\ncommunal worship or studies diminished due to a dearth of Muslim volunteers\nfrom outside the prison system. 25 Protestant and Catholic prisoners, by\ncontrast, maintained the ability to engage in group worship or study in\naddition to the one-hour, weekly service directly supervised by TDCJ-\nemployees because of a relative abundance of outside volunteers. 26\n The district court held an evidentiary hearing on TDCJ’s motion to\ndissolve the 1977 decree. That decree had twenty-two specific provisions,\ntwenty of which the district court terminated without objection by any party.\nBut the district concluded that two provisions were necessary to correct current\nand ongoing violations of the federal Constitution and to give effect to statutory\nrights of Muslim inmates, effectively rejecting the Scott Plan as it applies to\n\n\n\n\n 22 18 U.S.C. § 3626(b)(2)-(3).\n 23 Id. § 3626(e).\n 24 ROA 3077.\n 25 ROA 1951, 1953.\n 26 ROA 1953.\n\n 7\n\n Case: 14-20249 Document: 00515020007 Page: 8 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nMuslim inmates. 27 One of the two provisions of the 1977 consent decree that\nthe district court refused to dissolve, found in section III(15) of the decree,\nrequired TDCJ officials to “[a]llow adherents to the Religion of Islam at each\nunit of the Texas Department of Corrections equal time for worship services\nand other religious activities each week as is enjoyed by adherents to the\nCatholic, Protestant and Jewish faiths.” 28 The other provision that the district\ncourt ordered be left intact is found in section III(8) of the consent decree, which\nrequired TDCJ officials to permit inmates professing adherence to the Religion\nof Islam to congregate for worship, study, and other religious functions and\nactivities under the supervision of an inmate leader whenever an ordained\nIslamic minister is unavailable at a regularly scheduled time for worship and\nstudy. 29\n The district court focused on three required practices of the Islamic\nfaith—Jumu’ah, Taleem, and Qur’anic studies—that necessitate group\ngathering. 30 The district court concluded that the one hour of direct\nsupervision per week allotted to the roughly 6,775 Muslim inmates in Texas\nstate prisons by TDCJ staff under the Scott Plan is not enough time to meet\nthe requirements of Jumu’ah, Taleem, and Qur’anic studies, 31 and that the\nnumber of Muslim chaplains employed by the TDCJ, and of available Muslim\nvolunteers, is insufficient to provide adequate group study and worship. 32 The\ndistrict court found that by contrast, Christian inmates are able to attend an\naverage of six hours of religious gatherings per week, due to the large number\n\n\n\n 27 See ROA 1979-80.\n 28 ROA 40\n 29 ROA 36-37.\n 30 ROA 1956-58.\n 31 ROA 1951, 1958.\n 32 ROA 1951, 1958.\n\n 8\n\n Case: 14-20249 Document: 00515020007 Page: 9 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nof Christian volunteers available to supervise such assemblages directly. 33 The\ncourt concluded that “Jewish inmates are specifically assigned to units” that\nare in closer proximity to prospective volunteers, and Native American\ninmates are assigned to a specifically designated unit to facilitate access to one\nanother and to enhance Native American religious activities. 34 The TDCJ has\nnot assigned Muslim prisoners to specifically designated units. 35\n The district court held that the Scott Plan and its direct supervision\nrequirement result in violations of three different federal rights. Specifically,\nthe district court held that the Scott Plan (1) unjustifiably imposes a\nsubstantial burden on Muslim inmates’ religious exercise, thereby violating\nRLUIPA; 36 (2) restricts Islamic religious exercise in violation of the Free\nExercise Clause of the First Amendment; 37 and (3) disfavors Islam and favors\nother faiths, violating the Establishment Clause of the First Amendment. 38\nSubsequently, the district court awarded attorneys’ fees in favor of Brown and\na group of Muslim inmates who intervened in the case (the Inmate Intervenors)\nas prevailing parties. 39\n The TDCJ appeals both the district court’s denial of its motion to\nterminate the consent decree and the award of attorneys’ fees. A motions panel\nof this court ordered that the district court’s judgment on the merits be stayed\npending appeal. 40\n\n\n 33 ROA 1953.\n 34 ROA 1964-65.\n 35 ROA 1965.\n 36 ROA 1975-77.\n 37 ROA 1970-75.\n 38 ROA 1966-70.\n 39 ROA 2021.\n 40 Brown v. Livingston, No. 14-20249, Doc. No. 32 (5th Cir. May 20, 2014); see also\n\nBrown v. Livingston, No. 14-20249, Doc. No. 61 (5th Cir. June 5, 2014) (denying\nreconsideration).\n 9\n\n Case: 14-20249 Document: 00515020007 Page: 10 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\n II\n We have held that “[t]he application of the relevant sections of the PLRA\nrequires the district court to make a finding of an ongoing constitutional\nviolation, which is a mixed question of law and fact,” 41 and that “[w]e review\nmixed questions of law and fact de novo.” 42 with the definite and firm\nconviction that a mistake has been committed.’” 43\n III\n “The PLRA strongly disfavors continuing relief through the federal\ncourts; indeed, its fundamental purpose was to extricate them from managing\nstate prisons.” 44 As noted above, prospective relief like the consent decree at\nissue in this case must be terminated on the motion of any party unless such\nrelief “remains necessary to correct a current and ongoing violation of the\nFederal right, extends no further than necessary to correct the violation of the\nFederal right, and . . . is narrowly drawn and the least intrusive means to\ncorrect the violation.” 45 The 1977 consent decree applies to the entire TDCJ\nprison system and “terminates unless the district court makes [the requisite]\n\n\n\n\n 41 Castillo v. Cameron Cty., 238 F.3d 339, 347 (5th Cir.2001) (citing Inmates of Suffolk\nCty. Jail v. Rouse, 129 F.3d 649, 661 (1st Cir. 1997)); see also Ruiz v. United States, 243 F.3d\n941, 950 (5th Cir. 2001).\n 42 Castillo, 238 F.3d at 347 (citing Cargill, Inc. v. United States, 173 F.3d 323, 333 n.13\n\n(5th Cir. 1999)).\n 43 Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (quoting United States\n\nv. United States Gypsum Co., 333 U.S. 364, 395 (1948)) (alteration in original); id. at 573-74\n(“If the district court's account of the evidence is plausible in light of the record viewed in its\nentirety, the court of appeals may not reverse it even though convinced that had it been\nsitting as the trier of fact, it would have weighed the evidence differently. Where there are\ntwo permissible views of the evidence, the factfinder's choice between them cannot be clearly\nerroneous.”).\n 44 Guajardo v. Tex. Dep’t of Criminal Justice, 363 F.3d 392, 394 (5th Cir. 2004) (per\n\ncuriam) (citation and internal quotation marks omitted).\n 45 18 U.S.C. § 3626(b)(2)-(3).\n\n 10\n\n Case: 14-20249 Document: 00515020007 Page: 11 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nfindings” and “also finds ongoing, system-wide violations.” 46 We have held that\n“the burden of proof to support these findings is obviously on the party\nopposing termination.” 47\n The district court found violations of RLUIPA, the Free Exercise Clause,\nand the Establishment Clause. It is important to bear in mind in our analysis\nthat our focus ultimately remains on the PLRA. No inmate has brought a free-\nstanding claim that he is entitled to injunctive relief under RLUIPA or the\nConstitution.\n The relief granted by the district court was not limited to continuing the\n1977 Consent Decree in effect. The PLRA does not authorize the district court\nto expand the consent decree. The district court erred in doing so. The\nremaining inquiry under the PLRA is whether there is an ongoing violation of\na federal right.\n IV\n We first consider RLUIPA. It states, in relevant part:\n No government shall impose a substantial burden on the\n religious exercise of a person residing in or confined to an\n institution, as defined in section 1997 of this title, even if the\n burden results from a rule of general applicability, unless the\n government demonstrates that imposition of the burden on that\n person—\n (1) is in furtherance of a compelling governmental interest;\n and\n (2) is the least restrictive means of furthering that\n compelling governmental interest. 48\n\n\n\n\n 46 Guajardo, 363 F.3d at 395.\n 47 Id. at 396.\n 48 42 U.S.C. § 2000cc-1(a).\n\n 11\n\n Case: 14-20249 Document: 00515020007 Page: 12 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nRLUIPA prevents government practices that substantially burden the\nreligious exercise of an inmate unless the practice furthers a compelling\ngovernmental interest and is the least restrictive means of doing so.\n Initially, “it falls to the plaintiff to demonstrate that the government\npractice complained of imposes a ‘substantial burden’ on his religious\nexercise.” 49 To demonstrate a substantial burden, “the plaintiff must show\nthat the challenged action ‘truly pressures the adherent to significantly modify\nhis religious behavior and significantly violate his religious beliefs.’” 50 If the\ninmate makes this showing, the burden shifts to the government “to show that\nits action or policy is the least restrictive means of furthering a compelling\ninterest.” 51 In making this assessment, we must give “due deference to the\nexperience and expertise of prison and jail administrators in establishing\nnecessary regulations and procedures to maintain good order, security and\ndiscipline, consistent with consideration of costs and limited resources.” 52\nHowever, the Supreme Court has made clear that even when prison\nregulations are at issue, “RLUIPA requires [courts] to ‘scrutiniz[e] the asserted\nharm of granting specific exemptions to particular religious claimants’ and ‘to\nlook to the marginal interest in enforcing’ the challenged government action in\nthat particular context.” 53\n The district court held that (1) Muslim prisoners’ religious exercise is\n“substantially burdened” by the Scott Plan’s direct supervision requirement\n\n\n\n\n 49 Adkins v. Kaspar, 393 F.3d 559, 567 (5th Cir. 2004) (citing 42 U.S.C. § 2000cc-2).\n 50 Garner v. Kennedy, 713 F.3d 237, 241 (5th Cir. 2013) (quoting Adkins, 393 F.3d at\n570).\n 51 Chance v. Tex. Dep't of Criminal Justice, 730 F.3d 404, 410 (5th Cir. 2013).\n 52 Id. (quoting Cutter v. Wilkinson, 544 U.S. 709, 723 (2005)).\n 53 Holt v. Hobbs, 135 S.Ct. 853, 863 (2015) (quoting Burwell v. Hobby Lobby Stores,\n\nInc., 573 U.S. 682, 726-27 (2014)).\n 12\n\n Case: 14-20249 Document: 00515020007 Page: 13 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nbecause it causes them to forgo group religious practices that they sincerely\nbelieve are required by their faith, 54 (2) the State has failed to prove that the\npolicy’s application to Muslim prisoners actually advances prison security or\nany other “compelling governmental interest,” 55 and (3) even if direct\nsupervision does advance a compelling interest, it is not the least restrictive\nmeans of doing so. 56 Brown, the Inmate Intervenors, and several amici\ncontend on appeal that the Scott Plan’s direct supervision requirement imposes\na substantial burden because it limits Muslim inmates to one hour of group\nreligious services per week, which, they assert, is insufficient time to complete\nweekly Jumu’ah, Taleem, and Qur’anic studies as required by their religious\nbeliefs. They also assert that permitting indirect supervision of these services\ndoes not raise security issues and that TDCJ could provide direct supervision\nat little additional cost.\n TDCJ contends that it is not the direct supervision policy that limits\nopportunities for Muslim inmates to participate in Taleem and Qur’an Studies\nbut instead, it is a lack of volunteers to supplement the teaching and worship\nopportunities supervised by TDCJ Muslim chaplains and TDCJ staff.\nPrecedent from this court supports such a conclusion. TDCJ’s policy allows\nMuslim volunteers to conduct services and studies for and with inmates. But,\nas the district court expressly found, “despite specific and concerted efforts over\nthe past years to recruit volunteers to participate in Muslim religious activities\nat the prison, TDCJ has been unsuccessful in securing a significant number of\nMuslim religious volunteers.” 57\n\n\n\n 54 ROA 1975-76.\n 55 ROA 1976-77.\n 56 ROA 1977.\n 57 ROA 1953.\n\n 13\n\n Case: 14-20249 Document: 00515020007 Page: 14 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\n This court has considered several challenges under RLUIPA to TDCJ’s\npolicy that religious worship and study when more than four inmates are\ninvolved must be directly supervised by a TDCJ employee or a TDCJ-approved\nvolunteer. 58 In Adkins v. Kaspar, the plaintiff was a member of the Yahweh\nEvangelical Assembly (YEA). 59 Like the Muslim inmates in the present case,\nhe complained that the direct supervision requirement, together with a\nshortage of outside YEA volunteers, deprived him of adequate opportunities\nfor group religious practice. 60 This court held that the lack of opportunity for\ngroup religious practice resulted “not from some rule or regulation that directly\nprohibits such gatherings” but instead “from a dearth of qualified outside\nvolunteers available to go to [the prison].” 61 We concluded in Adkins that the\nTDCJ’s policies had not imposed a substantial burden on the plaintiff. 62\n Subsequently, in Baranowski v. Hart, an inmate had protested the\nrecurring failure of one of the TDCJ’s prisons to allow for group religious\nservices on Jewish holy days. 63 This court took note of the fact that on each of\nthe days on which religious services were not held, “no rabbi or approved\nreligious volunteer was available to lead the services.” 64 As in Adkins, the\ncourt held that the lack of volunteers, and not the direct supervision\nrequirement, caused the religious gatherings to be infrequent, such that “the\nacts of Defendants regarding religious services have not placed a substantial\n\n\n\n 58 See, e.g., Mayfield v. Tex. Dep’t Crim. Justice, 529 F.3d 599 (5th Cir. 2008);\nBaranowski v. Hart, 486 F.3d 112 (5th Cir. 2007); Adkins v. Kaspar, 393 F.3d 559, 571 (5th\nCir. 2004).\n 59 393 F.3d at 562.\n 60 Id. at 562, 571.\n 61 Id. at 571.\n 62 Id.\n 63 486 F.3d at 124-25.\n 64 Id. at 124.\n\n 14\n\n Case: 14-20249 Document: 00515020007 Page: 15 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nburden on Baranowski’s free exercise of his Jewish faith, within the\ncontemplation of RLUIPA.” 65\n These decisions did not adopt a per se rule. We said in Adkins that\n“whether the government action or regulation in question imposes a\nsubstantial burden on an adherent's religious exercise” “requires a case-by-\ncase, fact-specific inquiry.” 66 In Mayfield v. Texas Department of Criminal\nJustice, 67 an Odinist submitted affidavits averring that group worship\nmeetings known as Blotar should be conducted on a monthly basis at a\nminimum. 68 There was evidence that outside volunteers came only once every\n18 months to conduct Blotar, and Odinists inmates were “unable to conduct\nBlotar on a regular basis because the TDCJ requires that they have a security-\ntrained, religious volunteer present for their group meeting.” 69 But there was\nalso evidence in Mayfield that the volunteer policy was not imposed uniformly\nbecause an exception was made for Muslim inmates in order to comply with\nthe consent decree that is at issue in the case now before us. 70 Pertinent to our\nanalysis in the present case, we said in Mayfield that “[b]ecause the volunteer\npolicy was implemented uniformly in the Adkins case, it was not the policy\nimposing the burden on Adkins’ religious practice, but instead the lack of\nqualified volunteers.” 71\n\n\n\n\n 65 Id. at 125 (citing Adkins, 393 F.3d at 571); see also Odneal v. Pierce, 324 F. App’x\n297, 302 (5th Cir. 2009) (unpublished) (affirming grant of summary judgment because “the\ninfrequency of Native American services at the McConnell Unit is due to a dearth of outside\nvolunteers rather than any regulation directly prohibiting these ceremonies”).\n 66 393 F.3d at 571.\n 67 529 F.3d 599 (5th Cir. 2008).\n 68 Id. at 602.\n 69 Id.\n 70 Id. at 608.\n 71 Id. at 614.\n\n 15\n\n Case: 14-20249 Document: 00515020007 Page: 16 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\n The present case differs materially from Mayfield because in the case\nbefore us, there is no evidence that “calls into question the uniformity of the\npolicy’s application.” 72 The direct supervision requirement under the Scott\nPlan has been imposed uniformly, as it was in Adkins. Accordingly, applying\nour precedent as we are bound to do, it is not the Scott Plan that has imposed\na burden on Muslim inmates’ religious exercise. It is the lack of volunteers\nwho adhere to the faith of Islam.\n V\n The district court also held that the Consent Decree remains necessary\nto remedy ongoing violations of the Free Exercise Clause. 73 The district court\nrecognized that “the Fifth Circuit Court of Appeals has upheld TDCJ’s\nvolunteer policy,” citing Baranowski, Adkins, and an unpublished opinion, 74\nbut concluded that we had done so “on a record very different from the ones in\nthe present case.” 75 We disagree with the district court’s conclusions in that\nregard.\n The district court did not discuss or cite the Supreme Court’s decision in\nO’Lone v. Estate of Shabazz, 76 in which Muslim inmates brought challenges\nbased on the Free Exercise clause to “policies adopted by prison officials which\nresulted in their inability to attend Jumu’ah, a weekly Muslim congregational\nservice regularly held in the main building” of the prison on Fridays. 77 The\nprison officials in O’Lone refused to exempt Muslim inmates from working\n\n\n\n\n 72 Id.\n 73 Brown v. Livingston, 17 F. Supp. 3d 616, 632-33 (S.D. Tex. 2014).\n 74 Id. (citing Baranowski v. Hart, 486 F.3d 112 (5th Cir. 2007); Adkins v. Kaspar, 393\n\nF.3d 559 (5th Cir. 2004); and Odneal v. Pierce, 324 Fed. App’x 297 (5th Cir. 2009)).\n 75 Id.\n 76 482 U.S. 342 (1987).\n 77 Id. at 345.\n\n 16\n\n Case: 14-20249 Document: 00515020007 Page: 17 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\noutside the main building on Friday afternoons, and therefore, they were\nunable to attend Jumu’ah. The Supreme Court held that this “did not violate\nrespondents’ rights under the Free Exercise Clause of the First Amendment.” 78\nThe Supreme Court applied the standard of review set forth in Turner v.\nSafley, 79 ultimately concluding that “[w]e take this opportunity to reaffirm our\nrefusal, even where claims are made under the First Amendment, to\n‘substitute our judgment on . . . difficult and sensitive matters of institutional\nadministration . . . for the determinations of those charged with the formidable\ntask of running a prison.” 80\n Under Turner, we consider:\n (1) whether a “valid, rational connection exists between the prison\n regulation and the legitimate governmental interest put forward\n to justify it,” (2) whether there exist “alternative means of\n exercising the fundamental right that remain open to prison\n inmates,” (3) what “impact accommodation of the asserted\n constitutional right will have on guards and other inmates, and on\n the allocation of prison resources generally,” and (4) whether there\n is an “absence of ready alternatives” to the regulation in\n question. 81\nApplying these factors to the case presently before us, we cannot agree with\nthe district court that the TDCJ’s direct supervision requirement fails Turner’s\nrationality review and violates the Free Exercise clause.\n A\n The Supreme Court explained in Turner that in analyzing whether there\nis a “‘valid, rational connection’ between the prison regulation and the\n\n\n\n 78 Id.\n 79 482 U.S. 78 (1987).\n 80 O’Lone, 482 U.S. at 353.\n 81 Adkins v. Kaspar, 393 F.3d 559, 564 (5th Cir. 2004) (alteration omitted) (quoting\n\nTurner, 482 U.S. at 89-90).\n 17\n\n Case: 14-20249 Document: 00515020007 Page: 18 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nlegitimate governmental interest put forward to justify it, . . . the\ngovernmental objective must be a legitimate and neutral one.” 82 The Court\ncontinued, “[w]e have found it important to inquire whether prison regulations\nrestricting inmates' First Amendment rights operated in a neutral fashion,\nwithout regard to the content of the expression.” 83 The Scott Plan is uniform.\nIt applies to all religions, without regard to the what beliefs or principles are\nheld or espoused. 84\n The TDCJ contends that the legitimate government interest at stake in\nimposing the direct supervision requirement is ensuring prison security,\nespecially in light of the TDCJ’s limited resources. It asserts that direct\nsupervision, including that undertaken by volunteers, deters wrongful\nbehavior, and that the direct supervision provided by volunteers differs from\nthat provided by inmates. Volunteers are more likely to report violations than\ninmates. These common-sense justifications are sufficient to establish a\nrational connection between direct supervision and prison security. 85 “[I]t\ncannot seriously be maintained that ‘the logical connection between the\nregulation and the asserted goal is so remote as to render the policy arbitrary\nor irrational.’” 86\n These justifications are also amply supported by the record,\nnotwithstanding the district court’s conclusion that direct supervision of\n\n\n\n 82 Turner, 482 U.S. at 89-90.\n 83 Id. at 90.\n 84 See Mayfield v. Tex. Dep’t of Criminal Justice, 529 F.3d 599, 608 (5th Cir. 2008) (“In\n\nprior cases where we have affirmed summary judgment on similar § 1983 claims, we have\nrelied on the neutrality of the prison’s policy in doing so.”).\n 85 Cf. Jones v. Brown, 461 F.3d 353, 361 (3d Cir. 2006) (“[W]here the connection is\n\nobvious, common sense may suffice[.]”).\n 86 O’Lone v. Estate of Shabazz, 482 U.S. 342, 351 (1987) (quoting Turner v. Safley, 482\n\nU.S. 78, 89-90 (1987)).\n 18\n\n Case: 14-20249 Document: 00515020007 Page: 19 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nMuslim services is not necessary to promote safety. The district court’s focus\nsolely on Muslim services was in error. The question is whether the TDCJ’s\npolicy, which applies to all inmates, not just Muslim inmates, is rationally\nconnected to prison security and safety. There is unrefuted evidence that\nsecurity issues arise during directly supervised worship. It stands to reason\nthat opportunities for disruption or violence would increase if worship services\nwere only indirectly supervised. Though the district court refused to permit\nTDCJ to offer evidence that fights or assaults at services other than Muslim\nservices had occurred, 87 the record nevertheless establishes that direct\nsupervision of inmate religious gatherings of more than four individuals\nfurthers legitimate government interests. The district court’s findings and\nconclusions to the contrary are not supported by the record or common sense.\n It is undisputed that when the consent decree regarding Muslim inmates\nwas in effect, “[a]ll the other faith groups were [directly] supervised,” which\nmeant a chaplain, volunteer or a correctional officer was in the room with the\ninmates, “not just someone roving, walking by, checking on them frequently.” 88\nWhen the consent decree was in effect, TDCJ required direct supervision of the\nmore than 132,000 non-Muslim inmates. Presently, under the Scott Plan,\nTDCJ requires direct supervision of all inmates when worshiping because\notherwise, as a TDCJ employee testified, “we’d have large amounts of offenders\nmeeting without direct supervision, and anything can happen in a prison,”\nsuch as “escape attempts,” “staff assaults,” and “inmate assaults.” 89 The\nevidence is undisputed that offenders with histories of serious criminal conduct\nattend worship services. “Some of these offenders are G4 offenders that have\n\n\n 87 ROA 2699.\n 88 ROA 4079-80.\n 89 ROA 4081.\n\n 19\n\n Case: 14-20249 Document: 00515020007 Page: 20 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nescape histories, they have assault histories, they’re confirmed gang members\neven though they’re out in the offender population, they have a history of staff\nassaults, inmate assaults. You’ve got all these offenders coming into one area\nof the facility to congregate, and anytime you have a large group of offenders\nand even sometimes a small group of offenders, that’s areas that we need to\ndirectly supervise for public safety, for the safety of staff and the safety of the\ninmate population.” 90\n There was testimony that having personnel “in there to respond to that\nwhen something’s happening during a service,” 91 rather than camera\nsurveillance, is necessary because a person in the room is “getting the tone of\nthe service or the cell block and watching the offenders, if they’re grouping up\nor, you know, just how the offenders are acting that particular day,” and\n“[y]ou’re not going to get that through a video surveillance system.” 92\n An expert witness who was formerly a warden in Florida testified that\naltercations occurred during religious services in the units he supervised, some\nof which involved “a serious incident of bodily harm.” 93 This witness also\ntestified that if inmates are leading a service, security is needed, and having a\nperson in the room observing them is the “best form” of security. 94 He also\nconfirmed that “some offenders have custody levels that make them\ndangerous”; when they are present in religious services, it is important to have\nsecurity; and that the “best way” of supervision in those cases is direct\nsupervision. 95 But more broadly, he testified that in light of his experience, a\n\n\n\n 90 ROA 4078.\n 91 ROA 4081.\n 92 ROA 4042.\n 93 ROA 2821.\n 94 ROA 2894.\n 95 ROA 2894-95.\n\n 20\n\n Case: 14-20249 Document: 00515020007 Page: 21 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nsecurity presence in the form of a volunteer or a chaplain observing and\ndirectly supervising the inmates in the service “needs to be there in a religious\nservice to prevent inmates from conducting any disruptive or criminal activity\nin a service.” 96\n A TDCJ Muslim inmate who testified at the hearing confirmed that he\nhas seen “fights break out” at “church services” other than Muslim services,\nand that the prison in which he was incarcerated was “locked down” as a result\nof “fights [that] have taken place in church services.” 97\n There was also unrefuted testimony from TDCJ that “we have a Prison\nRape Elimination Act that we have to come into compliance with. There are\nalmost 50 standards that we’re trying to come into compliance with, and the\nonly way we can come in compliance with that is to make sure that we have\nappropriate supervision of our offender population.” 98 Relatedly, the National\nPrison Rape Elimination Commission Report 6 (June 2009) recommends direct\nsupervision of inmates should be used “wherever possible” “because it is the\nmost effective mode of supervision for preventing sexual abuse and other types\nof violence and disorder.” 99 That Commission made the following finding and\nrecommendation:\n Supervision is the core practice of any correctional agency,\n and it must be carried out in ways that protect individuals from\n sexual abuse. The Commission believes it is possible to meet this\n standard in any facility, regardless of design, through appropriate\n deployment of staff. Direct supervision, which features interaction\n between staff and prisoners, should be used wherever possible\n\n\n\n 96 ROA 2903.\n 97 ROA 2697-98.\n 98 ROA 4078.\n 99 Nat’l Prison Rape Elimination Commission Report, 6 (2009), available at\n\nhttps://www.ncjrs.gov/pdffiles1/226680.pdf.\n 21\n\n Case: 14-20249 Document: 00515020007 Page: 22 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\n because it is the most effective mode of supervision for preventing\n sexual abuse and other types of violence and disorder. 100\n The district court’s own findings reflect that if TDCJ were to permit\nadherents of each faith to gather in groups of more than four with only indirect\nsupervision, security risks would exist. The district court recognized “there is\nevidence that the more serious incidents that occurred at or near religious\nactivities occurred during Catholic and Protestant services even though a\nChaplain, prison guard, or outside volunteer was present.” 101 Yet, the district\ncourt concluded that this was not evidence of a need for direct supervision of\ninmates during religious activities.\n The district court’s conclusion in this regard appears to be based upon a\n“Finding of Fact” that the “practice of permitting inmate-led services, as\ndescribed in the Consent Decree, was the ‘usual’ practice in prison systems.” 102\nThe district court cited the testimony of three witnesses in support of this\nconclusion, but read in context, each witness said that in the wake of the\nConsent Decree in the present case, prisons in some other jurisdictions had\nadopted the provisions of the Consent Decree for Muslim inmates, not for\ninmates of other faiths.\n The district court’s opinion states:\n McAndrew testified that prisons use methods other than direct\n supervision to ensure security at religious meetings, such as roving\n patrols and visual observations through windows. He also testified\n that, in his experience, the practice of permitting inmate-led\n services, as described in the Consent Decree, was the “usual”\n practice in prison systems. 103\n\n\n\n 100 Id.\n 101 Brown v. Livingston, 17 F. Supp. 3d 616, 628 (S.D. Tex. 2014).\n 102 Id.\n 103 Id.\n\n 22\n\n Case: 14-20249 Document: 00515020007 Page: 23 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\n This is incorrect. McAndrew testified that after the consent decree in\nthe present case was entered, an unspecified number of prisons used the\nconsent decree as a model for a policy regarding Muslim inmates and have\nallowed indirectly supervised, inmate-led religious meetings by Muslim\ninmates. 104 McAndrew did not testify that indirect supervision is a “usual”\npractice with regard to any other faith group.\n The district court also relied upon the testimony of a former Chaplain in\nNew York, Ibrahim Ezghair. Ezghair recounted that a state prison system less\nthan half the size of the Texas system had adopted and implemented the terms\nof the consent decree at issue in the present case and had “experienced no\nsecurity or safety threats or events involving inmate-led or indirectly\nsupervised Muslim religious activities.” 105 The district court characterized\nanother Muslim Chaplain’s testimony, that of Chaplain Shabazz, as saying\nthat “many prison systems throughout the United States” permit indirect\nsupervision of inmate-led religious activities by Muslims, and that the witness\nwas “unaware of any safety concerns.” 106 This evidence is not only conclusory\nand lacking in specificity, it is myopically focused on Muslim services. It is not\nevidence that indirect supervision of religious services in prisons as a general\nproposition presents no safety concerns. None of these witnesses testified that\nprisons have permitted or reasonably should permit virtually all worship or\nreligious activities by inmates to occur with only indirect supervision.\n In a letter to this court, the plaintiffs assert that “the Consent Decree\nregime is the model followed by penal institutes throughout the nation.” The\nplaintiffs do not provide any specificity in this regard. They cite to one page in\n\n\n 104 ROA 2792-93.\n 105 Brown, 17 F. Supp. 3d at 627.\n 106 Id.\n\n 23\n\n Case: 14-20249 Document: 00515020007 Page: 24 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nthe district court’s opinion in this case, 107 which in turn relied on conclusory\ntestimony, just discussed above, from two witnesses regarding indirect\nsupervision of Muslim religious gatherings adopted by some prison systems in\nthe wake of the consent decree that is presently at issue. 108 None of that\ntestimony averred that indirect supervision of religious gatherings for inmates\nhas been widely accepted or even that indirect supervision of Muslin inmates,\nadmittedly modeled after the consent decree in the present case, has been\nwidely accepted.\n The plaintiffs’ letter to this court also cites an amicus brief by four\nindividuals who denominate themselves “Former Prison Wardens.” That brief\nrelates those individuals’ own experiences, which amounts to unsworn\ntestimony that is not part of the record in this case and is not subject to cross-\nexamination. In support of the assertion that “monitoring through indirect\nsupervision is a common method of ensuring security for inmate-led worship,”\nthe amicus brief cites regulations in four jurisdictions. 109 The existence of such\npolicies in four states does not establish that the Federal Government, the vast\nmajority of States, or even a bare majority of the States, have such a policy.\n We also know from court decisions around the country that at least\nseventeen other jurisdictions do not permit inmates to gather for religious\nexercise without direct supervision. 110 “‘While not necessarily controlling, the\n\n\n 107 Brown, 17 F. Supp. 3d at 627.\n 108 See Brown, 17 F. Supp. 3d at 627.\n 109 Cal. Code Regs., tit. 15, § 3211(a); 03-201 Me. Code R. Ch. 10, Subs. 24.3, § VI; Kan.\n\nAdmin. Regs. 44-7-113; N.Y. Comp. Codes R. & Regs. tit. 9, § 7024.2.\n 110 See, e.g., Hall v. Sutton, 581 F. App’x 580, 581 (7th Cir. 2014) (Illinois); Turner v.\n\nHamblin, 590 F. App’x 616, 619‑20(7th Cir. 2014) (Wisconsin); Bader v. Wrenn, 675 F.3d 95,\n96 (1st Cir. 2012) (New Hampshire); Hathcock v. Cohen, 287 F. App’x 793, 800‑01 (11th Cir.\n2008) (per curiam) (Florida); McElhaney v. Elo, 202 F.3d 269, 2000 WL 32036, at *4 (6th Cir.\nJan. 6, 2000) (Michigan); Manges v. Harman, No. 3:11‑CV‑369 PPS, 2014 WL 5488457, at\n*10 (N.D. Ind. Oct. 29, 2014); Guess v. McGill, No. 9:13‑cv‑02260‑TLW, 2014 WL 5106735, at\n 24\n\n Case: 14-20249 Document: 00515020007 Page: 25 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\npolicies followed at other well-run institutions would be relevant to a\ndetermination of the need for a particular type of restriction.’” 111\n The amicus brief additionally asserts that an expert witness at the\nhearing, Ron McAndrew, “testified that allowing indirectly supervised, inmate-\nled services was a ‘usual’ practice in other prison systems.” This is misleading.\nMcAndrew testified that after the consent decree in the present case was\nentered, an unspecified number of prisons used the consent decree as a model\nfor a policy regarding Muslim inmates and have allowed indirectly supervised,\ninmate-led religious meetings by Muslim inmates. 112 McAndrew did not testify\nthat this is a “usual” practice with regard to any other faith group.\n The amicus brief also quotes snippets of testimony from another expert\nwitness at the hearing, Alexander Taylor, asserting that he “testified that ‘the\nmost common practice . . . is where the chaplain in the building is able to do\nthat roving type of observation, sitting in as needed . . . .’” But read in its\nentirety, that was not the import of Taylor’s testimony. He said a chaplain\nroving during services “sit[s] in as needed, and sometimes through entire\nservices.” 113 But more importantly, he testified that though such a roving\n\n\n\n*10‑11 (D. S.C. Oct. 10, 2014); Leishman v. Patterson, No. 2:11‑CV‑00309 CW, 2014 WL\n2117543, at *6‑7 (D. Utah May 21, 2014); Vega v. Lantz, No. 3:04CV1215(DFM), 2013 WL\n6191855, at *5, *8 (D. Conn. Nov. 26, 2013); Ericson v. Magnusson, No. 2:12‑cv‑00178‑JAW,\n2013 WL 2634761, at *4 (D. Me. June 12, 2013); Howard v. Wiglesworth, No. 5:10cv163‑RHW,\n2012 WL 3867011, at *5 (S.D. Miss. Sept. 5, 2012); Countryman v. Palmer, No.\n3:11‑cv‑00852‑ECR‑VPC, 2012 WL 4340659, at *5 (D. Nev. Aug. 7, 2012); De’Lonta v.\nJohnson, No. 7:11‑cv‑00175, 2012 WL 2921762, at *2 (W.D. Va. Jul. 17, 2012); Montague v.\nCorr. Corp. of Am., No. 3:10‑cv‑0443, 2011 WL 3476543, at *3 (M.D. Tenn. Aug. 8, 2011);\nJihad v. Fabian, No. 09‑1604 (SRN/LIB), 2011 WL 1641885, at *19 (D. Minn. Feb. 17, 2011);\nStrutton v. Meade, No. 4:05CV02022 ERW, 2010 WL 1253715, at *47 (E.D. Mo. Mar. 31,\n2010); Morrison v. Cook, No. 97‑57‑ST, 1999 WL 717218, at *4‑5 (D. Or. Apr. 27, 1999).\n 111 Holt v. Hobbs, 135 S.Ct. 853, 866 (2015) (quoting Procunier v. Martinez, 416 U.S.\n\n396, 414, n.14 (1974)).\n 112 ROA 2792-93.\n 113 ROA 2891.\n\n 25\n\n Case: 14-20249 Document: 00515020007 Page: 26 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\npractice is employed, “oftentimes” it is “not” the most common practice. 114 He\nthen explained that “[q]uite frequently” there is “direct supervision, having\nsomeone physically in the room.” 115 He testified that, in lower security\ninstitutions, “constant supervision isn’t quite as well practiced.” 116 “[D]irect\nsupervision, having someone physically in the room, is utilized in religious\nservices . . . quite frequently.” 117 “[S]pecific circumstances” when direct\nsupervision is used depends on the custody level of the institution, but even in\nlower security units, when there are large numbers of inmates, a security\nofficer would be present:\n [E]very institution has a profile for the type of custody levels that\n they embrace. And the higher the custody level, the more difficult\n the prison population is, the more likely you will have constant\n supervision.\n With the less, lower security level institutions, then the\n constant supervision isn't quite as well practiced. In there, you\n would have somebody, you know – a chaplain would be there, and\n the service may take part while the chaplain is moving from room\n to room. But another reason for the provision of a security officer\n is simply the numbers. When there are large numbers of inmates,\n we want to have appropriate supervision. 118\n Taylor made clear that when he was a chaplain in a Florida prison, there\nwas indirect supervision in an inmate-led service only “[w]hen there are\nsmaller services and there is [sic] only a few inmates.” 119 At the time of the\nhearing, there were 6,775 Muslim inmates 120 in 96 prisons across Texas. 121\n\n\n 114 ROA 2891.\n 115 ROA 2891.\n 116 ROA 2892.\n 117 ROA 2891.\n 118 ROA 2891-92.\n 119 ROA 2906.\n 120 Brown v. Livingston, 17 F. Supp. 3d 616, 622 (S.D. Tex. 2014).\n 121 Id. at 623.\n\n 26\n\n Case: 14-20249 Document: 00515020007 Page: 27 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nAveraging the number of inmates across 96 prisons would mean that 70\nMuslim inmates in each prison would potentially attend services and other\nreligious activities. We know from some of the findings of the district court\nthat in at least one prison, in Childress County, there were 53 Muslim\ninmates. 122 But if only 53 inmates in each prison desired to attend group\nworship or study, that is a significant number.\n Taylor also testified that, based on his experience in Texas and Florida,\nwhen “inmates are leading a service . . . having someone there in person\nobserving them” would be “the best form” of security. 123 He also confirmed that\nin services in which “some offenders who have a custody levels that make them\ndangerous” are present, the “best way” of supervising is “direct supervision.” 124\nHe summarized and reiterated his opinion that direct supervision “needs to be\nthere in a religious service to prevent inmates from conducting any disruptive\nor criminal activity in a service.” 125\n The district court’s “Findings of Fact” state that “[d]uring the thirty-five\nyears the Consent Decree was in effect and being adhered to by TDCJ, there\nhas been no evidence of a single reported or known incident involving a serious\nsecurity risk to the prison, its staff, inmates or the public at large involving\ninmate-led Muslim religious activity.” 126 The district court then reasoned that\n“[i]n other words, adherence to Sections III(8) and III(15) of the Consent\nDecree,” which exempts only Muslim inmates from direct supervision, “has not\n\n\n\n\n 122 Id. at 624.\n 123 ROA 2894.\n 124 ROA 2894-2895.\n 125 ROA 2903.\n 126 Brown, 17 F. Supp. 3d at 621.\n\n 27\n\n Case: 14-20249 Document: 00515020007 Page: 28 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\npresented or posed a threat to the security or safety of the institution or the\npublic.” 127\n The implicit assumption underlying this ruling, and the plaintiffs’\narguments, is that Muslim inmates have been relatively peaceful in the past\nwhen indirectly supervised, and therefore, all present and future Muslim\ninmates, unlike inmates of other faiths, pose no threat to security, safety or\norder within the TDCJ system of 111 prisons. Muslim inmates therefore must\nbe permitted to conduct inmate-led religious gatherings without direct\nsupervision. This rationale is problematic for at least two reasons: (1) it\nignores evidence that there is a need for direct supervision of Muslim inmates,\nand (2) it gives disparate, preferential treatment to Muslim inmates over\ninmates of other faiths.\n Courts have recognized that permitting inmates to lead worship services\nwithout appropriate supervision can create hierarchies that are detrimental to\na prison’s discipline structure. The Seventh Circuit, for example, has observed\nthat “allow[ing] inmates to conduct their own religious services [is] a practice\nthat might not only foment conspiracies but also create (though more likely\nmerely recognize) a leadership hierarchy among the prisoners.” 128 Relatedly,\nthe Supreme Court credited testimony in O’Lone v. Estate of Shabazz that\nallowing “‘affinity groups’ in [a] prison to flourish” leads to “‘a leadership role\nand an organizational structure that will almost invariably challenge the\ninstitutional authority’” and that “special arrangements for one group would\ncreate problems as ‘other inmates [see] that a certain segment is escaping’” a\nprison requirement applicable to all others. 129 The “affinity group” in O’Lone\n\n\n 127 Id.\n 128 Johnson-Bey v. Lane, 863 F.2d 1308, 1310 (7th Cir. 1988).\n 129 482 U.S. 342, 353 (1987).\n\n 28\n\n Case: 14-20249 Document: 00515020007 Page: 29 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nwas comprised of Muslim inmates seeking exemption from work details on\nFriday afternoons in order to attend Jumu’ah services. 130\n In the case before us, there was evidence of hierarchies among Muslim\ninmates in the TDCJ system. TDCJ Muslims inmates testified “[we would]\npolice ourselves” 131 when problems arose during inmate-led services that were\nonly indirectly supervised. Inmate worship leaders would prohibit an inmate\nwho behaved inappropriately from attending services for a period of time 132\nand did not report incidents to prison officials because “we take care of\nourselves.” 133 Accordingly, for those who attended indirectly supervised\nreligious gatherings, whether a Muslim inmate would be permitted religious\nexercise was left to the sole discretion of another inmate, and TDCJ officials\nwere kept unaware of disciplinary issues. It is detrimental to the rights of\ninmates when they are disciplined by other inmates, and such a system\nundermines the prison’s disciplinary and oversight functions.\n The district court did not discuss this evidence. Nor did the district court\ndiscuss unrefuted evidence that violence occurred during a Muslim worship\nservice even though that service was directly supervised by a TDCJ employee\nwho was able to intervene immediately. 134 In another incident, an intense\nargument among Muslim inmates at a religious gathering resulted in a\nresponse team from the prison being called due to the potential for violence\nand harm to those present at the worship service, though no physical injury\n\n\n\n\n 130 Id.\n 131 ROA 2697.\n 132 ROA 2697.\n 133 ROA 3818.\n 134 Def. Ex. 46 (incident occurred on July 31, 2013); see also ROA 3077 (the Scott Plan\n\nwent into effect in January 2013).\n 29\n\n Case: 14-20249 Document: 00515020007 Page: 30 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\noccurred before the response team arrived to quell the disorder. 135 There was\nalso evidence of other disruptions in Muslim religious gatherings that did not\nresult in physical violence but were disruptions, nevertheless.\n The district court reasoned that volunteers are not security personnel\nand “the presence of an outside volunteer [does not] further [TDCJ’s]\ncompelling state interest in prison security.” 136 The record as a whole does not\nsupport this conclusion.\n There was unrefuted testimony that prisons across the country utilize\nvolunteers to supervise religious exercise by inmates because volunteers do\nhave a positive impact on maintaining security, safety, and orderliness. 137 An\nexpert witness testified that, in his opinion, a volunteer or a chaplain “needs\nto be there in a religious service to prevent inmates from conducting any\ndisruptive or criminal activity.” 138 This witness also testified that “volunteers\ndo conduct some of the similar duties like a correctional officer who watches\noffenders . . . they watch offenders.” 139 Though volunteers do not have to\npower to discipline or search inmates or physically restrain them, an expert\nwitness testified that he would be satisfied with volunteer-provided security\nthrough direct supervision because they can inform staff if something were to\nhappen within the service “that shouldn’t be happening” and because when a\n\n\n 135 ROA 3816-17; Lemons v. Tex. Dep’t of Criminal Justice, No. 2:09-cv-0102, 2012 WL\n2133700 at *6 (N.D. Tex. May 17, 2012).\n 136 Brown v. Livingston, 17 F. Supp. 3d 616, 627 (S.D. Tex. 2014).\n 137 ROA 4191 (volunteers can directly supervise to gauge whether offenders are\n\n“having inappropriate conversations or they’re having a gang meeting or they’re passing\nnotes, passing contraband, looking for those warning signs”); 4195 (volunteers are trained\n“about security issues and what to be mindful of and what to look for”); see also Chance v.\nTex. Dep't of Criminal Justice, 730 F.3d 404, 414-15 & nn.7-8 (5th Cir. 2013) (agreeing that\nvolunteer supervision serves an important government interest in prison safety and\nsecurity); McAlister v. Livingston, 348 F. Appx 923, 937 (5th Cir. 2009) (per curiam) (same).\n 138 ROA 2903.\n 139 ROA 2923.\n\n 30\n\n Case: 14-20249 Document: 00515020007 Page: 31 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nvolunteer is present, “the offenders would be more likely to stay with the topic\nand with what should be said instead of going off on tangents or discussing\nthings that maybe were not religious in nature.” 140 There was other expert\ntestimony that a volunteer or chaplain can provide observations during\nreligious gatherings of inmates as well as a corrections officer can provide\nobservations. 141\n TDCJ conducts background checks of volunteers and provides training\nregarding security issues, what to be mindful of and look for when in an inmate\npopulation and in services, what to do if a fight or riot erupts. 142 TDCJ\nvolunteers are trained to report any security breaches to prison officials. 143\nMuslim inmates attending indirectly supervised religious activities have not\nalways reported misbehavior or security breaches because of “the offender code\nand telling on each other and as to labeling each other as a snitch.” 144\n The district court’s conclusion that “[t]here is no evidence that the\npresence of a volunteer during a Muslim religious activity at TDCJ increases\nprison safety or security in any way” 145 failed to consider that the evidence on\nthis point is limited. The TDCJ inmates who testified regarding Muslim\nreligious exercise said that, due to the paucity of Muslim volunteers, no\nvolunteers were in any of the services or religious activities that they\nattended. 146 The evidence was extremely sparse, if not non-existent, as to the\nimpact volunteers might have had if they had been available to supervise\n\n\n\n 140 ROA 3499-500.\n 141 ROA 4042.\n 142 ROA 4195.\n 143 ROA 4036-37.\n 144 ROA 3716.\n 145 Brown v. Livingston, 17 F. Supp. 3d 616, 636 (S.D. Tex. 2014).\n 146 See, e.g., ROA 3262 (“Since my 17 years of being on the Robertson Unit, we have\n\nnever had a volunteer that showed up.”); 2627; 2691-92.\n 31\n\n Case: 14-20249 Document: 00515020007 Page: 32 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nMuslim inmates’ religious exercise. As already discussed, because the Muslim\ninmates “take care of their own,” we do not know what issues arose that could\nhave been obviated by the presence of volunteers.\n There is a rational connection between the TDCJ’s indirect supervision\nrequirement and the governmental interest in providing security in prisons.\n B\n As to Turner’s second consideration—Muslim inmates’ “alternative\nmeans of exercising” their religion beliefs 147—“[t]he pertinent question is not\nwhether the inmates have been denied specific religious accommodations, but\nwhether, more broadly, the prison affords the inmates opportunities to exercise\ntheir faith.” 148 In Adkins we upheld the direct supervision requirement against\na Free Exercise challenge because the record reflected that “(1) Adkins had\naccess to religious materials; (2) he and other YEA inmates were not required\nto work on the Sabbath; (3) video and audio tapes were made available on\nMondays to all YEA members; and (4) YEA members were permitted to hold\nand attend live services” when a volunteer was available, approximately\nmonthly. 149 Here, the record demonstrates, and none of the plaintiffs contest,\nthat Muslim TDCJ inmates are permitted to attend a weekly Jumu’ah\nservice, 150 significant accommodations are made for religious festivals such as\nRamadan, 151 and Muslim inmates are permitted to keep religious objects,\n\n\n\n 147 Turner v. Safley, 482 U.S. 78, 90 (1987).\n 148 Adkins v. Kaspar, 393 F.3d 559, 564 (5th Cir. 2004) (alteration in original) (quoting\nFreeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854, 861 (5th Cir. 2004)); see also O’Lone\nv. Estate of Shabazz, 482 U.S. 342, 351-52 (1987) (holding, where Muslim inmates “retain[ed]\nthe ability to participate in other Muslim religious ceremonies,” that inability to attend\nweekly Jumu’ah service did not violate Free Exercise Clause).\n 149 Adkins, 393 F.3d at 564.\n 150 ROA 3284, 3353.\n 151 ROA 2704-07, 3626-27.\n\n 32\n\n Case: 14-20249 Document: 00515020007 Page: 33 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nincluding a Qur’an, a prayer rug, and prayer beads, in their cells for personal\nprayer and study. 152 Muslims inmates may gather in groups of four or fewer\nto worship and study. All Muslim inmates have access to a diet that conforms\nto their faith’s restrictions. While Muslim inmates may not be permitted to\nengage in as many religious gatherings with the numbers of inmates as they\nwish, we conclude, as in Adkins, that they have alternative means of exercising\ntheir religious rights.\n C\n The third Turner consideration addresses the impact the accommodation\nsought would have on other inmates and prison staff and on the allocation of\nprison resources, generally. We conclude, as we did in Adkins, that continuing\nto allow Muslim inmates the freedom to congregate without direct supervision\n“could ‘spawn a cottage industry of litigation and could have a negative impact\non prison staff, inmates and prison resources.’” 153 Furthermore, “if [Muslim\ninmates] were accommodated and other similarly situated small religious\ngroups were not, [Islam] could appear to be favored over the others, a\nperception that could have a negative effect on prison morale and discipline.” 154\n The evidence was unrefuted that TDCJ is short-staffed in spite of\nsustained efforts to hire security personnel. 155 The TDCJ offered evidence that\nthe situation was “critical.” At the time of the hearing, the TDCJ was “3,000\nofficers short,” and “spending 5 million plus in overtime a month.” 156 In some\nof the TDCJ’s “units in West and South Texas,” it was “critically short,” and “a\n\n\n\n\n 152 ROA 2651, 2695.\n 153 Adkins, 393 F.3d at 565 (quoting Freeman, 369 F.3d at 862).\n 154 Id.\n 155 ROA 4072-73.\n 156 ROA 4072.\n\n 33\n\n Case: 14-20249 Document: 00515020007 Page: 34 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nvery serious situation.” 157 “[W]e’re doing all we can, as [others testified], about\ntrying to recruit new staff,” and “[w]e’re doing all we can to try to retain the\nstaff that we have on our facilities.” 158 Priority is given to positions such as “a\ndorm housing rover or a cell block rover, an inside picket officer, . . . central\ncontrol officer, our outside guard towers, things like that, those things that are\ncrucial to the safety and security of the institution.” 159 The TDCJ offered\nevidence that it does not have staff to provide more than one hour of directly\nsupervised religious activities to all inmates seeking to engage in religious\nactivities beyond the one-hour weekly services that are directly supervised by\nTDCJ employees or even solely to Muslim inmates.\n The district court’s response to this evidence was that the TDCJ should\ncease training and organizing volunteers for religious gatherings in prisons.\nBut the costs that would be saved were not quantified, and there was no\nevidence that requiring TDCJ to cease and desist from permitting volunteers\nin the prisons would free sufficient time for TDCJ employees to provide an\nadditional hour of direct supervision of Muslim religious activities each week,\nmuch less the additional hours that the district court would require. Requiring\nTDCJ to cease allowing volunteers would also be contrary to the district court’s\nfinding and unrefuted evidence that volunteers have a substantial, positive\nimpact on inmates and lessen the potential for violence in the prisons.\n D\n The fourth consideration under Turner’s standard of review is whether\nthere is an absence of ready alternatives to the TDCJ’s direct supervision\n\n\n\n\n 157 ROA 4073.\n 158 ROA 4073.\n 159 ROA 4073.\n\n 34\n\n Case: 14-20249 Document: 00515020007 Page: 35 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nrequirement. We have examined alternatives above and do not repeat that\ndiscussion here.\n In sum, we conclude that the Scott Plan poses no violation of the Free\nExercise Clause that would render the consent decree, and its allowance of\nindirect supervision of Muslim religious gatherings, “necessary to correct a\ncurrent and ongoing violation of the Federal right.” 160\n VI\n The district court concluded that the TDCJ’s regulations and policies\nfavored Catholic, Jewish, Native American and Protestant inmates over\nMuslim inmates. 161 Citing the Supreme Court’s decision in Larson v. Valente,\nwhich involved a state statute imposing registration and reporting\nrequirements on religious organizations that solicited more than fifty percent\nof their funds from nonmembers, 162 the district court concluded that “when it\nis claimed that a prison regulation violates an inmate’s Establishment Clause\nrights it must be subjected to strict scrutiny analysis and is upheld only if it is\n‘closely fitted’ to further a ‘compelling government interest.’” 163 The TDCJ\ncontends that the more deferential standard articulated in Turner v. Safley 164\napplies. I first consider the appropriate standard for analyzing the inmates’\nEstablishment Clause claims.\n A\n The Supreme Court has not directly addressed the standard of review\nthat applies when inmates assert a violation of the Establishment Clause, and\nmore particularly, whether the applicable standard may depend upon the\n\n\n 160 18 U.S.C. § 3626(b)(3).\n 161 Brown v. Livingston, 17 F. Supp. 3d 616, 630-33 (S.D. Tex. 2014).\n 162 456 U.S. 228, 230 (1982).\n 163 Brown, 17 F. Supp. 3d at 632 (quoting Larson, 456 U.S. at 247).\n 164 482 U.S. 78 (1987).\n\n 35\n\n Case: 14-20249 Document: 00515020007 Page: 36 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nspecifics of the claim. The Supreme Court has recognized, however, that the\n“constitutional prohibition of denominational preferences is inextricably\nconnected with the continuing vitality of the Free Exercise Clause.” 165\n As discussed in Section V above, O’Lone v. Estate of Shabazz analyzed\nFree Exercise claims and “consider[ed] once again the standard of review for\nprison regulations claimed to inhibit the exercise of constitutional rights.” 166\nIn O’Lone, prison regulations precluded Muslim inmates assigned to outside\nwork details from attending Jumu’ah. 167 The Third Circuit had held that the\nprison’s “policies could be sustained only if: ‘the state . . . show[s] that the\nchallenged regulations were intended to serve, and do serve, the important\npenological goal of security, and that no reasonable method exists by which\n[prisoners’] religious rights can be accommodated without creating bona fide\nsecurity problems.’” 168 The Supreme Court rejected this standard of review.\n“We think the Court of Appeals[’] decision in this case was wrong when it\nestablished a separate burden on prison officials to prove ‘that no reasonable\nmethod exists by which [prisoners’] religious rights can be accommodated\nwithout creating bona fide security problems.’” 169\n The Court explained at length in O’Lone why the “reasonableness test”\nset forth in Turner v. Safley, rather than strict scrutiny, applied. 170 The O’Lone\ndecision then admonished, “[t]o ensure that courts afford appropriate\ndeference to prison officials, we have determined that prison regulations\nalleged to infringe constitutional rights are judged under a ‘reasonableness’\n\n\n\n 165 Larson, 456 U.S. at 245.\n 166 482 U.S. 342, 344 (1987).\n 167 Id. at 347.\n 168 Id. at 347 (quoting Shabazz v. O’Lone, 782 F.2d 416, 420 (3d Cir. 1986)).\n 169 Id. at 350 (quoting Shabazz, 782 F.3d at 420)).\n 170 Id. at 348-350 (quoting Turner v. Safley, 482 U.S. 78, 86-87 (1987)).\n\n 36\n\n Case: 14-20249 Document: 00515020007 Page: 37 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\ntest less restrictive than that ordinarily applied to alleged infringements of\nfundamental constitutional rights.” 171 Referring to Turner, the Court said,\n“[w]e recently restated the proper standard: ‘[W]hen a prison regulation\nimpinges on inmates’ constitutional rights, the regulation is valid if it is\nreasonably related to legitimate penological interests.’” 172 The Court\ncontinued, “[t]his approach ensures the ability of corrections officials ‘to\nanticipate security problems and to adopt innovative solutions to the\nintractable problems of prison administration,’ and avoids unnecessary\nintrusion of the judiciary into problems particularly ill suited to ‘resolution by\ndecree.’” 173 The regulations at issue in Turner included restrictions on the\nrights of inmates to marry.\n However, Turner’s “reasonableness” standard of review does not apply to\nall claims that prison policies are unconstitutional. The Supreme Court held\nin Johnson v. California that “strict scrutiny is the proper standard of\nreview” 174 for “an equal protection challenge” to a state prison’s “policy of\nracially segregating prisoners in double cells in reception centers for up to 60\ndays each time they enter a new correctional facility.” 175 The Court observed\nthat “[w]e have never applied Turner to racial classifications,” and “[w]e think\nthis unsurprising, as we have applied Turner’s reasonable-relationship test\nonly to rights that are ‘inconsistent with proper incarceration.’” 176 The\n\n\n\n 171 Id. at 349 (citation omitted).\n 172 Id. (quoting Turner, 482 U.S. at 89).\n 173 Id. (quoting Procunier v. Martinez, 416 U.S. 396, 405 (1974)); see also Shaw v.\n\nMurphy, 532 U.S. 223, 228-232 (2001) (analyzing whether inmates possess a First\nAmendment right to provide legal assistance to other inmates that enhances the protections\notherwise available under Turner and explaining why they do not).\n 174 543 U.S. 499, 515 (2005).\n 175 Id. at 502.\n 176 Id. at 510 (citations omitted).\n\n 37\n\n Case: 14-20249 Document: 00515020007 Page: 38 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nSupreme Court held in Johnson that “[t]he right not be discriminated against\nbased on one’s race is not susceptible to the logic of Turner. It is not a right\nthat need necessarily be compromised for the sake of proper prison\nadministration.” 177\n At least two Circuit Courts of Appeals have applied a standard to certain\ncategories of Establishment Clause claims that differs from Turner’s standard\nof review. 178 In those cases, prison officials allegedly coerced inmates to\nparticipate in a program founded on religious tenets. No one contends that the\nstandard applied in those cases is appropriately applied to the facts of the\npresent case.\n The question before us is whether an inmate’s claim that prison policies\nafford some faiths more favorable treatment than others implicates “a right\nthat need [not] necessarily be compromised for the sake of proper prison\nadministration,” 179 to which strict scrutiny would apply, or whether such an\nEstablishment Clause claim is instead grounded in “certain privileges and\nrights [that] must necessarily be limited in the prison context,” 180 to which\nTurner’s more deferential standard would apply. I conclude that Turner’s\nstandard applies.\n The Supreme Court has explained that prison officials are not required\nto provide “identical facilities or personnel” to “every religious sect or group\nwithin a prison.” 181 “A special chapel or place of worship need not be provided\n\n\n\n\n 177 Id.\n 178 See, e.g., Jackson v. Nixon, 747 F.3d 537, 541-542 (8th Cir. 2014) (inquiring “‘first,\nhas the state acted; second, does the action amount to coercion; and third, is the object of the\ncoercion religious or secular’”) (quoting Kerr v. Farrey, 95 F.3d 472, 479 (7th Cir. 1996)).\n 179 Johnson, 543 U.S. at 510.\n 180 Id. (citing O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987)).\n 181 Cruz v. Beto, 405 U.S. 319, 325 n.2 (1972).\n\n 38\n\n Case: 14-20249 Document: 00515020007 Page: 39 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nfor every faith regardless of size; nor must a chaplain, priest, or minister be\nprovided without regard to the extent of the demand.” 182 Nevertheless,\n“reasonable op[p]ortunities must be afforded to all prisoners to exercise the\nreligious freedom guaranteed by the First and Fourteenth Amendments\nwithout fear of penalty.” 183\n Prison officials, therefore, are required to facilitate opportunities for\nprisoners to worship or otherwise exercise religious beliefs even though,\noutside the prison context, such involvement would undoubtedly implicate\nEstablishment Clause concerns. When policies ostensibly designed to honor\nthe Free Exercise rights of inmates are challenged on the basis that they\nviolate the Establishment Clause because the policies favor one or more faith\ngroups over another, logic demands that Turner’s standard applies. In\nattempting to accommodate the religious beliefs of varying faith groups in\ncompliance with the Free Exercise Clause, prison officials must operate within\na zone of “reasonableness.” If policies meet Turner’s reasonableness standard\nin effectuating the Free Exercise rights of inmates, then those policies should\nnot be pruned or eliminated as a result of higher scrutiny under the\nEstablishment Clause, even if those policies do not treat all faith groups\nprecisely the same. Prison officials have been accorded some flexibility in\nproviding Free Exercise opportunities for inmates. Inmates’ opportunities for\nreligious exercise would be diminished if a more restrictive standard were\napplied to Establishment Clause claims than is applied to Free Exercise\nclaims, when the allegation is that preference has been given to inmates of one\nor more faiths. If prison policies are in fact balanced and meet the Turner\n\n\n\n 182 Id.\n 183 Id.\n 39\n\n Case: 14-20249 Document: 00515020007 Page: 40 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nstandard, those policies are vindicating only what the First Amendment\nrequires, and such policies do not amount to government involvement in\nreligious matters to such an extent that the Establishment Clause is violated.\n The district court concluded that the TDCJ violated the Establishment\nClause in three ways.\n B\n The district court observed that there “is an ample supply of clerics and\nlaymen who will volunteer to conduct meetings” for some faith groups, “but\nthat among Muslims it has been hard to find a consistent supply of such\nvolunteers.” 184 The district court concluded that, “[i]n such circumstances, a\npolicy that makes the availability of religious activities dependent upon the\navailability of outside volunteers necessarily makes it easier for one group to\npractice its religion over other groups.” 185 Relatedly, the district court\nconcluded that “TDCJ openly favors the Protestantism [sic] and disfavors\nIslam by devoting state resources to the former disproportionately.” 186 The\ndistrict court reasoned that “TDCJ has chosen to allocate substantially more\nresources to religious groups who can procure outside volunteers than for those\nwho are unable to recruit sufficient numbers of outside volunteers to comply\nwith AD 7.30.” 187 The record is clear, however, that the disparity as to\nresources expended is a function of the number of volunteers, not their\nreligious affiliations.\n There is a “valid, rational connection” between permitting volunteers to\nprovide additional opportunities for the exercise of religious rights and “the\n\n\n\n 184 Brown v. Livingston, 17 F. Supp. 3d 616, 631 (S.D. Tex. 2014).\n 185 Id.\n 186 Id.\n 187 Id.\n\n 40\n\n Case: 14-20249 Document: 00515020007 Page: 41 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nlegitimate governmental interest” 188 of prison officials in complying with their\nobligation to afford “reasonable op[p]ortunities . . . to all prisoners to exercise\nthe religious freedom guaranteed by the First and Fourteenth\nAmendment[s].” 189 “[T]he governmental objective” in permitting volunteers\ninto the TDCJ prisons to provide or assist with religious services and studies\nis “a legitimate and neutral one” that “operate[s] in a neutral fashion, without\nregard to the content of the expression.” 190 The record is replete with evidence\nthat inmates who participate in religious services and studies are less likely to\nhave disciplinary issues while confined and have lower recidivism rates once\nreleased. The fact that more volunteers in the TDCJ system were Protestant\nor Catholic than Muslim was not due to any policy of the TDCJ. The TDCJ\nmade efforts to recruit more Muslim volunteers, and Muslims who volunteered\nwere treated the same as other volunteers.\n The second Turner factor is “whether there are alternative means of\nexercising the right that remain open to prison inmates.” 191 The Muslim\ninmates who are the plaintiffs in this case do not seek to eliminate the\nvolunteer policy as violative of the Establishment Clause. Nor do they ask that\nadditional training and resources be provided to Muslim volunteers. The\nplaintiffs instead seek an order permitting all Muslim inmates to gather in\ngroups of more than four without direct supervision by prison employees or a\nvolunteer. That would not vindicate the right to have a state actor cease\nexcessive entanglement with religion. 192 What the plaintiffs seek indicates\nthat their complaints regarding the volunteer policy and resources devoted to\n\n\n 188 Turner v. Safley, 482 U.S. 78, 89 (1987).\n 189 Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972).\n 190 Turner, 482 U.S. at 90 (citations omitted).\n 191 Id.\n 192 See generally Lemon v. Kurtzman, 403 U.S. 602, 613 (1971).\n\n 41\n\n Case: 14-20249 Document: 00515020007 Page: 42 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nimplementing volunteers’ access to inmates is not grounded in the\nEstablishment Clause. If the volunteer policy were eliminated or fewer\nresources were expended to support volunteer efforts, inmates, including\nMuslim inmates, would have fewer opportunities for worship and religious\nstudy.\n The third Turner “consideration is the impact accommodation of the\nasserted constitutional right will have on guards and other inmates, and on\nthe allocation of prison resources generally.” 193 “When accommodation of an\nasserted right will have a significant ‘ripple effect’ on fellow inmates or on\nprison staff, courts should be particularly deferential to the informed discretion\nof corrections officials.” 194 If the volunteer policy were eliminated as violative\nof the Establishment Clause, inmates would be adversely impacted, but\nresources would no longer be spent by the TDCJ to implement the volunteer\nprogram.\n The final Turner consideration is that “the absence of ready alternatives\nis evidence of the reasonableness of a prison regulation.” 195 “By the same\ntoken, the existence of obvious, easy alternatives may be evidence that the\nregulation is not reasonable, but is an ‘exaggerated response’ to prison\nconcerns.” 196 The alternatives to allowing volunteers into the TDCJ prisons to\nfacilitate religious worship and study include excluding the volunteers or\npaying other individuals to replace them. The first alternative would, as\ndiscussed, reduce inmates’ religious exercise. The second would require\nconsiderable expenditures.\n\n\n\n 193 Turner, 482 U.S. at 90.\n 194 Id. (citation omitted).\n 195 Id. (citing Block v. Rutherford, 468 U.S. 576, 587 (1984)).\n 196 Id.\n\n 42\n\n Case: 14-20249 Document: 00515020007 Page: 43 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\n When assessed under the Turner considerations, the volunteer policy\nand the resources expended to implement it are reasonably related to the\nTDCJ’s obligation to afford inmates reasonable opportunities to exercise\nreligious freedom.\n The district court erred in applying strict scrutiny to the claim that the\nvolunteer policy violates the Establishment Clause because fewer Muslims\nvolunteer than Protestants or Catholics and more resources are devoted to\nProtestant and Catholic volunteers than Muslim volunteers. The TDCJ’s\npolicies are facially neutral. The Larson v. Valente decision, 197 on which the\ndistrict court relied, 198 explains that strict scrutiny does not “apply to laws\naffording a uniform benefit to all religions.” 199 Seven years after Larson was\ndecided, the Supreme Court reiterated, “Larson teaches that, when it is\nclaimed that a denominational preference exists, the initial inquiry is whether\nthe law facially differentiates among religions. If no such facial preference\nexists, we proceed to apply the customary three-pronged Establishment Clause\ninquiry derived from Lemon v. Kurtzman.” 200 The Lemon inquiry does not\nemploy strict scrutiny. 201 However, for the reasons considered above, we\nconclude that Turner, rather than Lemon, provides the proper standard of\nreview.\n\n\n 197 456 U.S. 228 (1982).\n 198 Brown v. Livingston, 17 F. Supp. 3d 616, 630 (S.D. Tex. 2014).\n 199 Larson, 456 U.S. at 252.\n 200 Hernandez v. C.I.R., 490 U.S. 680, 695 (1989) (citing Larson, 456 U.S. at 252); see\n\nalso In re Navy Chaplaincy, 738 F.3d 425, 430 (D.C. Cir. 2013) (“As the challenged policies\nare facially neutral, Larson doesn’t trigger strict scrutiny, and we proceed to Lemon.”);\nKoenick v. Felton, 190 F.3d 259, 264 (4th Cir. 1999) (“Strict scrutiny in the Establishment\nClause context is to be used to evaluate only those statutes that facially discriminate between\nreligious denominations or between religion and non-religion.”) (citing Hernandez, 490 U.S.\nat 695).\n 201 See, e.g., Larson, 456 U.S. at 252 (“the Lemon tests . . . do not reflect the same\n\nconcerns that warranted the application of strict scrutiny.”).\n 43\n\n Case: 14-20249 Document: 00515020007 Page: 44 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\n Brown argues that we should apply the Lemon test. The Supreme Court\nhas observed that “just two years after Lemon was decided, we noted that the\nfactors identified in Lemon serve as ‘no more than helpful signposts,’” 202 and\n“[m]any of our recent cases simply have not applied the Lemon test.” 203 The\nSupreme Court then proceeded to apply an “analysis . . . driven both by the\nnature of the monument and by our Nation's history” to a claim that a Ten\nCommandments monument displayed on the grounds of the Texas capitol\nviolated the Establishment Clause. 204 The Supreme Court did not apply either\nstrict scrutiny or the Lemon factors. 205\n My conclusion that the Turner v. Safley standard of review 206 applies,\nrather than the Lemon v. Kurtzman criteria, 207 is informed by these\nprecedents. Additionally, if applied literally, the criteria set forth in Lemon\n\n\n\n 202 Van Orden v. Perry, 545 U.S. 677, 686 (2005) (citations omitted); but see McCreary\nCounty v. ACLU of Ky., 545 U.S. 844, 859-66 (2005) (applying the Lemon factors to displays\nof the Ten Commandments on the walls of state courthouses, concluding that the purpose of\nthe displays was not secular and therefore violated the Establishment Clause).\n 203 Van Orden, 545 U.S. at 686 (citations omitted).\n 204 Id.\n 205 See also Am. Legion v. Am. Humanist Ass’n, 588 U.S. ___, slip op. at *12-13 (2019)\n\n(opinion of ALITO, J.) (plurality opinion) (“Lemon ambitiously attempted to distill from the\nCourt’s existing case law a test that would bring order and predictability to Establishment\nClause decisionmaking. . . . If the Lemon Court thought that its test would provide a\nframework for all future Establishment Clause decisions, its expectation has not been met.”\n“As Establishment Clause cases involving a great array of laws and practices came to the\nCourt, it became more and more apparent that the Lemon test could not resolve them.”); id.\nat *24-25 (“While the Lemon Court ambitiously attempted to find a grand unified theory of\nthe Establishment Clause, in later cases, we have taken a more modest approach that focus\non the particular issue at hand and looks to history for guidance.”).\n 206 482 U.S. 78, 89-90 (1987).\n 207 403 U.S. 602, 612-613 (1971) (“Every analysis in this area must begin with\n\nconsideration of the cumulative criteria developed by the Court over many years. Three such\ntests may be gleaned from our cases. First, the statute must have a secular legislative\npurpose; second, its principal or primary effect must be one that neither advances nor inhibits\nreligion; finally, the statute must not foster ‘an excessive government entanglement with\nreligion.’”) (citations omitted).\n 44\n\n Case: 14-20249 Document: 00515020007 Page: 45 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nare in tension with the obligation the Supreme Court has said prison officials\nhave to afford inmates opportunities to attend religious services and pursue\nreligious studies. The second Lemon criterion is that the regulation’s\n“principal or primary effect must be one that neither advances nor inhibits\nreligion.” 208 Prison policies that provide opportunities for inmates to worship\nand pursue religious studies have the purpose of facilitating inmates’ exercise\nof First and Fourteenth Amendment Free Exercise rights and advance religion\nfor those inmates who choose to participate. It is difficult to see how the\nSupreme Court’s jurisprudence could be construed to require prison officials to\nfacilitate religious services and studies and at the same time, to deem prison\nofficials in violation of the Establishment Clause if they do facilitate such\nreligious activities.\n The Lemon factors could arguably be applied with the acknowledgement\nthat prison officials have an obligation grounded in the First and Fourteenth\nAmendments to afford inmates reasonable opportunities to exercise their\nreligious beliefs. Viewed through that lens, the secular purpose of a direct\nsupervision policy, when applied to secular as well as religious gatherings, is\nto maintain safety and security within a prison. The secular purpose of\ntraining volunteers who facilitate religious activities or who supervise inmates\nconducting or participating in religious pursuits is to comply with the\nconstitutional obligation to provide inmates reasonable opportunities to\nengage in the free exercise of their religious beliefs. Viewed in light of this\noverarching obligation, the direct supervision policy and the training of\nvolunteers is facially neutral and neither advances nor inhibits any particular\nfaith. Here again, it is the paucity of Muslim volunteers as compared to\n\n\n 208 Id.\n 45\n\n Case: 14-20249 Document: 00515020007 Page: 46 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nChristian volunteers that results in Christian inmates having more\nopportunities for religious exercise. As to the third Lemon factor, a facially\nneutral policy that provides reasonable opportunities for inmates to exercise\ntheir religious beliefs is not excessive governmental entanglement with\nreligion.\n C\n The district court additionally determined that Jewish and Native\nAmerican inmates were housed in a manner that facilitates the exercise of\ntheir religious beliefs, while Muslim inmates were not. The district court\nconcluded this violated the Establishment Clause:\n The fact that Jewish inmates are assigned to four particular\n units within the prison system specifically to bring them closer to\n Jewish religious volunteers and that Native American inmates are\n assigned to housing units specifically selected to make religions\n [sic] activities more available to them, while TDCJ makes no effort\n to house Muslim inmates in units close to the population centers\n where Muslim volunteers might be recruited, constitutes a clear\n violation of the Establishment Clause. Prison officials are\n deliberately favoring Jewish and Native American inmates over\n Muslim inmates by facilitating their access to religious activities.\n Thus, TDCJ has intentionally made it easier for Jewish inmates\n over Muslim inmates to have volunteer-led religious activities.\n That circumstance alone, in and of itself, constitutes a violation of\n the Establishment Clause.” 209\n\n\n 209Brown, 17 F. Supp. 3d at 631 (citations omitted). Relatedly, the district court found\nor concluded:\n The TDCJ’s inmate assignment policy has not been neutrally applied. To the\n contrary, unlike Muslim inmates, Jewish inmates are specifically assigned to\n units in order that they are closer to prospective volunteers. The TDCJ has\n four units designated for Jewish inmates and Jewish inmates are intentionally\n located in places where the largest number of Jews reside so as to enhance the\n opportunity for Jewish inmates to interact with Jewish citizens in religious\n activities. Likewise, Native American inmates are assigned to a specifically\n designated unit to facilitate access to each other and to enhance Native\n American religious activities. By contrast, there are no units designated as\n 46\n\n Case: 14-20249 Document: 00515020007 Page: 47 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\n The record does not support the conclusion that the TDCJ’s policies have\nresulted in greater access to religious exercise for Jewish and Native American\ninmates as compared to Muslim inmates. There are proportionately more\nMuslim volunteers than Jewish or Native American volunteers. Nor does the\nevidence support a conclusion that large numbers of Jewish or Native\nAmerican inmates are concentrated in a few prison units, even though it is\nundisputed that four prison units were designated as “Jewish. Nor is there\nsupport in the record for the inmates’ assertion that Jewish and Native\nAmerican inmates had more religious services or more access to religious\nactivities than Muslim inmates. I consider the evidence as to each of the\ndistrict court’s findings or conclusion in more detail.\n 1\n The TDCJ classified nine faith groups 210 as comprising the category of\n“Jewish” inmates in May 31, 2013, for purposes of providing information to the\nparties and the district court in this litigation. That evidence, on which all\nparties rely, reflects that as of May 31, 2013, there were 922 Jewish inmates\nhoused in 95 of 117 TDCJ prison units. At that time, there were no Jewish\nchaplains, 211 no certified volunteer chaplains’ assistants, 212 “one contract\nJewish Chaplain[],” 213 and 15 Jewish or Hebrew volunteers. 214 That is a ratio\nof one chaplain or volunteer to approximately 58 inmates. Though the district\n\n\n\n Muslim units in close proximity to Muslim citizen volunteers—that\n consideration was not contemplated by TDCJ in assigning Muslim inmates to\n housing units. Id. at 629-30.\n 210 See Parties Joint Ex. 15 (reflecting nine faiths identified by inmates, Nazarite,\n\nJewish, Hebrew, Hebrew Israelite, Orthodox Jew, Shaivite, Kabbalah, Orthodox Hebrew,\nand Reformed Jewish, as collectively comprising 922 “Jewish” inmates).\n 211 Parties Joint Ex. 13.\n 212 Parties Joint Ex. 19.\n 213 Brown v. Livingston, 17 F. Supp. 3d 616, 622 (S.D. Tex. 2014).\n 214 Parties Joint Ex. 18.\n\n 47\n\n Case: 14-20249 Document: 00515020007 Page: 48 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\ncourt concluded that “Jewish inmates are specifically assigned to units in order\nthat they are closer to prospective volunteers,” 215 if that were the intent (and\nthere is no evidence that it was), then significant numbers of Jewish volunteers\ndid not materialize.\n By comparison, the undisputed TDCJ data reflects there were 6,775\nMuslim inmates (comprised of 12 different Muslim faith groups identified by\nTDCJ inmates) as of May 31, 2013, 216 who were confined in 113 of the 117\nTDCJ units. 217 There were five Muslim chaplains as of that date, 218 no certified\nvolunteer chaplain’s assistants, 219 and 222 Muslim volunteers. 220 That results\nin a ratio of one volunteer or chaplain to approximately 30 Muslim inmates.\n A TDCJ employee testified that there have been four units designated\nfor “Jewish” inmates, 221 and one of these was also a “Kosher” unit. 222 The\nrecord is sparse as to why four units were designated as “Jewish”, and there is\nno evidence in the record as to how inmates are chosen to be assigned there.\nThe record reflects that the Wynne Unit was designated as a Jewish unit, but\nthe names of the other three units do not appear in the record. A Muslim\nchaplain and a non-Roman Catholic chaplain were the two chaplains assigned\nto the Wynne Unit. 223 It housed 2592 inmates who had expressed a faith\npreference, of whom 28 were Jewish (approximately 1%), 135 were Muslim\n(approximately 5.2%), and 48 were Native American (1.6%). 224 The Muslim\n\n\n 215 Brown, 17 F. Supp. 3d at 629.\n 216 Parties Joint Ex. 15.\n 217 Parties Joint Ex. 16.\n 218 Parties Joint Ex. 14.\n 219 Parties Joint Ex. 19.\n 220 Parties Joint Ex. 18.\n 221 ROA 3214.\n 222 ROA 3214.\n 223 Parties Joint Ex. 13.\n 224 Parties Joint Ex. 16.\n\n 48\n\n Case: 14-20249 Document: 00515020007 Page: 49 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nchaplain testified that he did not know whether the reason that the Wynne\nUnit was designated as a “Jewish” unit was so that “volunteers might be more\navailable to the urban areas.” 225 He said that it was his responsibility to “make\nsure” that the Jewish inmates at the Wynne Unit “have their services” and\n“their holidays” and that “if they have any problem, they come to me.” 226\n As to the other three “Jewish” units, it is clear that none of them housed\na large percentage of Jewish inmates. From an analysis of the Parties Joint\nExhibit 16, it can be determined that at most, 21% of the 922 Jewish inmates\n(as many as 196) were housed within four units designated for Jewish\ninmates. 227 The remaining 79% or more of Jewish inmates were housed in 94\nother TDCJ units.\n There was testimony that an unspecified number of Native Americans\nhave been assigned to an unspecified number of units to make communal\nworship feasible. 228 As of May 31, 2013, there were 4,473 Native American\ninmates 229 housed in 108 of 117 TDCJ units. 230 Native American inmates were\nwidely distributed among these units. 231 They were not concentrated in a\nsmall number of prison units. There was one Native American chaplain, 232 no\ncertified volunteer chaplain’s assistant, 233 and there were six Native American\n\n\n 225 ROA 3784.\n 226 ROA 3784.\n 227 Parties Joint Ex. 16. The record reflects that the Wynne Unit was designated for\n\nJewish inmates (ROA 3784), but does not identify the other three designated units. There\nwere 28 Jewish inmates housed in the Wynne Unit. Even assuming that the three designated\nunits other than the Wynne Unit were those with the largest populations of Jewish inmates,\nthen, at most, the number of Jewish inmates housed in “designated” units was 196 out of 922\nJewish inmates, approximately 21%.\n 228 ROA 3215-16.\n 229 Parties Joint Ex. 15.\n 230 Parties Joint Ex. 16.\n 231 Parties Joint Ex. 16.\n 232 Parties Joint Exs. 13 and 14.\n 233 Parties Joint Ex. 19.\n\n 49\n\n Case: 14-20249 Document: 00515020007 Page: 50 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nvolunteers. 234 That results in a ratio of 1 chaplain or volunteer to 744 Native\nAmerican inmates. Native American inmates had access to far fewer chaplains\nand volunteers than Muslim inmates.\n The district court concluded that TDCJ had assigned “Muslim inmates[]\nprimarily to housing units that are long distances from population centers\nwhere a significant numbers [sic] of Muslim civilians reside.” 235 The district\ncourt detailed evidence of the number of Muslim inmates confined in particular\ncounties as compared to the Muslim populations in those counties. 236 The\ndistrict court concluded, “[w]hether it is the intent of the TDCJ to assign\nMuslim inmates to areas in the state where Muslim volunteers do not reside\nthat, nevertheless, is the effect of unit assignments.” 237 These findings imply\nthat TDCJ could and should house Muslims in prison units closer to larger\npopulations of Muslims. But there is no evidence that there are any TDCJ\nprison units that are close to larger populations of Muslims or that it is\nphysically feasible to house 6,775 Muslim inmates near larger populations of\nMuslims.\n Brown’s brief in this court implicitly acknowledges that none of Texas’s\nprison units are located near Muslim residents. Brown asserts that the TDCJ\nhas “construct[ed] . . . prison units in areas where there are plentiful Christian\nvolunteers but virtually no Muslim residents anywhere close.” But there is\nabsolutely no evidence that the State of Texas has chosen prison locations\nbased on faith preferences of inmates, the proximity of civilian populations of\nparticular faiths, or to create distances from Muslim civilian populations.\n\n\n\n 234 Parties Joint Ex. 18.\n 235 Brown v. Livingston, 17 F. Supp. 3d 616, 623 (S.D. Tex. 2014).\n 236 Id. at 623-24.\n 237 Id. at 623.\n\n 50\n\n Case: 14-20249 Document: 00515020007 Page: 51 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\n 2\n The evidence does not support the conclusion that the assignment of\nsome Jewish and Native American inmates to particular units resulted in\ngreater access to chaplains or volunteers than was available to Muslim\ninmates. I will nevertheless assume that the TDCJ intentionally assigned\nsome number of Jewish and Native American inmates to specific prison units\nto facilitate the exercise of their respective religious beliefs but did not do so\nfor any Muslim inmates.\n The first consideration under Turner is whether such a policy has a valid,\nrational connection to the governmental interest in providing reasonable\nopportunities for all inmates to exercise their religious freedom rights. As\npreviously noted, the Supreme Court has recognized that prison officials are\nnot required to provide “identical facilities or personnel” to “every religious sect\nor group within a prison.” 238 Jewish and Native American volunteers were\neven more scarce than Muslim volunteers. There were no Jewish chaplains,\nonly one paid outside Jewish chaplain, and there was one Native American\nChaplain. Assigning some Jewish inmates and some Native American inmates\nto specific prison units to facilitate the opportunity for religious exercise for\nthose inmates, was reasonable.\n The second Turner consideration is whether there are alternative means\nfor Muslim inmates to exercise their Establishment Clause rights.\nEliminating any favoritism that might have been shown to Muslim inmates is\nnot the remedy that the plaintiffs seek. Nor is there evidence that, had Muslim\ninmates been housed differently, their opportunities for religious exercise\nwould have been increased.\n\n\n 238 Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972).\n 51\n\n Case: 14-20249 Document: 00515020007 Page: 52 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\n The evidence is silent as to the third Turner consideration, which is the\nimpact on guards, other inmates, or the allocation of prison resources\ngenerally. With regard to the fourth Turner factor, it does not appear that\nceasing to assign Jewish and Native American inmates in the way that the\nTDCJ has done would either decrease the “favoritism” shown to those inmates\nor increase Muslim inmates’ opportunities to worship and study. There is no\nevidence that Jewish or Native American inmates enjoyed more than one hour\nof worship each week, or its equivalent. The number of Muslim volunteers\nexceeded the relative number of Jewish and Native American volunteers even\nunder the TDCJ’s existing housing policies, and there is no indication that\nchanging that policy would have any effect other than reducing the\nopportunities for religious exercise by Jewish and Native American inmates.\n The TDCJ’s housing policies do not fail Turner’s rationality review. The\npolicy does not violate the Establishment Clause.\n D\n Brown argues that the direct supervision policy applies only to religious\nactivities and not to secular ones within TDCJ’s prisons and therefore, that the\ndirect supervision policy violates the Establishment Clause. The district court\ndid not ground its finding of an Establishment Clause violation on such a basis.\n Brown contends, without any record citations, that band, choir practice,\ncraft shop, and Safe Prison Program classes are indirectly supervised. As a\nfactual matter, the evidence reflects that secular activities in prisons that are\nnot directly supervised almost invariably involve inmates who have been\nscreened for disciplinary violations. Religious gatherings, by contrast, involve\ninmates with varying security classifications. Applying the Turner\nconsiderations, there was no Establishment Clause violation.\n\n\n 52\n\n Case: 14-20249 Document: 00515020007 Page: 53 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\n The first Turner inquiry is whether there is a “‘valid, rational\nconnection’ between the prison regulation and the legitimate governmental\ninterest put forward to justify it.” 239 Two inmates testified that two craft shops\nat the Robertson Unit were indirectly supervised. 240 However, another witness\ntestified that craft shops are directly supervised, 241 and the unrefuted\ntestimony was that all inmates in all craft shops were “screened very\nclosely.” 242 Being allowed to go to craft shop was “a kind of a privilege,” and\n“craft shop privileges” could be lost due to disruptive conduct. 243 The evidence\nreflects that “[t]here’s a big difference between craft shop and religious\nservices.” 244 The evidence was undisputed that TDJC “screen[s] all the\noffenders in the craft shop . . . very closely,” but “these offenders going to all\nthese religious services all across the unit in different custodies” are “not\nscreened and they have gang tendencies and staff assault histories and\nweapons possessions.” 245 There is therefore “a greater propensity for violence\nin [TDCJ’s] open-call services than these other faith groups that are directly\nsupervised now.” 246 Muslim inmates who attend Jumu’ah are not screened\nbased on disciplinary criteria or offender category.\n There was evidence that at one prison in the TDCJ system, the\nRobertson Unit, a Christian choir was permitted to practice in a multi-purpose\nroom with an officer stationed outside, looking in through a window that went\n\n\n\n 239 Turner v. Safley, 482 U.S. 78, 89 (1987) (quoting Block v. Rutherford, 468 U.S. 576,\n586 (1984)).\n 240 ROA 2666; 3252-3253; 3264-3267; 4060.\n 241 ROA 4058-4060.\n 242 ROA 4176.\n 243 ROA 4175-76.\n 244 ROA 4176.\n 245 ROA 4176.\n 246 ROA 4176.\n\n 53\n\n Case: 14-20249 Document: 00515020007 Page: 54 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nfrom the ceiling to waist level. 247 This occurred for a ten-year period, but choir\npractice was discontinued by an assistant warden. 248 The record is silent as to\nwhether these inmates were screened based on their disciplinary records or\noffender category.\n With regard to dormitories, the evidence reflected that “dormitory\noffenders are screened. They’re some of [TDCJ’s] best offenders and they’re\nnot coming from all over the facility.” 249 There was also testimony that\n [t]he offenders in the dorm housing area are around each other\n every day, day in and day out, when they’re not working . . . . The\n offenders that go to programmatic activities such as religious\n services, they don’t have access to each other every day. So, you’re\n more concerned about gatherings that bring offenders from\n different areas of the facility because of things that they could be\n doing that is not appropriate for whatever the program is, whether\n it be religious or education or whatever. 250\n A TDCJ witness testified that other than some of the craft shops and\ndormitories, there are no situations in which indirect supervision is used. 251 A\nTDCJ witness testified that inmates are directly supervised when they are in\noutdoor recreation areas and when in day rooms engaging in other secular\nactivities. 252\n There is a rational connection between the direct supervision policy for\nreligious gatherings of more than four inmates and the legitimate\ngovernmental interest in safety and security in prisons. The evidence of\n\n\n\n\n 247 ROA 3253; 3263-64.\n 248 ROA 3264.\n 249 ROA 4205; see also ROA 4139-4140.\n 250 ROA 3720-21.\n 251 ROA 4201; 4205-06.\n 252 ROA 4141.\n\n 54\n\n Case: 14-20249 Document: 00515020007 Page: 55 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\nindirect supervision of some secular activities by some inmates, who were\nscreened, does not undermine the rationality of that connection.\n The second and third Turner 253 factors have been considered above, and\nthat discussion will not be repeated. As to the fourth consideration, “the\nabsence of ready alternatives is evidence of the reasonableness of a prison\nregulation.” 254 Restricting indirectly supervised religious gatherings to\ninmates who are not security risks would not address legitimate concerns\nassociated with inmate-led services and studies, discussed above.\n The district court did not err in failing to conclude that the\nEstablishment Clause was violated because some secular activities by inmates\nwho were screened based on their disciplinary records were permitted to\ngather for secular activities while indirectly supervised.\n VII\n In sum, we hold that the consent decree does not remain necessary to\ncorrect current and ongoing violations of RLUIPA, the Free Exercise Clause,\nor the Establishment Clause. Accordingly, the TDCJ’s motion to vacate the\nconsent decree should have been granted.\n The district court also awarded attorneys’ fees to Brown and the Inmate\nIntervenors as prevailing parties pursuant to 42 U.S.C. § 1988(b). 255 However,\nin light of our conclusion as to the merits of the TDCJ’s motion to vacate the\nconsent decree, Brown and the Inmate Intervenors are not prevailing parties.\nWe vacate the award of attorneys’ fees.\n\n\n\n 253 Turner v. Safley, 482 U.S. 78, 90 (1987) (“A second factor . . . is whether there are\nalternative means of exercising the right that remain open to prison inmates,” and “[a] third\nconsideration is the impact accommodation of the asserted constitutional right will have on\nguards and other inmates, and on the allocation of prison resources generally.”).\n 254 Id.\n 255 ROA 2021.\n\n 55\n\n Case: 14-20249 Document: 00515020007 Page: 56 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n\n * * *\n For the foregoing reasons, the district court’s denial of the TDCJ’s motion\nto terminate the consent decree and award of attorneys’ fees to Brown and the\nInmate Intervenors were in error. The district court’s judgment is\nREVERSED, and the consent decree is terminated.\n\n\n\n\n 56\n\n Case: 14-20249 Document: 00515020007 Page: 57 Date Filed: 07/02/2019\n\n\n\n No. 14-20249\n c/w No. 14-20444\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Bobby R. BROWN, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellee, William E. Scott, Intervenor Plaintiff-Appellee, Tyrone Day; Kenneth Hickman ; R. Wayne Johnson ; Torrance Flemings; Kenneth Pryor; Julian A. Randall; Lonnie Dean Collins; Lamont Edward Wilson, Intervenor Plaintiffs-Appellees, v. Bryan COLLIER, Executive Director of the Texas Department of Criminal Justice, Defendant-Appellant. Bobby R. Brown, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellee, Tyrone Day; Kenneth Hickman ; R. Wayne Johnson ; Torrance Flemings; Kenneth Pryor; Julian A. Randall; Lonnie Dean Collins; Lamont Edward Wilson, Intervenor Plaintiffs-Appellees, v. Bryan Collier, Executive Director of the Texas Department of Criminal Justice, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-02\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 14-20249 Document: 00515020007 Page: 1 Date Filed: 07/02/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n July 2, 2019\\n No. 14-20249\\n Lyle W. Cayce\\n Clerk\\nBOBBY R. BROWN, individually and on behalf of all others similarly\\nsituated,\\n\\n Plaintiff—Appellee,\\n\\nWILLIAM E. SCOTT,\\n\\n Intervenor Plaintiff—Appellee,\\n\\nTYRONE DAY; KENNETH HICKMAN; R. WAYNE JOHNSON; TORRANCE\\nFLEMINGS; KENNETH PRYOR; JULIAN A. RANDALL; LONNIE DEAN\\nCOLLINS; LAMONT EDWARD WILSON,\\n\\n Intervenor Plaintiffs—Appellees,\\nv.\\n\\nBRYAN COLLIER, Executive Director of the Texas Department of Criminal\\nJustice,\\n\\n Defendant—Appellant.\\n\\n**********************************************************\\nconsolidated with 14-20444\\n\\nBOBBY R. BROWN, individually and on behalf of all others similarly\\nsituated,\\n\\n Plaintiff—Appellee,\\n\\nTYRONE DAY; KENNETH HICKMAN; R. WAYNE JOHNSON; TORRANCE\\nFLEMINGS; KENNETH PRYOR; JULIAN A. RANDALL; LONNIE DEAN\\nCOLLINS; LAMONT EDWARD WILSON,\\n\\n Intervenor Plaintiffs—Appellees,\\n\\n Case: 14-20249 Document: 00515020007 Page: 2 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n\\nv.\\n\\nBRYAN COLLIER, Executive Director of the Texas Department of Criminal\\nJustice,\\n\\n Defendant—Appellant.\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore KING, DENNIS, and OWEN, Circuit Judges.\\nPRISCILLA R. OWEN, Circuit Judge, joined by KING, Circuit Judge, in Parts\\nI, II, III, IV, V and VII:\\n\\n Pursuant to a provision of the Prison Litigation Reform Act (PLRA), 1 the\\nTexas Department of Criminal Justice (TDCJ) seeks to terminate a consent\\ndecree entered in 1977, which exempts Muslim inmates from the requirement\\nthat all religious gatherings and activities in Texas state prisons attended by\\nmore than four inmates must be directly supervised by either prison staff or a\\nprison-approved outside volunteer. The district court denied the motion in\\npart, concluding that a portion of the consent decree remains necessary to\\ncorrect current and ongoing violations of the Religious Land Use and\\nInstitutionalized Persons Act (RLUIPA), 2 the Free Exercise Clause of the First\\nAmendment, and the Establishment Clause of the First Amendment. We\\nreverse and terminate the 1977 consent decree.\\n\\n\\n\\n 1 18 U.S.C. § 3626(b).\\n 2 42 U.S.C. § 2000cc, et seq.\\n 2\\n\\n Case: 14-20249 Document: 00515020007 Page: 3 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n I\\n More than forty years ago, Bobby Brown (Brown), a Muslim, initiated a\\nclass action against the executive director of TDCJ that resulted in the 1977\\nconsent decree. That decree required TDCJ to make an exception for Muslim\\ninmates to a policy that otherwise applied to those attending religious\\nactivities. TDCJ’s rules and policies have required religious worship services\\nor study gatherings attended by more than four inmates to be “directly”\\nsupervised by either prison staff, which would include a chaplain employed by\\nTDCJ, or a prison-approved outside volunteer. 3 Direct supervision means that\\neither a TDCJ employee or a qualified volunteer is in the room during the\\nreligious activities at all times and is supervising only those activities, with no\\nresponsibility for supervising other areas of the prison or other inmates until\\nthe activities have concluded. 4 However, when a volunteer is supervising or\\nleading the religious gathering, a TDCJ officer “will be roving the hallways\\nchecking on the offenders, checking on the volunteers.” 5 If an officer is not\\navailable, the service or activity will be cancelled, even if a volunteer is\\nscheduled to be present. 6\\n The 1977 consent decree afforded Muslim inmates the right to\\nparticipate in group religious services and studies that were “indirectly”\\nsupervised if no prison staff member or outside volunteer was available for\\ndirect supervision. 7 Indirect supervision means that a prison staff member is\\nin the vicinity and observes the religious gathering intermittently, through\\nwindows or by the use of audio or video equipment, but does not remain present\\n\\n\\n 3 Brown v. Livingston, 17 F. Supp. 3d 616, 619 (S.D. Tex. 2014).\\n 4 ROA 1432.\\n 5 ROA 2488-89.\\n 6 ROA 2489.\\n 7 See Brown, 17 F. Supp. 3d at 620.\\n\\n 3\\n\\n Case: 14-20249 Document: 00515020007 Page: 4 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nin the room or area where the activity is occurring. 8 The consent decree also\\nprovided that adherents to the Religion of Islam must be allowed “equal time\\nfor worship services and other religious activities each week as is enjoyed by\\nadherents to the Catholic, Jewish and Protestant faiths,” and the decree said\\nthat TDCJ must “specifically, allow adherents to the Religion of Islam at least\\ntwo (2) full hours of time for worship services or other religious activities each\\nweek, rather than the one (1) hour previously permitted.” 9 In the present\\nproceedings, the district court found that from 1977 until January 1, 2013,\\nMuslim, Jewish, Catholic, Protestant, and Native American inmates could\\nengage in an average of six hours of religious activities each week at units in\\nwhich members of each of these faith groups were housed. 10\\n However, members of other faiths were not permitted to gather as\\nfrequently due to the lack of civilian volunteers. William Scott, a Jehovah’s\\nWitness, sued the director of TDCJ in federal district court in 2009, seeking an\\ninjunction ordering prison officials to allow him and other members of the\\nJehovah’s Witness faith to meet without volunteers, just as Muslims were\\npermitted to do as a result of the consent decree. The district court’s 2012\\nopinion and order in the Scott suit reflected that there were 217 offender faith\\npreferences represented in the TDCJ system, and 59 designated faith groups\\nat the Huntsville Unit, where Scott had been confined for a period of time. 11\\nTDCJ asserted that it did not have sufficient staff to provide adequate\\nsupervision of all offender faith groups if they were allowed to meet without\\n\\n\\n\\n\\n 8Id. at 621.\\n 9ROA 40.\\n 10 Brown, 17 F. Supp. 3d at 621.\\n 11 Scott v. Pierce, No. 4:09-CV-3991, 2012 WL 12535442, at *1 (S.D. Tex. May 7, 2012)\\n\\n(unpublished).\\n 4\\n\\n Case: 14-20249 Document: 00515020007 Page: 5 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nvolunteers present. 12 The district court held in Scott that the Establishment\\nClause requires “denominational neutrality,” its “prohibition against\\npreferential treatment of religion is ‘absolute,’” and that Muslim inmates “are\\npreferred to Jehovah’s Witnesses with respect to the volunteer policy.” 13 The\\ncourt concluded “[i]f alternative means exist to treat Muslim and Jehovah’s\\nWitness prisoners without favoritism, then the Establishment Clause\\ndemands them.” 14 The district court concluded that injunctive relief based on\\nthe Establishment Clause violation was warranted but did not enter an\\ninjunction at that time. It instead ordered the Executive Director of TDCJ “to\\npropose a method of compliance” within sixty days. 15 The district court’s\\nopinion in Scott observed that “if Muslims regularly engage in communal\\nworship without an approved religious volunteer present, evidence exists that\\nthe government’s rule against Jehovah’s Witnesses’ meetings is not ‘closely\\nfitted’ to the government’s compelling interest in enforcing the [Brown] consent\\ndecree.” 16\\n In the Scott litigation, Scott had also requested injunctive relief under\\nRLUIPA. The district denied that request, reasoning that “the accommodation\\nof an offender’s religious or spiritual needs does not outweigh a prison’s need\\nto maintain order and safety,” 17 that “due deference” is to be given to prison\\nadministrators regarding “good order, security and discipline, consistent with\\nconsideration of costs and limited resources,” and “that a rational connection\\n\\n\\n\\n\\n 12 Id. at *2.\\n 13 Id. at *3.\\n 14 Id. at *8.\\n 15 Id. at *5.\\n 16 Id. at *4.\\n 17 Id. at *6.\\n\\n 5\\n\\n Case: 14-20249 Document: 00515020007 Page: 6 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nexists between” requiring directly supervised religious gatherings “and the\\ngovernment’s legitimate interest in prison security.” 18\\n TDCJ responded to the district court’s decision in Scott by promulgating\\nAdministrative Directive AD-07.30 (rev. 7) (June 30, 2014), which the parties\\nrefer to as the “Scott Plan.” Under the Scott Plan, all religious gatherings of\\nmore than four inmates require direct supervision, including worship and\\nstudies by more than four Muslim inmates. 19 The Scott Plan conflicts with the\\n1977 consent decree that permitted Muslim inmates to congregate with only\\nindirect supervision. Under the Scott Plan, each religious group is permitted\\nto have a group worship service for one hour per week that is directly\\nsupervised by prison staff. Additional group religious activities are permitted\\nif supervised by an outside, authorized volunteer. 20\\n In the present case, and as a result of the district court’s conclusion in\\nthe Scott case that TDCJ had violated the Establishment clause by preferring\\nadherents to the Religion of Islam over the Jehovah’s Witness faith group,\\nTDCJ moved to terminate the 1977 Brown consent decree pursuant to the\\nPLRA. 21 The PLRA provides that “in any civil action with respect to prison\\nconditions in which prospective relief is ordered, such relief shall be terminable\\nupon the motion of any party or intervenor,” if the order has been in effect for\\na certain period of time, unless “the court makes written findings based on the\\nrecord that prospective relief remains necessary to correct a current and\\nongoing violation of the Federal right, extends no further than necessary to\\n\\n\\n\\n\\n 18 Id. at *6.\\n 19 Brown v. Livingston, 17 F. Supp. 3d 616, 619 (S.D. Tex. 2014).\\n 20 Id. at 623; see ROA 3080, 3284-85, 4105.\\n 21 ROA 72-82.\\n\\n 6\\n\\n Case: 14-20249 Document: 00515020007 Page: 7 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\ncorrect the violation of the Federal right, and that the prospective relief is\\nnarrowly drawn and the least intrusive means to correct the violation.” 22\\n Pursuant to provisions of the PLRA, TDCJ’s motion operated as an\\nautomatic stay of the 1977 Brown consent decree, 23 allowing TDCJ to\\nimplement the Scott Plan pending further proceedings in the district court.\\nAccordingly, the direct supervision requirement for all religious groups in\\nTDCJ prisons, including members of the Religion of Islam, went into effect in\\n2013. 24\\n After the implementation of the Scott Plan, Muslim inmates may attend\\na weekly, one-hour Jumu’ah service directly supervised by TDCJ chaplains or\\nemployees, but opportunities for Muslim prisoners to participate in other\\ncommunal worship or studies diminished due to a dearth of Muslim volunteers\\nfrom outside the prison system. 25 Protestant and Catholic prisoners, by\\ncontrast, maintained the ability to engage in group worship or study in\\naddition to the one-hour, weekly service directly supervised by TDCJ-\\nemployees because of a relative abundance of outside volunteers. 26\\n The district court held an evidentiary hearing on TDCJ’s motion to\\ndissolve the 1977 decree. That decree had twenty-two specific provisions,\\ntwenty of which the district court terminated without objection by any party.\\nBut the district concluded that two provisions were necessary to correct current\\nand ongoing violations of the federal Constitution and to give effect to statutory\\nrights of Muslim inmates, effectively rejecting the Scott Plan as it applies to\\n\\n\\n\\n\\n 22 18 U.S.C. § 3626(b)(2)-(3).\\n 23 Id. § 3626(e).\\n 24 ROA 3077.\\n 25 ROA 1951, 1953.\\n 26 ROA 1953.\\n\\n 7\\n\\n Case: 14-20249 Document: 00515020007 Page: 8 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nMuslim inmates. 27 One of the two provisions of the 1977 consent decree that\\nthe district court refused to dissolve, found in section III(15) of the decree,\\nrequired TDCJ officials to “[a]llow adherents to the Religion of Islam at each\\nunit of the Texas Department of Corrections equal time for worship services\\nand other religious activities each week as is enjoyed by adherents to the\\nCatholic, Protestant and Jewish faiths.” 28 The other provision that the district\\ncourt ordered be left intact is found in section III(8) of the consent decree, which\\nrequired TDCJ officials to permit inmates professing adherence to the Religion\\nof Islam to congregate for worship, study, and other religious functions and\\nactivities under the supervision of an inmate leader whenever an ordained\\nIslamic minister is unavailable at a regularly scheduled time for worship and\\nstudy. 29\\n The district court focused on three required practices of the Islamic\\nfaith—Jumu’ah, Taleem, and Qur’anic studies—that necessitate group\\ngathering. 30 The district court concluded that the one hour of direct\\nsupervision per week allotted to the roughly 6,775 Muslim inmates in Texas\\nstate prisons by TDCJ staff under the Scott Plan is not enough time to meet\\nthe requirements of Jumu’ah, Taleem, and Qur’anic studies, 31 and that the\\nnumber of Muslim chaplains employed by the TDCJ, and of available Muslim\\nvolunteers, is insufficient to provide adequate group study and worship. 32 The\\ndistrict court found that by contrast, Christian inmates are able to attend an\\naverage of six hours of religious gatherings per week, due to the large number\\n\\n\\n\\n 27 See ROA 1979-80.\\n 28 ROA 40\\n 29 ROA 36-37.\\n 30 ROA 1956-58.\\n 31 ROA 1951, 1958.\\n 32 ROA 1951, 1958.\\n\\n 8\\n\\n Case: 14-20249 Document: 00515020007 Page: 9 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nof Christian volunteers available to supervise such assemblages directly. 33 The\\ncourt concluded that “Jewish inmates are specifically assigned to units” that\\nare in closer proximity to prospective volunteers, and Native American\\ninmates are assigned to a specifically designated unit to facilitate access to one\\nanother and to enhance Native American religious activities. 34 The TDCJ has\\nnot assigned Muslim prisoners to specifically designated units. 35\\n The district court held that the Scott Plan and its direct supervision\\nrequirement result in violations of three different federal rights. Specifically,\\nthe district court held that the Scott Plan (1) unjustifiably imposes a\\nsubstantial burden on Muslim inmates’ religious exercise, thereby violating\\nRLUIPA; 36 (2) restricts Islamic religious exercise in violation of the Free\\nExercise Clause of the First Amendment; 37 and (3) disfavors Islam and favors\\nother faiths, violating the Establishment Clause of the First Amendment. 38\\nSubsequently, the district court awarded attorneys’ fees in favor of Brown and\\na group of Muslim inmates who intervened in the case (the Inmate Intervenors)\\nas prevailing parties. 39\\n The TDCJ appeals both the district court’s denial of its motion to\\nterminate the consent decree and the award of attorneys’ fees. A motions panel\\nof this court ordered that the district court’s judgment on the merits be stayed\\npending appeal. 40\\n\\n\\n 33 ROA 1953.\\n 34 ROA 1964-65.\\n 35 ROA 1965.\\n 36 ROA 1975-77.\\n 37 ROA 1970-75.\\n 38 ROA 1966-70.\\n 39 ROA 2021.\\n 40 Brown v. Livingston, No. 14-20249, Doc. No. 32 (5th Cir. May 20, 2014); see also\\n\\nBrown v. Livingston, No. 14-20249, Doc. No. 61 (5th Cir. June 5, 2014) (denying\\nreconsideration).\\n 9\\n\\n Case: 14-20249 Document: 00515020007 Page: 10 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n II\\n We have held that “[t]he application of the relevant sections of the PLRA\\nrequires the district court to make a finding of an ongoing constitutional\\nviolation, which is a mixed question of law and fact,” 41 and that “[w]e review\\nmixed questions of law and fact de novo.” 42 with the definite and firm\\nconviction that a mistake has been committed.’” 43\\n III\\n “The PLRA strongly disfavors continuing relief through the federal\\ncourts; indeed, its fundamental purpose was to extricate them from managing\\nstate prisons.” 44 As noted above, prospective relief like the consent decree at\\nissue in this case must be terminated on the motion of any party unless such\\nrelief “remains necessary to correct a current and ongoing violation of the\\nFederal right, extends no further than necessary to correct the violation of the\\nFederal right, and . . . is narrowly drawn and the least intrusive means to\\ncorrect the violation.” 45 The 1977 consent decree applies to the entire TDCJ\\nprison system and “terminates unless the district court makes [the requisite]\\n\\n\\n\\n\\n 41 Castillo v. Cameron Cty., 238 F.3d 339, 347 (5th Cir.2001) (citing Inmates of Suffolk\\nCty. Jail v. Rouse, 129 F.3d 649, 661 (1st Cir. 1997)); see also Ruiz v. United States, 243 F.3d\\n941, 950 (5th Cir. 2001).\\n 42 Castillo, 238 F.3d at 347 (citing Cargill, Inc. v. United States, 173 F.3d 323, 333 n.13\\n\\n(5th Cir. 1999)).\\n 43 Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (quoting United States\\n\\nv. United States Gypsum Co., 333 U.S. 364, 395 (1948)) (alteration in original); id. at 573-74\\n(“If the district court's account of the evidence is plausible in light of the record viewed in its\\nentirety, the court of appeals may not reverse it even though convinced that had it been\\nsitting as the trier of fact, it would have weighed the evidence differently. Where there are\\ntwo permissible views of the evidence, the factfinder's choice between them cannot be clearly\\nerroneous.”).\\n 44 Guajardo v. Tex. Dep’t of Criminal Justice, 363 F.3d 392, 394 (5th Cir. 2004) (per\\n\\ncuriam) (citation and internal quotation marks omitted).\\n 45 18 U.S.C. § 3626(b)(2)-(3).\\n\\n 10\\n\\n Case: 14-20249 Document: 00515020007 Page: 11 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nfindings” and “also finds ongoing, system-wide violations.” 46 We have held that\\n“the burden of proof to support these findings is obviously on the party\\nopposing termination.” 47\\n The district court found violations of RLUIPA, the Free Exercise Clause,\\nand the Establishment Clause. It is important to bear in mind in our analysis\\nthat our focus ultimately remains on the PLRA. No inmate has brought a free-\\nstanding claim that he is entitled to injunctive relief under RLUIPA or the\\nConstitution.\\n The relief granted by the district court was not limited to continuing the\\n1977 Consent Decree in effect. The PLRA does not authorize the district court\\nto expand the consent decree. The district court erred in doing so. The\\nremaining inquiry under the PLRA is whether there is an ongoing violation of\\na federal right.\\n IV\\n We first consider RLUIPA. It states, in relevant part:\\n No government shall impose a substantial burden on the\\n religious exercise of a person residing in or confined to an\\n institution, as defined in section 1997 of this title, even if the\\n burden results from a rule of general applicability, unless the\\n government demonstrates that imposition of the burden on that\\n person—\\n (1) is in furtherance of a compelling governmental interest;\\n and\\n (2) is the least restrictive means of furthering that\\n compelling governmental interest. 48\\n\\n\\n\\n\\n 46 Guajardo, 363 F.3d at 395.\\n 47 Id. at 396.\\n 48 42 U.S.C. § 2000cc-1(a).\\n\\n 11\\n\\n Case: 14-20249 Document: 00515020007 Page: 12 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nRLUIPA prevents government practices that substantially burden the\\nreligious exercise of an inmate unless the practice furthers a compelling\\ngovernmental interest and is the least restrictive means of doing so.\\n Initially, “it falls to the plaintiff to demonstrate that the government\\npractice complained of imposes a ‘substantial burden’ on his religious\\nexercise.” 49 To demonstrate a substantial burden, “the plaintiff must show\\nthat the challenged action ‘truly pressures the adherent to significantly modify\\nhis religious behavior and significantly violate his religious beliefs.’” 50 If the\\ninmate makes this showing, the burden shifts to the government “to show that\\nits action or policy is the least restrictive means of furthering a compelling\\ninterest.” 51 In making this assessment, we must give “due deference to the\\nexperience and expertise of prison and jail administrators in establishing\\nnecessary regulations and procedures to maintain good order, security and\\ndiscipline, consistent with consideration of costs and limited resources.” 52\\nHowever, the Supreme Court has made clear that even when prison\\nregulations are at issue, “RLUIPA requires [courts] to ‘scrutiniz[e] the asserted\\nharm of granting specific exemptions to particular religious claimants’ and ‘to\\nlook to the marginal interest in enforcing’ the challenged government action in\\nthat particular context.” 53\\n The district court held that (1) Muslim prisoners’ religious exercise is\\n“substantially burdened” by the Scott Plan’s direct supervision requirement\\n\\n\\n\\n\\n 49 Adkins v. Kaspar, 393 F.3d 559, 567 (5th Cir. 2004) (citing 42 U.S.C. § 2000cc-2).\\n 50 Garner v. Kennedy, 713 F.3d 237, 241 (5th Cir. 2013) (quoting Adkins, 393 F.3d at\\n570).\\n 51 Chance v. Tex. Dep't of Criminal Justice, 730 F.3d 404, 410 (5th Cir. 2013).\\n 52 Id. (quoting Cutter v. Wilkinson, 544 U.S. 709, 723 (2005)).\\n 53 Holt v. Hobbs, 135 S.Ct. 853, 863 (2015) (quoting Burwell v. Hobby Lobby Stores,\\n\\nInc., 573 U.S. 682, 726-27 (2014)).\\n 12\\n\\n Case: 14-20249 Document: 00515020007 Page: 13 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nbecause it causes them to forgo group religious practices that they sincerely\\nbelieve are required by their faith, 54 (2) the State has failed to prove that the\\npolicy’s application to Muslim prisoners actually advances prison security or\\nany other “compelling governmental interest,” 55 and (3) even if direct\\nsupervision does advance a compelling interest, it is not the least restrictive\\nmeans of doing so. 56 Brown, the Inmate Intervenors, and several amici\\ncontend on appeal that the Scott Plan’s direct supervision requirement imposes\\na substantial burden because it limits Muslim inmates to one hour of group\\nreligious services per week, which, they assert, is insufficient time to complete\\nweekly Jumu’ah, Taleem, and Qur’anic studies as required by their religious\\nbeliefs. They also assert that permitting indirect supervision of these services\\ndoes not raise security issues and that TDCJ could provide direct supervision\\nat little additional cost.\\n TDCJ contends that it is not the direct supervision policy that limits\\nopportunities for Muslim inmates to participate in Taleem and Qur’an Studies\\nbut instead, it is a lack of volunteers to supplement the teaching and worship\\nopportunities supervised by TDCJ Muslim chaplains and TDCJ staff.\\nPrecedent from this court supports such a conclusion. TDCJ’s policy allows\\nMuslim volunteers to conduct services and studies for and with inmates. But,\\nas the district court expressly found, “despite specific and concerted efforts over\\nthe past years to recruit volunteers to participate in Muslim religious activities\\nat the prison, TDCJ has been unsuccessful in securing a significant number of\\nMuslim religious volunteers.” 57\\n\\n\\n\\n 54 ROA 1975-76.\\n 55 ROA 1976-77.\\n 56 ROA 1977.\\n 57 ROA 1953.\\n\\n 13\\n\\n Case: 14-20249 Document: 00515020007 Page: 14 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n This court has considered several challenges under RLUIPA to TDCJ’s\\npolicy that religious worship and study when more than four inmates are\\ninvolved must be directly supervised by a TDCJ employee or a TDCJ-approved\\nvolunteer. 58 In Adkins v. Kaspar, the plaintiff was a member of the Yahweh\\nEvangelical Assembly (YEA). 59 Like the Muslim inmates in the present case,\\nhe complained that the direct supervision requirement, together with a\\nshortage of outside YEA volunteers, deprived him of adequate opportunities\\nfor group religious practice. 60 This court held that the lack of opportunity for\\ngroup religious practice resulted “not from some rule or regulation that directly\\nprohibits such gatherings” but instead “from a dearth of qualified outside\\nvolunteers available to go to [the prison].” 61 We concluded in Adkins that the\\nTDCJ’s policies had not imposed a substantial burden on the plaintiff. 62\\n Subsequently, in Baranowski v. Hart, an inmate had protested the\\nrecurring failure of one of the TDCJ’s prisons to allow for group religious\\nservices on Jewish holy days. 63 This court took note of the fact that on each of\\nthe days on which religious services were not held, “no rabbi or approved\\nreligious volunteer was available to lead the services.” 64 As in Adkins, the\\ncourt held that the lack of volunteers, and not the direct supervision\\nrequirement, caused the religious gatherings to be infrequent, such that “the\\nacts of Defendants regarding religious services have not placed a substantial\\n\\n\\n\\n 58 See, e.g., Mayfield v. Tex. Dep’t Crim. Justice, 529 F.3d 599 (5th Cir. 2008);\\nBaranowski v. Hart, 486 F.3d 112 (5th Cir. 2007); Adkins v. Kaspar, 393 F.3d 559, 571 (5th\\nCir. 2004).\\n 59 393 F.3d at 562.\\n 60 Id. at 562, 571.\\n 61 Id. at 571.\\n 62 Id.\\n 63 486 F.3d at 124-25.\\n 64 Id. at 124.\\n\\n 14\\n\\n Case: 14-20249 Document: 00515020007 Page: 15 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nburden on Baranowski’s free exercise of his Jewish faith, within the\\ncontemplation of RLUIPA.” 65\\n These decisions did not adopt a per se rule. We said in Adkins that\\n“whether the government action or regulation in question imposes a\\nsubstantial burden on an adherent's religious exercise” “requires a case-by-\\ncase, fact-specific inquiry.” 66 In Mayfield v. Texas Department of Criminal\\nJustice, 67 an Odinist submitted affidavits averring that group worship\\nmeetings known as Blotar should be conducted on a monthly basis at a\\nminimum. 68 There was evidence that outside volunteers came only once every\\n18 months to conduct Blotar, and Odinists inmates were “unable to conduct\\nBlotar on a regular basis because the TDCJ requires that they have a security-\\ntrained, religious volunteer present for their group meeting.” 69 But there was\\nalso evidence in Mayfield that the volunteer policy was not imposed uniformly\\nbecause an exception was made for Muslim inmates in order to comply with\\nthe consent decree that is at issue in the case now before us. 70 Pertinent to our\\nanalysis in the present case, we said in Mayfield that “[b]ecause the volunteer\\npolicy was implemented uniformly in the Adkins case, it was not the policy\\nimposing the burden on Adkins’ religious practice, but instead the lack of\\nqualified volunteers.” 71\\n\\n\\n\\n\\n 65 Id. at 125 (citing Adkins, 393 F.3d at 571); see also Odneal v. Pierce, 324 F. App’x\\n297, 302 (5th Cir. 2009) (unpublished) (affirming grant of summary judgment because “the\\ninfrequency of Native American services at the McConnell Unit is due to a dearth of outside\\nvolunteers rather than any regulation directly prohibiting these ceremonies”).\\n 66 393 F.3d at 571.\\n 67 529 F.3d 599 (5th Cir. 2008).\\n 68 Id. at 602.\\n 69 Id.\\n 70 Id. at 608.\\n 71 Id. at 614.\\n\\n 15\\n\\n Case: 14-20249 Document: 00515020007 Page: 16 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n The present case differs materially from Mayfield because in the case\\nbefore us, there is no evidence that “calls into question the uniformity of the\\npolicy’s application.” 72 The direct supervision requirement under the Scott\\nPlan has been imposed uniformly, as it was in Adkins. Accordingly, applying\\nour precedent as we are bound to do, it is not the Scott Plan that has imposed\\na burden on Muslim inmates’ religious exercise. It is the lack of volunteers\\nwho adhere to the faith of Islam.\\n V\\n The district court also held that the Consent Decree remains necessary\\nto remedy ongoing violations of the Free Exercise Clause. 73 The district court\\nrecognized that “the Fifth Circuit Court of Appeals has upheld TDCJ’s\\nvolunteer policy,” citing Baranowski, Adkins, and an unpublished opinion, 74\\nbut concluded that we had done so “on a record very different from the ones in\\nthe present case.” 75 We disagree with the district court’s conclusions in that\\nregard.\\n The district court did not discuss or cite the Supreme Court’s decision in\\nO’Lone v. Estate of Shabazz, 76 in which Muslim inmates brought challenges\\nbased on the Free Exercise clause to “policies adopted by prison officials which\\nresulted in their inability to attend Jumu’ah, a weekly Muslim congregational\\nservice regularly held in the main building” of the prison on Fridays. 77 The\\nprison officials in O’Lone refused to exempt Muslim inmates from working\\n\\n\\n\\n\\n 72 Id.\\n 73 Brown v. Livingston, 17 F. Supp. 3d 616, 632-33 (S.D. Tex. 2014).\\n 74 Id. (citing Baranowski v. Hart, 486 F.3d 112 (5th Cir. 2007); Adkins v. Kaspar, 393\\n\\nF.3d 559 (5th Cir. 2004); and Odneal v. Pierce, 324 Fed. App’x 297 (5th Cir. 2009)).\\n 75 Id.\\n 76 482 U.S. 342 (1987).\\n 77 Id. at 345.\\n\\n 16\\n\\n Case: 14-20249 Document: 00515020007 Page: 17 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\noutside the main building on Friday afternoons, and therefore, they were\\nunable to attend Jumu’ah. The Supreme Court held that this “did not violate\\nrespondents’ rights under the Free Exercise Clause of the First Amendment.” 78\\nThe Supreme Court applied the standard of review set forth in Turner v.\\nSafley, 79 ultimately concluding that “[w]e take this opportunity to reaffirm our\\nrefusal, even where claims are made under the First Amendment, to\\n‘substitute our judgment on . . . difficult and sensitive matters of institutional\\nadministration . . . for the determinations of those charged with the formidable\\ntask of running a prison.” 80\\n Under Turner, we consider:\\n (1) whether a “valid, rational connection exists between the prison\\n regulation and the legitimate governmental interest put forward\\n to justify it,” (2) whether there exist “alternative means of\\n exercising the fundamental right that remain open to prison\\n inmates,” (3) what “impact accommodation of the asserted\\n constitutional right will have on guards and other inmates, and on\\n the allocation of prison resources generally,” and (4) whether there\\n is an “absence of ready alternatives” to the regulation in\\n question. 81\\nApplying these factors to the case presently before us, we cannot agree with\\nthe district court that the TDCJ’s direct supervision requirement fails Turner’s\\nrationality review and violates the Free Exercise clause.\\n A\\n The Supreme Court explained in Turner that in analyzing whether there\\nis a “‘valid, rational connection’ between the prison regulation and the\\n\\n\\n\\n 78 Id.\\n 79 482 U.S. 78 (1987).\\n 80 O’Lone, 482 U.S. at 353.\\n 81 Adkins v. Kaspar, 393 F.3d 559, 564 (5th Cir. 2004) (alteration omitted) (quoting\\n\\nTurner, 482 U.S. at 89-90).\\n 17\\n\\n Case: 14-20249 Document: 00515020007 Page: 18 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nlegitimate governmental interest put forward to justify it, . . . the\\ngovernmental objective must be a legitimate and neutral one.” 82 The Court\\ncontinued, “[w]e have found it important to inquire whether prison regulations\\nrestricting inmates' First Amendment rights operated in a neutral fashion,\\nwithout regard to the content of the expression.” 83 The Scott Plan is uniform.\\nIt applies to all religions, without regard to the what beliefs or principles are\\nheld or espoused. 84\\n The TDCJ contends that the legitimate government interest at stake in\\nimposing the direct supervision requirement is ensuring prison security,\\nespecially in light of the TDCJ’s limited resources. It asserts that direct\\nsupervision, including that undertaken by volunteers, deters wrongful\\nbehavior, and that the direct supervision provided by volunteers differs from\\nthat provided by inmates. Volunteers are more likely to report violations than\\ninmates. These common-sense justifications are sufficient to establish a\\nrational connection between direct supervision and prison security. 85 “[I]t\\ncannot seriously be maintained that ‘the logical connection between the\\nregulation and the asserted goal is so remote as to render the policy arbitrary\\nor irrational.’” 86\\n These justifications are also amply supported by the record,\\nnotwithstanding the district court’s conclusion that direct supervision of\\n\\n\\n\\n 82 Turner, 482 U.S. at 89-90.\\n 83 Id. at 90.\\n 84 See Mayfield v. Tex. Dep’t of Criminal Justice, 529 F.3d 599, 608 (5th Cir. 2008) (“In\\n\\nprior cases where we have affirmed summary judgment on similar § 1983 claims, we have\\nrelied on the neutrality of the prison’s policy in doing so.”).\\n 85 Cf. Jones v. Brown, 461 F.3d 353, 361 (3d Cir. 2006) (“[W]here the connection is\\n\\nobvious, common sense may suffice[.]”).\\n 86 O’Lone v. Estate of Shabazz, 482 U.S. 342, 351 (1987) (quoting Turner v. Safley, 482\\n\\nU.S. 78, 89-90 (1987)).\\n 18\\n\\n Case: 14-20249 Document: 00515020007 Page: 19 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nMuslim services is not necessary to promote safety. The district court’s focus\\nsolely on Muslim services was in error. The question is whether the TDCJ’s\\npolicy, which applies to all inmates, not just Muslim inmates, is rationally\\nconnected to prison security and safety. There is unrefuted evidence that\\nsecurity issues arise during directly supervised worship. It stands to reason\\nthat opportunities for disruption or violence would increase if worship services\\nwere only indirectly supervised. Though the district court refused to permit\\nTDCJ to offer evidence that fights or assaults at services other than Muslim\\nservices had occurred, 87 the record nevertheless establishes that direct\\nsupervision of inmate religious gatherings of more than four individuals\\nfurthers legitimate government interests. The district court’s findings and\\nconclusions to the contrary are not supported by the record or common sense.\\n It is undisputed that when the consent decree regarding Muslim inmates\\nwas in effect, “[a]ll the other faith groups were [directly] supervised,” which\\nmeant a chaplain, volunteer or a correctional officer was in the room with the\\ninmates, “not just someone roving, walking by, checking on them frequently.” 88\\nWhen the consent decree was in effect, TDCJ required direct supervision of the\\nmore than 132,000 non-Muslim inmates. Presently, under the Scott Plan,\\nTDCJ requires direct supervision of all inmates when worshiping because\\notherwise, as a TDCJ employee testified, “we’d have large amounts of offenders\\nmeeting without direct supervision, and anything can happen in a prison,”\\nsuch as “escape attempts,” “staff assaults,” and “inmate assaults.” 89 The\\nevidence is undisputed that offenders with histories of serious criminal conduct\\nattend worship services. “Some of these offenders are G4 offenders that have\\n\\n\\n 87 ROA 2699.\\n 88 ROA 4079-80.\\n 89 ROA 4081.\\n\\n 19\\n\\n Case: 14-20249 Document: 00515020007 Page: 20 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nescape histories, they have assault histories, they’re confirmed gang members\\neven though they’re out in the offender population, they have a history of staff\\nassaults, inmate assaults. You’ve got all these offenders coming into one area\\nof the facility to congregate, and anytime you have a large group of offenders\\nand even sometimes a small group of offenders, that’s areas that we need to\\ndirectly supervise for public safety, for the safety of staff and the safety of the\\ninmate population.” 90\\n There was testimony that having personnel “in there to respond to that\\nwhen something’s happening during a service,” 91 rather than camera\\nsurveillance, is necessary because a person in the room is “getting the tone of\\nthe service or the cell block and watching the offenders, if they’re grouping up\\nor, you know, just how the offenders are acting that particular day,” and\\n“[y]ou’re not going to get that through a video surveillance system.” 92\\n An expert witness who was formerly a warden in Florida testified that\\naltercations occurred during religious services in the units he supervised, some\\nof which involved “a serious incident of bodily harm.” 93 This witness also\\ntestified that if inmates are leading a service, security is needed, and having a\\nperson in the room observing them is the “best form” of security. 94 He also\\nconfirmed that “some offenders have custody levels that make them\\ndangerous”; when they are present in religious services, it is important to have\\nsecurity; and that the “best way” of supervision in those cases is direct\\nsupervision. 95 But more broadly, he testified that in light of his experience, a\\n\\n\\n\\n 90 ROA 4078.\\n 91 ROA 4081.\\n 92 ROA 4042.\\n 93 ROA 2821.\\n 94 ROA 2894.\\n 95 ROA 2894-95.\\n\\n 20\\n\\n Case: 14-20249 Document: 00515020007 Page: 21 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nsecurity presence in the form of a volunteer or a chaplain observing and\\ndirectly supervising the inmates in the service “needs to be there in a religious\\nservice to prevent inmates from conducting any disruptive or criminal activity\\nin a service.” 96\\n A TDCJ Muslim inmate who testified at the hearing confirmed that he\\nhas seen “fights break out” at “church services” other than Muslim services,\\nand that the prison in which he was incarcerated was “locked down” as a result\\nof “fights [that] have taken place in church services.” 97\\n There was also unrefuted testimony from TDCJ that “we have a Prison\\nRape Elimination Act that we have to come into compliance with. There are\\nalmost 50 standards that we’re trying to come into compliance with, and the\\nonly way we can come in compliance with that is to make sure that we have\\nappropriate supervision of our offender population.” 98 Relatedly, the National\\nPrison Rape Elimination Commission Report 6 (June 2009) recommends direct\\nsupervision of inmates should be used “wherever possible” “because it is the\\nmost effective mode of supervision for preventing sexual abuse and other types\\nof violence and disorder.” 99 That Commission made the following finding and\\nrecommendation:\\n Supervision is the core practice of any correctional agency,\\n and it must be carried out in ways that protect individuals from\\n sexual abuse. The Commission believes it is possible to meet this\\n standard in any facility, regardless of design, through appropriate\\n deployment of staff. Direct supervision, which features interaction\\n between staff and prisoners, should be used wherever possible\\n\\n\\n\\n 96 ROA 2903.\\n 97 ROA 2697-98.\\n 98 ROA 4078.\\n 99 Nat’l Prison Rape Elimination Commission Report, 6 (2009), available at\\n\\nhttps://www.ncjrs.gov/pdffiles1/226680.pdf.\\n 21\\n\\n Case: 14-20249 Document: 00515020007 Page: 22 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n because it is the most effective mode of supervision for preventing\\n sexual abuse and other types of violence and disorder. 100\\n The district court’s own findings reflect that if TDCJ were to permit\\nadherents of each faith to gather in groups of more than four with only indirect\\nsupervision, security risks would exist. The district court recognized “there is\\nevidence that the more serious incidents that occurred at or near religious\\nactivities occurred during Catholic and Protestant services even though a\\nChaplain, prison guard, or outside volunteer was present.” 101 Yet, the district\\ncourt concluded that this was not evidence of a need for direct supervision of\\ninmates during religious activities.\\n The district court’s conclusion in this regard appears to be based upon a\\n“Finding of Fact” that the “practice of permitting inmate-led services, as\\ndescribed in the Consent Decree, was the ‘usual’ practice in prison systems.” 102\\nThe district court cited the testimony of three witnesses in support of this\\nconclusion, but read in context, each witness said that in the wake of the\\nConsent Decree in the present case, prisons in some other jurisdictions had\\nadopted the provisions of the Consent Decree for Muslim inmates, not for\\ninmates of other faiths.\\n The district court’s opinion states:\\n McAndrew testified that prisons use methods other than direct\\n supervision to ensure security at religious meetings, such as roving\\n patrols and visual observations through windows. He also testified\\n that, in his experience, the practice of permitting inmate-led\\n services, as described in the Consent Decree, was the “usual”\\n practice in prison systems. 103\\n\\n\\n\\n 100 Id.\\n 101 Brown v. Livingston, 17 F. Supp. 3d 616, 628 (S.D. Tex. 2014).\\n 102 Id.\\n 103 Id.\\n\\n 22\\n\\n Case: 14-20249 Document: 00515020007 Page: 23 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n This is incorrect. McAndrew testified that after the consent decree in\\nthe present case was entered, an unspecified number of prisons used the\\nconsent decree as a model for a policy regarding Muslim inmates and have\\nallowed indirectly supervised, inmate-led religious meetings by Muslim\\ninmates. 104 McAndrew did not testify that indirect supervision is a “usual”\\npractice with regard to any other faith group.\\n The district court also relied upon the testimony of a former Chaplain in\\nNew York, Ibrahim Ezghair. Ezghair recounted that a state prison system less\\nthan half the size of the Texas system had adopted and implemented the terms\\nof the consent decree at issue in the present case and had “experienced no\\nsecurity or safety threats or events involving inmate-led or indirectly\\nsupervised Muslim religious activities.” 105 The district court characterized\\nanother Muslim Chaplain’s testimony, that of Chaplain Shabazz, as saying\\nthat “many prison systems throughout the United States” permit indirect\\nsupervision of inmate-led religious activities by Muslims, and that the witness\\nwas “unaware of any safety concerns.” 106 This evidence is not only conclusory\\nand lacking in specificity, it is myopically focused on Muslim services. It is not\\nevidence that indirect supervision of religious services in prisons as a general\\nproposition presents no safety concerns. None of these witnesses testified that\\nprisons have permitted or reasonably should permit virtually all worship or\\nreligious activities by inmates to occur with only indirect supervision.\\n In a letter to this court, the plaintiffs assert that “the Consent Decree\\nregime is the model followed by penal institutes throughout the nation.” The\\nplaintiffs do not provide any specificity in this regard. They cite to one page in\\n\\n\\n 104 ROA 2792-93.\\n 105 Brown, 17 F. Supp. 3d at 627.\\n 106 Id.\\n\\n 23\\n\\n Case: 14-20249 Document: 00515020007 Page: 24 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nthe district court’s opinion in this case, 107 which in turn relied on conclusory\\ntestimony, just discussed above, from two witnesses regarding indirect\\nsupervision of Muslim religious gatherings adopted by some prison systems in\\nthe wake of the consent decree that is presently at issue. 108 None of that\\ntestimony averred that indirect supervision of religious gatherings for inmates\\nhas been widely accepted or even that indirect supervision of Muslin inmates,\\nadmittedly modeled after the consent decree in the present case, has been\\nwidely accepted.\\n The plaintiffs’ letter to this court also cites an amicus brief by four\\nindividuals who denominate themselves “Former Prison Wardens.” That brief\\nrelates those individuals’ own experiences, which amounts to unsworn\\ntestimony that is not part of the record in this case and is not subject to cross-\\nexamination. In support of the assertion that “monitoring through indirect\\nsupervision is a common method of ensuring security for inmate-led worship,”\\nthe amicus brief cites regulations in four jurisdictions. 109 The existence of such\\npolicies in four states does not establish that the Federal Government, the vast\\nmajority of States, or even a bare majority of the States, have such a policy.\\n We also know from court decisions around the country that at least\\nseventeen other jurisdictions do not permit inmates to gather for religious\\nexercise without direct supervision. 110 “‘While not necessarily controlling, the\\n\\n\\n 107 Brown, 17 F. Supp. 3d at 627.\\n 108 See Brown, 17 F. Supp. 3d at 627.\\n 109 Cal. Code Regs., tit. 15, § 3211(a); 03-201 Me. Code R. Ch. 10, Subs. 24.3, § VI; Kan.\\n\\nAdmin. Regs. 44-7-113; N.Y. Comp. Codes R. & Regs. tit. 9, § 7024.2.\\n 110 See, e.g., Hall v. Sutton, 581 F. App’x 580, 581 (7th Cir. 2014) (Illinois); Turner v.\\n\\nHamblin, 590 F. App’x 616, 619‑20(7th Cir. 2014) (Wisconsin); Bader v. Wrenn, 675 F.3d 95,\\n96 (1st Cir. 2012) (New Hampshire); Hathcock v. Cohen, 287 F. App’x 793, 800‑01 (11th Cir.\\n2008) (per curiam) (Florida); McElhaney v. Elo, 202 F.3d 269, 2000 WL 32036, at *4 (6th Cir.\\nJan. 6, 2000) (Michigan); Manges v. Harman, No. 3:11‑CV‑369 PPS, 2014 WL 5488457, at\\n*10 (N.D. Ind. Oct. 29, 2014); Guess v. McGill, No. 9:13‑cv‑02260‑TLW, 2014 WL 5106735, at\\n 24\\n\\n Case: 14-20249 Document: 00515020007 Page: 25 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\npolicies followed at other well-run institutions would be relevant to a\\ndetermination of the need for a particular type of restriction.’” 111\\n The amicus brief additionally asserts that an expert witness at the\\nhearing, Ron McAndrew, “testified that allowing indirectly supervised, inmate-\\nled services was a ‘usual’ practice in other prison systems.” This is misleading.\\nMcAndrew testified that after the consent decree in the present case was\\nentered, an unspecified number of prisons used the consent decree as a model\\nfor a policy regarding Muslim inmates and have allowed indirectly supervised,\\ninmate-led religious meetings by Muslim inmates. 112 McAndrew did not testify\\nthat this is a “usual” practice with regard to any other faith group.\\n The amicus brief also quotes snippets of testimony from another expert\\nwitness at the hearing, Alexander Taylor, asserting that he “testified that ‘the\\nmost common practice . . . is where the chaplain in the building is able to do\\nthat roving type of observation, sitting in as needed . . . .’” But read in its\\nentirety, that was not the import of Taylor’s testimony. He said a chaplain\\nroving during services “sit[s] in as needed, and sometimes through entire\\nservices.” 113 But more importantly, he testified that though such a roving\\n\\n\\n\\n*10‑11 (D. S.C. Oct. 10, 2014); Leishman v. Patterson, No. 2:11‑CV‑00309 CW, 2014 WL\\n2117543, at *6‑7 (D. Utah May 21, 2014); Vega v. Lantz, No. 3:04CV1215(DFM), 2013 WL\\n6191855, at *5, *8 (D. Conn. Nov. 26, 2013); Ericson v. Magnusson, No. 2:12‑cv‑00178‑JAW,\\n2013 WL 2634761, at *4 (D. Me. June 12, 2013); Howard v. Wiglesworth, No. 5:10cv163‑RHW,\\n2012 WL 3867011, at *5 (S.D. Miss. Sept. 5, 2012); Countryman v. Palmer, No.\\n3:11‑cv‑00852‑ECR‑VPC, 2012 WL 4340659, at *5 (D. Nev. Aug. 7, 2012); De’Lonta v.\\nJohnson, No. 7:11‑cv‑00175, 2012 WL 2921762, at *2 (W.D. Va. Jul. 17, 2012); Montague v.\\nCorr. Corp. of Am., No. 3:10‑cv‑0443, 2011 WL 3476543, at *3 (M.D. Tenn. Aug. 8, 2011);\\nJihad v. Fabian, No. 09‑1604 (SRN/LIB), 2011 WL 1641885, at *19 (D. Minn. Feb. 17, 2011);\\nStrutton v. Meade, No. 4:05CV02022 ERW, 2010 WL 1253715, at *47 (E.D. Mo. Mar. 31,\\n2010); Morrison v. Cook, No. 97‑57‑ST, 1999 WL 717218, at *4‑5 (D. Or. Apr. 27, 1999).\\n 111 Holt v. Hobbs, 135 S.Ct. 853, 866 (2015) (quoting Procunier v. Martinez, 416 U.S.\\n\\n396, 414, n.14 (1974)).\\n 112 ROA 2792-93.\\n 113 ROA 2891.\\n\\n 25\\n\\n Case: 14-20249 Document: 00515020007 Page: 26 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\npractice is employed, “oftentimes” it is “not” the most common practice. 114 He\\nthen explained that “[q]uite frequently” there is “direct supervision, having\\nsomeone physically in the room.” 115 He testified that, in lower security\\ninstitutions, “constant supervision isn’t quite as well practiced.” 116 “[D]irect\\nsupervision, having someone physically in the room, is utilized in religious\\nservices . . . quite frequently.” 117 “[S]pecific circumstances” when direct\\nsupervision is used depends on the custody level of the institution, but even in\\nlower security units, when there are large numbers of inmates, a security\\nofficer would be present:\\n [E]very institution has a profile for the type of custody levels that\\n they embrace. And the higher the custody level, the more difficult\\n the prison population is, the more likely you will have constant\\n supervision.\\n With the less, lower security level institutions, then the\\n constant supervision isn't quite as well practiced. In there, you\\n would have somebody, you know – a chaplain would be there, and\\n the service may take part while the chaplain is moving from room\\n to room. But another reason for the provision of a security officer\\n is simply the numbers. When there are large numbers of inmates,\\n we want to have appropriate supervision. 118\\n Taylor made clear that when he was a chaplain in a Florida prison, there\\nwas indirect supervision in an inmate-led service only “[w]hen there are\\nsmaller services and there is [sic] only a few inmates.” 119 At the time of the\\nhearing, there were 6,775 Muslim inmates 120 in 96 prisons across Texas. 121\\n\\n\\n 114 ROA 2891.\\n 115 ROA 2891.\\n 116 ROA 2892.\\n 117 ROA 2891.\\n 118 ROA 2891-92.\\n 119 ROA 2906.\\n 120 Brown v. Livingston, 17 F. Supp. 3d 616, 622 (S.D. Tex. 2014).\\n 121 Id. at 623.\\n\\n 26\\n\\n Case: 14-20249 Document: 00515020007 Page: 27 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nAveraging the number of inmates across 96 prisons would mean that 70\\nMuslim inmates in each prison would potentially attend services and other\\nreligious activities. We know from some of the findings of the district court\\nthat in at least one prison, in Childress County, there were 53 Muslim\\ninmates. 122 But if only 53 inmates in each prison desired to attend group\\nworship or study, that is a significant number.\\n Taylor also testified that, based on his experience in Texas and Florida,\\nwhen “inmates are leading a service . . . having someone there in person\\nobserving them” would be “the best form” of security. 123 He also confirmed that\\nin services in which “some offenders who have a custody levels that make them\\ndangerous” are present, the “best way” of supervising is “direct supervision.” 124\\nHe summarized and reiterated his opinion that direct supervision “needs to be\\nthere in a religious service to prevent inmates from conducting any disruptive\\nor criminal activity in a service.” 125\\n The district court’s “Findings of Fact” state that “[d]uring the thirty-five\\nyears the Consent Decree was in effect and being adhered to by TDCJ, there\\nhas been no evidence of a single reported or known incident involving a serious\\nsecurity risk to the prison, its staff, inmates or the public at large involving\\ninmate-led Muslim religious activity.” 126 The district court then reasoned that\\n“[i]n other words, adherence to Sections III(8) and III(15) of the Consent\\nDecree,” which exempts only Muslim inmates from direct supervision, “has not\\n\\n\\n\\n\\n 122 Id. at 624.\\n 123 ROA 2894.\\n 124 ROA 2894-2895.\\n 125 ROA 2903.\\n 126 Brown, 17 F. Supp. 3d at 621.\\n\\n 27\\n\\n Case: 14-20249 Document: 00515020007 Page: 28 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\npresented or posed a threat to the security or safety of the institution or the\\npublic.” 127\\n The implicit assumption underlying this ruling, and the plaintiffs’\\narguments, is that Muslim inmates have been relatively peaceful in the past\\nwhen indirectly supervised, and therefore, all present and future Muslim\\ninmates, unlike inmates of other faiths, pose no threat to security, safety or\\norder within the TDCJ system of 111 prisons. Muslim inmates therefore must\\nbe permitted to conduct inmate-led religious gatherings without direct\\nsupervision. This rationale is problematic for at least two reasons: (1) it\\nignores evidence that there is a need for direct supervision of Muslim inmates,\\nand (2) it gives disparate, preferential treatment to Muslim inmates over\\ninmates of other faiths.\\n Courts have recognized that permitting inmates to lead worship services\\nwithout appropriate supervision can create hierarchies that are detrimental to\\na prison’s discipline structure. The Seventh Circuit, for example, has observed\\nthat “allow[ing] inmates to conduct their own religious services [is] a practice\\nthat might not only foment conspiracies but also create (though more likely\\nmerely recognize) a leadership hierarchy among the prisoners.” 128 Relatedly,\\nthe Supreme Court credited testimony in O’Lone v. Estate of Shabazz that\\nallowing “‘affinity groups’ in [a] prison to flourish” leads to “‘a leadership role\\nand an organizational structure that will almost invariably challenge the\\ninstitutional authority’” and that “special arrangements for one group would\\ncreate problems as ‘other inmates [see] that a certain segment is escaping’” a\\nprison requirement applicable to all others. 129 The “affinity group” in O’Lone\\n\\n\\n 127 Id.\\n 128 Johnson-Bey v. Lane, 863 F.2d 1308, 1310 (7th Cir. 1988).\\n 129 482 U.S. 342, 353 (1987).\\n\\n 28\\n\\n Case: 14-20249 Document: 00515020007 Page: 29 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nwas comprised of Muslim inmates seeking exemption from work details on\\nFriday afternoons in order to attend Jumu’ah services. 130\\n In the case before us, there was evidence of hierarchies among Muslim\\ninmates in the TDCJ system. TDCJ Muslims inmates testified “[we would]\\npolice ourselves” 131 when problems arose during inmate-led services that were\\nonly indirectly supervised. Inmate worship leaders would prohibit an inmate\\nwho behaved inappropriately from attending services for a period of time 132\\nand did not report incidents to prison officials because “we take care of\\nourselves.” 133 Accordingly, for those who attended indirectly supervised\\nreligious gatherings, whether a Muslim inmate would be permitted religious\\nexercise was left to the sole discretion of another inmate, and TDCJ officials\\nwere kept unaware of disciplinary issues. It is detrimental to the rights of\\ninmates when they are disciplined by other inmates, and such a system\\nundermines the prison’s disciplinary and oversight functions.\\n The district court did not discuss this evidence. Nor did the district court\\ndiscuss unrefuted evidence that violence occurred during a Muslim worship\\nservice even though that service was directly supervised by a TDCJ employee\\nwho was able to intervene immediately. 134 In another incident, an intense\\nargument among Muslim inmates at a religious gathering resulted in a\\nresponse team from the prison being called due to the potential for violence\\nand harm to those present at the worship service, though no physical injury\\n\\n\\n\\n\\n 130 Id.\\n 131 ROA 2697.\\n 132 ROA 2697.\\n 133 ROA 3818.\\n 134 Def. Ex. 46 (incident occurred on July 31, 2013); see also ROA 3077 (the Scott Plan\\n\\nwent into effect in January 2013).\\n 29\\n\\n Case: 14-20249 Document: 00515020007 Page: 30 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\noccurred before the response team arrived to quell the disorder. 135 There was\\nalso evidence of other disruptions in Muslim religious gatherings that did not\\nresult in physical violence but were disruptions, nevertheless.\\n The district court reasoned that volunteers are not security personnel\\nand “the presence of an outside volunteer [does not] further [TDCJ’s]\\ncompelling state interest in prison security.” 136 The record as a whole does not\\nsupport this conclusion.\\n There was unrefuted testimony that prisons across the country utilize\\nvolunteers to supervise religious exercise by inmates because volunteers do\\nhave a positive impact on maintaining security, safety, and orderliness. 137 An\\nexpert witness testified that, in his opinion, a volunteer or a chaplain “needs\\nto be there in a religious service to prevent inmates from conducting any\\ndisruptive or criminal activity.” 138 This witness also testified that “volunteers\\ndo conduct some of the similar duties like a correctional officer who watches\\noffenders . . . they watch offenders.” 139 Though volunteers do not have to\\npower to discipline or search inmates or physically restrain them, an expert\\nwitness testified that he would be satisfied with volunteer-provided security\\nthrough direct supervision because they can inform staff if something were to\\nhappen within the service “that shouldn’t be happening” and because when a\\n\\n\\n 135 ROA 3816-17; Lemons v. Tex. Dep’t of Criminal Justice, No. 2:09-cv-0102, 2012 WL\\n2133700 at *6 (N.D. Tex. May 17, 2012).\\n 136 Brown v. Livingston, 17 F. Supp. 3d 616, 627 (S.D. Tex. 2014).\\n 137 ROA 4191 (volunteers can directly supervise to gauge whether offenders are\\n\\n“having inappropriate conversations or they’re having a gang meeting or they’re passing\\nnotes, passing contraband, looking for those warning signs”); 4195 (volunteers are trained\\n“about security issues and what to be mindful of and what to look for”); see also Chance v.\\nTex. Dep't of Criminal Justice, 730 F.3d 404, 414-15 & nn.7-8 (5th Cir. 2013) (agreeing that\\nvolunteer supervision serves an important government interest in prison safety and\\nsecurity); McAlister v. Livingston, 348 F. Appx 923, 937 (5th Cir. 2009) (per curiam) (same).\\n 138 ROA 2903.\\n 139 ROA 2923.\\n\\n 30\\n\\n Case: 14-20249 Document: 00515020007 Page: 31 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nvolunteer is present, “the offenders would be more likely to stay with the topic\\nand with what should be said instead of going off on tangents or discussing\\nthings that maybe were not religious in nature.” 140 There was other expert\\ntestimony that a volunteer or chaplain can provide observations during\\nreligious gatherings of inmates as well as a corrections officer can provide\\nobservations. 141\\n TDCJ conducts background checks of volunteers and provides training\\nregarding security issues, what to be mindful of and look for when in an inmate\\npopulation and in services, what to do if a fight or riot erupts. 142 TDCJ\\nvolunteers are trained to report any security breaches to prison officials. 143\\nMuslim inmates attending indirectly supervised religious activities have not\\nalways reported misbehavior or security breaches because of “the offender code\\nand telling on each other and as to labeling each other as a snitch.” 144\\n The district court’s conclusion that “[t]here is no evidence that the\\npresence of a volunteer during a Muslim religious activity at TDCJ increases\\nprison safety or security in any way” 145 failed to consider that the evidence on\\nthis point is limited. The TDCJ inmates who testified regarding Muslim\\nreligious exercise said that, due to the paucity of Muslim volunteers, no\\nvolunteers were in any of the services or religious activities that they\\nattended. 146 The evidence was extremely sparse, if not non-existent, as to the\\nimpact volunteers might have had if they had been available to supervise\\n\\n\\n\\n 140 ROA 3499-500.\\n 141 ROA 4042.\\n 142 ROA 4195.\\n 143 ROA 4036-37.\\n 144 ROA 3716.\\n 145 Brown v. Livingston, 17 F. Supp. 3d 616, 636 (S.D. Tex. 2014).\\n 146 See, e.g., ROA 3262 (“Since my 17 years of being on the Robertson Unit, we have\\n\\nnever had a volunteer that showed up.”); 2627; 2691-92.\\n 31\\n\\n Case: 14-20249 Document: 00515020007 Page: 32 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nMuslim inmates’ religious exercise. As already discussed, because the Muslim\\ninmates “take care of their own,” we do not know what issues arose that could\\nhave been obviated by the presence of volunteers.\\n There is a rational connection between the TDCJ’s indirect supervision\\nrequirement and the governmental interest in providing security in prisons.\\n B\\n As to Turner’s second consideration—Muslim inmates’ “alternative\\nmeans of exercising” their religion beliefs 147—“[t]he pertinent question is not\\nwhether the inmates have been denied specific religious accommodations, but\\nwhether, more broadly, the prison affords the inmates opportunities to exercise\\ntheir faith.” 148 In Adkins we upheld the direct supervision requirement against\\na Free Exercise challenge because the record reflected that “(1) Adkins had\\naccess to religious materials; (2) he and other YEA inmates were not required\\nto work on the Sabbath; (3) video and audio tapes were made available on\\nMondays to all YEA members; and (4) YEA members were permitted to hold\\nand attend live services” when a volunteer was available, approximately\\nmonthly. 149 Here, the record demonstrates, and none of the plaintiffs contest,\\nthat Muslim TDCJ inmates are permitted to attend a weekly Jumu’ah\\nservice, 150 significant accommodations are made for religious festivals such as\\nRamadan, 151 and Muslim inmates are permitted to keep religious objects,\\n\\n\\n\\n 147 Turner v. Safley, 482 U.S. 78, 90 (1987).\\n 148 Adkins v. Kaspar, 393 F.3d 559, 564 (5th Cir. 2004) (alteration in original) (quoting\\nFreeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854, 861 (5th Cir. 2004)); see also O’Lone\\nv. Estate of Shabazz, 482 U.S. 342, 351-52 (1987) (holding, where Muslim inmates “retain[ed]\\nthe ability to participate in other Muslim religious ceremonies,” that inability to attend\\nweekly Jumu’ah service did not violate Free Exercise Clause).\\n 149 Adkins, 393 F.3d at 564.\\n 150 ROA 3284, 3353.\\n 151 ROA 2704-07, 3626-27.\\n\\n 32\\n\\n Case: 14-20249 Document: 00515020007 Page: 33 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nincluding a Qur’an, a prayer rug, and prayer beads, in their cells for personal\\nprayer and study. 152 Muslims inmates may gather in groups of four or fewer\\nto worship and study. All Muslim inmates have access to a diet that conforms\\nto their faith’s restrictions. While Muslim inmates may not be permitted to\\nengage in as many religious gatherings with the numbers of inmates as they\\nwish, we conclude, as in Adkins, that they have alternative means of exercising\\ntheir religious rights.\\n C\\n The third Turner consideration addresses the impact the accommodation\\nsought would have on other inmates and prison staff and on the allocation of\\nprison resources, generally. We conclude, as we did in Adkins, that continuing\\nto allow Muslim inmates the freedom to congregate without direct supervision\\n“could ‘spawn a cottage industry of litigation and could have a negative impact\\non prison staff, inmates and prison resources.’” 153 Furthermore, “if [Muslim\\ninmates] were accommodated and other similarly situated small religious\\ngroups were not, [Islam] could appear to be favored over the others, a\\nperception that could have a negative effect on prison morale and discipline.” 154\\n The evidence was unrefuted that TDCJ is short-staffed in spite of\\nsustained efforts to hire security personnel. 155 The TDCJ offered evidence that\\nthe situation was “critical.” At the time of the hearing, the TDCJ was “3,000\\nofficers short,” and “spending 5 million plus in overtime a month.” 156 In some\\nof the TDCJ’s “units in West and South Texas,” it was “critically short,” and “a\\n\\n\\n\\n\\n 152 ROA 2651, 2695.\\n 153 Adkins, 393 F.3d at 565 (quoting Freeman, 369 F.3d at 862).\\n 154 Id.\\n 155 ROA 4072-73.\\n 156 ROA 4072.\\n\\n 33\\n\\n Case: 14-20249 Document: 00515020007 Page: 34 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nvery serious situation.” 157 “[W]e’re doing all we can, as [others testified], about\\ntrying to recruit new staff,” and “[w]e’re doing all we can to try to retain the\\nstaff that we have on our facilities.” 158 Priority is given to positions such as “a\\ndorm housing rover or a cell block rover, an inside picket officer, . . . central\\ncontrol officer, our outside guard towers, things like that, those things that are\\ncrucial to the safety and security of the institution.” 159 The TDCJ offered\\nevidence that it does not have staff to provide more than one hour of directly\\nsupervised religious activities to all inmates seeking to engage in religious\\nactivities beyond the one-hour weekly services that are directly supervised by\\nTDCJ employees or even solely to Muslim inmates.\\n The district court’s response to this evidence was that the TDCJ should\\ncease training and organizing volunteers for religious gatherings in prisons.\\nBut the costs that would be saved were not quantified, and there was no\\nevidence that requiring TDCJ to cease and desist from permitting volunteers\\nin the prisons would free sufficient time for TDCJ employees to provide an\\nadditional hour of direct supervision of Muslim religious activities each week,\\nmuch less the additional hours that the district court would require. Requiring\\nTDCJ to cease allowing volunteers would also be contrary to the district court’s\\nfinding and unrefuted evidence that volunteers have a substantial, positive\\nimpact on inmates and lessen the potential for violence in the prisons.\\n D\\n The fourth consideration under Turner’s standard of review is whether\\nthere is an absence of ready alternatives to the TDCJ’s direct supervision\\n\\n\\n\\n\\n 157 ROA 4073.\\n 158 ROA 4073.\\n 159 ROA 4073.\\n\\n 34\\n\\n Case: 14-20249 Document: 00515020007 Page: 35 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nrequirement. We have examined alternatives above and do not repeat that\\ndiscussion here.\\n In sum, we conclude that the Scott Plan poses no violation of the Free\\nExercise Clause that would render the consent decree, and its allowance of\\nindirect supervision of Muslim religious gatherings, “necessary to correct a\\ncurrent and ongoing violation of the Federal right.” 160\\n VI\\n The district court concluded that the TDCJ’s regulations and policies\\nfavored Catholic, Jewish, Native American and Protestant inmates over\\nMuslim inmates. 161 Citing the Supreme Court’s decision in Larson v. Valente,\\nwhich involved a state statute imposing registration and reporting\\nrequirements on religious organizations that solicited more than fifty percent\\nof their funds from nonmembers, 162 the district court concluded that “when it\\nis claimed that a prison regulation violates an inmate’s Establishment Clause\\nrights it must be subjected to strict scrutiny analysis and is upheld only if it is\\n‘closely fitted’ to further a ‘compelling government interest.’” 163 The TDCJ\\ncontends that the more deferential standard articulated in Turner v. Safley 164\\napplies. I first consider the appropriate standard for analyzing the inmates’\\nEstablishment Clause claims.\\n A\\n The Supreme Court has not directly addressed the standard of review\\nthat applies when inmates assert a violation of the Establishment Clause, and\\nmore particularly, whether the applicable standard may depend upon the\\n\\n\\n 160 18 U.S.C. § 3626(b)(3).\\n 161 Brown v. Livingston, 17 F. Supp. 3d 616, 630-33 (S.D. Tex. 2014).\\n 162 456 U.S. 228, 230 (1982).\\n 163 Brown, 17 F. Supp. 3d at 632 (quoting Larson, 456 U.S. at 247).\\n 164 482 U.S. 78 (1987).\\n\\n 35\\n\\n Case: 14-20249 Document: 00515020007 Page: 36 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nspecifics of the claim. The Supreme Court has recognized, however, that the\\n“constitutional prohibition of denominational preferences is inextricably\\nconnected with the continuing vitality of the Free Exercise Clause.” 165\\n As discussed in Section V above, O’Lone v. Estate of Shabazz analyzed\\nFree Exercise claims and “consider[ed] once again the standard of review for\\nprison regulations claimed to inhibit the exercise of constitutional rights.” 166\\nIn O’Lone, prison regulations precluded Muslim inmates assigned to outside\\nwork details from attending Jumu’ah. 167 The Third Circuit had held that the\\nprison’s “policies could be sustained only if: ‘the state . . . show[s] that the\\nchallenged regulations were intended to serve, and do serve, the important\\npenological goal of security, and that no reasonable method exists by which\\n[prisoners’] religious rights can be accommodated without creating bona fide\\nsecurity problems.’” 168 The Supreme Court rejected this standard of review.\\n“We think the Court of Appeals[’] decision in this case was wrong when it\\nestablished a separate burden on prison officials to prove ‘that no reasonable\\nmethod exists by which [prisoners’] religious rights can be accommodated\\nwithout creating bona fide security problems.’” 169\\n The Court explained at length in O’Lone why the “reasonableness test”\\nset forth in Turner v. Safley, rather than strict scrutiny, applied. 170 The O’Lone\\ndecision then admonished, “[t]o ensure that courts afford appropriate\\ndeference to prison officials, we have determined that prison regulations\\nalleged to infringe constitutional rights are judged under a ‘reasonableness’\\n\\n\\n\\n 165 Larson, 456 U.S. at 245.\\n 166 482 U.S. 342, 344 (1987).\\n 167 Id. at 347.\\n 168 Id. at 347 (quoting Shabazz v. O’Lone, 782 F.2d 416, 420 (3d Cir. 1986)).\\n 169 Id. at 350 (quoting Shabazz, 782 F.3d at 420)).\\n 170 Id. at 348-350 (quoting Turner v. Safley, 482 U.S. 78, 86-87 (1987)).\\n\\n 36\\n\\n Case: 14-20249 Document: 00515020007 Page: 37 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\ntest less restrictive than that ordinarily applied to alleged infringements of\\nfundamental constitutional rights.” 171 Referring to Turner, the Court said,\\n“[w]e recently restated the proper standard: ‘[W]hen a prison regulation\\nimpinges on inmates’ constitutional rights, the regulation is valid if it is\\nreasonably related to legitimate penological interests.’” 172 The Court\\ncontinued, “[t]his approach ensures the ability of corrections officials ‘to\\nanticipate security problems and to adopt innovative solutions to the\\nintractable problems of prison administration,’ and avoids unnecessary\\nintrusion of the judiciary into problems particularly ill suited to ‘resolution by\\ndecree.’” 173 The regulations at issue in Turner included restrictions on the\\nrights of inmates to marry.\\n However, Turner’s “reasonableness” standard of review does not apply to\\nall claims that prison policies are unconstitutional. The Supreme Court held\\nin Johnson v. California that “strict scrutiny is the proper standard of\\nreview” 174 for “an equal protection challenge” to a state prison’s “policy of\\nracially segregating prisoners in double cells in reception centers for up to 60\\ndays each time they enter a new correctional facility.” 175 The Court observed\\nthat “[w]e have never applied Turner to racial classifications,” and “[w]e think\\nthis unsurprising, as we have applied Turner’s reasonable-relationship test\\nonly to rights that are ‘inconsistent with proper incarceration.’” 176 The\\n\\n\\n\\n 171 Id. at 349 (citation omitted).\\n 172 Id. (quoting Turner, 482 U.S. at 89).\\n 173 Id. (quoting Procunier v. Martinez, 416 U.S. 396, 405 (1974)); see also Shaw v.\\n\\nMurphy, 532 U.S. 223, 228-232 (2001) (analyzing whether inmates possess a First\\nAmendment right to provide legal assistance to other inmates that enhances the protections\\notherwise available under Turner and explaining why they do not).\\n 174 543 U.S. 499, 515 (2005).\\n 175 Id. at 502.\\n 176 Id. at 510 (citations omitted).\\n\\n 37\\n\\n Case: 14-20249 Document: 00515020007 Page: 38 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nSupreme Court held in Johnson that “[t]he right not be discriminated against\\nbased on one’s race is not susceptible to the logic of Turner. It is not a right\\nthat need necessarily be compromised for the sake of proper prison\\nadministration.” 177\\n At least two Circuit Courts of Appeals have applied a standard to certain\\ncategories of Establishment Clause claims that differs from Turner’s standard\\nof review. 178 In those cases, prison officials allegedly coerced inmates to\\nparticipate in a program founded on religious tenets. No one contends that the\\nstandard applied in those cases is appropriately applied to the facts of the\\npresent case.\\n The question before us is whether an inmate’s claim that prison policies\\nafford some faiths more favorable treatment than others implicates “a right\\nthat need [not] necessarily be compromised for the sake of proper prison\\nadministration,” 179 to which strict scrutiny would apply, or whether such an\\nEstablishment Clause claim is instead grounded in “certain privileges and\\nrights [that] must necessarily be limited in the prison context,” 180 to which\\nTurner’s more deferential standard would apply. I conclude that Turner’s\\nstandard applies.\\n The Supreme Court has explained that prison officials are not required\\nto provide “identical facilities or personnel” to “every religious sect or group\\nwithin a prison.” 181 “A special chapel or place of worship need not be provided\\n\\n\\n\\n\\n 177 Id.\\n 178 See, e.g., Jackson v. Nixon, 747 F.3d 537, 541-542 (8th Cir. 2014) (inquiring “‘first,\\nhas the state acted; second, does the action amount to coercion; and third, is the object of the\\ncoercion religious or secular’”) (quoting Kerr v. Farrey, 95 F.3d 472, 479 (7th Cir. 1996)).\\n 179 Johnson, 543 U.S. at 510.\\n 180 Id. (citing O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987)).\\n 181 Cruz v. Beto, 405 U.S. 319, 325 n.2 (1972).\\n\\n 38\\n\\n Case: 14-20249 Document: 00515020007 Page: 39 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nfor every faith regardless of size; nor must a chaplain, priest, or minister be\\nprovided without regard to the extent of the demand.” 182 Nevertheless,\\n“reasonable op[p]ortunities must be afforded to all prisoners to exercise the\\nreligious freedom guaranteed by the First and Fourteenth Amendments\\nwithout fear of penalty.” 183\\n Prison officials, therefore, are required to facilitate opportunities for\\nprisoners to worship or otherwise exercise religious beliefs even though,\\noutside the prison context, such involvement would undoubtedly implicate\\nEstablishment Clause concerns. When policies ostensibly designed to honor\\nthe Free Exercise rights of inmates are challenged on the basis that they\\nviolate the Establishment Clause because the policies favor one or more faith\\ngroups over another, logic demands that Turner’s standard applies. In\\nattempting to accommodate the religious beliefs of varying faith groups in\\ncompliance with the Free Exercise Clause, prison officials must operate within\\na zone of “reasonableness.” If policies meet Turner’s reasonableness standard\\nin effectuating the Free Exercise rights of inmates, then those policies should\\nnot be pruned or eliminated as a result of higher scrutiny under the\\nEstablishment Clause, even if those policies do not treat all faith groups\\nprecisely the same. Prison officials have been accorded some flexibility in\\nproviding Free Exercise opportunities for inmates. Inmates’ opportunities for\\nreligious exercise would be diminished if a more restrictive standard were\\napplied to Establishment Clause claims than is applied to Free Exercise\\nclaims, when the allegation is that preference has been given to inmates of one\\nor more faiths. If prison policies are in fact balanced and meet the Turner\\n\\n\\n\\n 182 Id.\\n 183 Id.\\n 39\\n\\n Case: 14-20249 Document: 00515020007 Page: 40 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nstandard, those policies are vindicating only what the First Amendment\\nrequires, and such policies do not amount to government involvement in\\nreligious matters to such an extent that the Establishment Clause is violated.\\n The district court concluded that the TDCJ violated the Establishment\\nClause in three ways.\\n B\\n The district court observed that there “is an ample supply of clerics and\\nlaymen who will volunteer to conduct meetings” for some faith groups, “but\\nthat among Muslims it has been hard to find a consistent supply of such\\nvolunteers.” 184 The district court concluded that, “[i]n such circumstances, a\\npolicy that makes the availability of religious activities dependent upon the\\navailability of outside volunteers necessarily makes it easier for one group to\\npractice its religion over other groups.” 185 Relatedly, the district court\\nconcluded that “TDCJ openly favors the Protestantism [sic] and disfavors\\nIslam by devoting state resources to the former disproportionately.” 186 The\\ndistrict court reasoned that “TDCJ has chosen to allocate substantially more\\nresources to religious groups who can procure outside volunteers than for those\\nwho are unable to recruit sufficient numbers of outside volunteers to comply\\nwith AD 7.30.” 187 The record is clear, however, that the disparity as to\\nresources expended is a function of the number of volunteers, not their\\nreligious affiliations.\\n There is a “valid, rational connection” between permitting volunteers to\\nprovide additional opportunities for the exercise of religious rights and “the\\n\\n\\n\\n 184 Brown v. Livingston, 17 F. Supp. 3d 616, 631 (S.D. Tex. 2014).\\n 185 Id.\\n 186 Id.\\n 187 Id.\\n\\n 40\\n\\n Case: 14-20249 Document: 00515020007 Page: 41 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nlegitimate governmental interest” 188 of prison officials in complying with their\\nobligation to afford “reasonable op[p]ortunities . . . to all prisoners to exercise\\nthe religious freedom guaranteed by the First and Fourteenth\\nAmendment[s].” 189 “[T]he governmental objective” in permitting volunteers\\ninto the TDCJ prisons to provide or assist with religious services and studies\\nis “a legitimate and neutral one” that “operate[s] in a neutral fashion, without\\nregard to the content of the expression.” 190 The record is replete with evidence\\nthat inmates who participate in religious services and studies are less likely to\\nhave disciplinary issues while confined and have lower recidivism rates once\\nreleased. The fact that more volunteers in the TDCJ system were Protestant\\nor Catholic than Muslim was not due to any policy of the TDCJ. The TDCJ\\nmade efforts to recruit more Muslim volunteers, and Muslims who volunteered\\nwere treated the same as other volunteers.\\n The second Turner factor is “whether there are alternative means of\\nexercising the right that remain open to prison inmates.” 191 The Muslim\\ninmates who are the plaintiffs in this case do not seek to eliminate the\\nvolunteer policy as violative of the Establishment Clause. Nor do they ask that\\nadditional training and resources be provided to Muslim volunteers. The\\nplaintiffs instead seek an order permitting all Muslim inmates to gather in\\ngroups of more than four without direct supervision by prison employees or a\\nvolunteer. That would not vindicate the right to have a state actor cease\\nexcessive entanglement with religion. 192 What the plaintiffs seek indicates\\nthat their complaints regarding the volunteer policy and resources devoted to\\n\\n\\n 188 Turner v. Safley, 482 U.S. 78, 89 (1987).\\n 189 Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972).\\n 190 Turner, 482 U.S. at 90 (citations omitted).\\n 191 Id.\\n 192 See generally Lemon v. Kurtzman, 403 U.S. 602, 613 (1971).\\n\\n 41\\n\\n Case: 14-20249 Document: 00515020007 Page: 42 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nimplementing volunteers’ access to inmates is not grounded in the\\nEstablishment Clause. If the volunteer policy were eliminated or fewer\\nresources were expended to support volunteer efforts, inmates, including\\nMuslim inmates, would have fewer opportunities for worship and religious\\nstudy.\\n The third Turner “consideration is the impact accommodation of the\\nasserted constitutional right will have on guards and other inmates, and on\\nthe allocation of prison resources generally.” 193 “When accommodation of an\\nasserted right will have a significant ‘ripple effect’ on fellow inmates or on\\nprison staff, courts should be particularly deferential to the informed discretion\\nof corrections officials.” 194 If the volunteer policy were eliminated as violative\\nof the Establishment Clause, inmates would be adversely impacted, but\\nresources would no longer be spent by the TDCJ to implement the volunteer\\nprogram.\\n The final Turner consideration is that “the absence of ready alternatives\\nis evidence of the reasonableness of a prison regulation.” 195 “By the same\\ntoken, the existence of obvious, easy alternatives may be evidence that the\\nregulation is not reasonable, but is an ‘exaggerated response’ to prison\\nconcerns.” 196 The alternatives to allowing volunteers into the TDCJ prisons to\\nfacilitate religious worship and study include excluding the volunteers or\\npaying other individuals to replace them. The first alternative would, as\\ndiscussed, reduce inmates’ religious exercise. The second would require\\nconsiderable expenditures.\\n\\n\\n\\n 193 Turner, 482 U.S. at 90.\\n 194 Id. (citation omitted).\\n 195 Id. (citing Block v. Rutherford, 468 U.S. 576, 587 (1984)).\\n 196 Id.\\n\\n 42\\n\\n Case: 14-20249 Document: 00515020007 Page: 43 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n When assessed under the Turner considerations, the volunteer policy\\nand the resources expended to implement it are reasonably related to the\\nTDCJ’s obligation to afford inmates reasonable opportunities to exercise\\nreligious freedom.\\n The district court erred in applying strict scrutiny to the claim that the\\nvolunteer policy violates the Establishment Clause because fewer Muslims\\nvolunteer than Protestants or Catholics and more resources are devoted to\\nProtestant and Catholic volunteers than Muslim volunteers. The TDCJ’s\\npolicies are facially neutral. The Larson v. Valente decision, 197 on which the\\ndistrict court relied, 198 explains that strict scrutiny does not “apply to laws\\naffording a uniform benefit to all religions.” 199 Seven years after Larson was\\ndecided, the Supreme Court reiterated, “Larson teaches that, when it is\\nclaimed that a denominational preference exists, the initial inquiry is whether\\nthe law facially differentiates among religions. If no such facial preference\\nexists, we proceed to apply the customary three-pronged Establishment Clause\\ninquiry derived from Lemon v. Kurtzman.” 200 The Lemon inquiry does not\\nemploy strict scrutiny. 201 However, for the reasons considered above, we\\nconclude that Turner, rather than Lemon, provides the proper standard of\\nreview.\\n\\n\\n 197 456 U.S. 228 (1982).\\n 198 Brown v. Livingston, 17 F. Supp. 3d 616, 630 (S.D. Tex. 2014).\\n 199 Larson, 456 U.S. at 252.\\n 200 Hernandez v. C.I.R., 490 U.S. 680, 695 (1989) (citing Larson, 456 U.S. at 252); see\\n\\nalso In re Navy Chaplaincy, 738 F.3d 425, 430 (D.C. Cir. 2013) (“As the challenged policies\\nare facially neutral, Larson doesn’t trigger strict scrutiny, and we proceed to Lemon.”);\\nKoenick v. Felton, 190 F.3d 259, 264 (4th Cir. 1999) (“Strict scrutiny in the Establishment\\nClause context is to be used to evaluate only those statutes that facially discriminate between\\nreligious denominations or between religion and non-religion.”) (citing Hernandez, 490 U.S.\\nat 695).\\n 201 See, e.g., Larson, 456 U.S. at 252 (“the Lemon tests . . . do not reflect the same\\n\\nconcerns that warranted the application of strict scrutiny.”).\\n 43\\n\\n Case: 14-20249 Document: 00515020007 Page: 44 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n Brown argues that we should apply the Lemon test. The Supreme Court\\nhas observed that “just two years after Lemon was decided, we noted that the\\nfactors identified in Lemon serve as ‘no more than helpful signposts,’” 202 and\\n“[m]any of our recent cases simply have not applied the Lemon test.” 203 The\\nSupreme Court then proceeded to apply an “analysis . . . driven both by the\\nnature of the monument and by our Nation's history” to a claim that a Ten\\nCommandments monument displayed on the grounds of the Texas capitol\\nviolated the Establishment Clause. 204 The Supreme Court did not apply either\\nstrict scrutiny or the Lemon factors. 205\\n My conclusion that the Turner v. Safley standard of review 206 applies,\\nrather than the Lemon v. Kurtzman criteria, 207 is informed by these\\nprecedents. Additionally, if applied literally, the criteria set forth in Lemon\\n\\n\\n\\n 202 Van Orden v. Perry, 545 U.S. 677, 686 (2005) (citations omitted); but see McCreary\\nCounty v. ACLU of Ky., 545 U.S. 844, 859-66 (2005) (applying the Lemon factors to displays\\nof the Ten Commandments on the walls of state courthouses, concluding that the purpose of\\nthe displays was not secular and therefore violated the Establishment Clause).\\n 203 Van Orden, 545 U.S. at 686 (citations omitted).\\n 204 Id.\\n 205 See also Am. Legion v. Am. Humanist Ass’n, 588 U.S. ___, slip op. at *12-13 (2019)\\n\\n(opinion of ALITO, J.) (plurality opinion) (“Lemon ambitiously attempted to distill from the\\nCourt’s existing case law a test that would bring order and predictability to Establishment\\nClause decisionmaking. . . . If the Lemon Court thought that its test would provide a\\nframework for all future Establishment Clause decisions, its expectation has not been met.”\\n“As Establishment Clause cases involving a great array of laws and practices came to the\\nCourt, it became more and more apparent that the Lemon test could not resolve them.”); id.\\nat *24-25 (“While the Lemon Court ambitiously attempted to find a grand unified theory of\\nthe Establishment Clause, in later cases, we have taken a more modest approach that focus\\non the particular issue at hand and looks to history for guidance.”).\\n 206 482 U.S. 78, 89-90 (1987).\\n 207 403 U.S. 602, 612-613 (1971) (“Every analysis in this area must begin with\\n\\nconsideration of the cumulative criteria developed by the Court over many years. Three such\\ntests may be gleaned from our cases. First, the statute must have a secular legislative\\npurpose; second, its principal or primary effect must be one that neither advances nor inhibits\\nreligion; finally, the statute must not foster ‘an excessive government entanglement with\\nreligion.’”) (citations omitted).\\n 44\\n\\n Case: 14-20249 Document: 00515020007 Page: 45 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nare in tension with the obligation the Supreme Court has said prison officials\\nhave to afford inmates opportunities to attend religious services and pursue\\nreligious studies. The second Lemon criterion is that the regulation’s\\n“principal or primary effect must be one that neither advances nor inhibits\\nreligion.” 208 Prison policies that provide opportunities for inmates to worship\\nand pursue religious studies have the purpose of facilitating inmates’ exercise\\nof First and Fourteenth Amendment Free Exercise rights and advance religion\\nfor those inmates who choose to participate. It is difficult to see how the\\nSupreme Court’s jurisprudence could be construed to require prison officials to\\nfacilitate religious services and studies and at the same time, to deem prison\\nofficials in violation of the Establishment Clause if they do facilitate such\\nreligious activities.\\n The Lemon factors could arguably be applied with the acknowledgement\\nthat prison officials have an obligation grounded in the First and Fourteenth\\nAmendments to afford inmates reasonable opportunities to exercise their\\nreligious beliefs. Viewed through that lens, the secular purpose of a direct\\nsupervision policy, when applied to secular as well as religious gatherings, is\\nto maintain safety and security within a prison. The secular purpose of\\ntraining volunteers who facilitate religious activities or who supervise inmates\\nconducting or participating in religious pursuits is to comply with the\\nconstitutional obligation to provide inmates reasonable opportunities to\\nengage in the free exercise of their religious beliefs. Viewed in light of this\\noverarching obligation, the direct supervision policy and the training of\\nvolunteers is facially neutral and neither advances nor inhibits any particular\\nfaith. Here again, it is the paucity of Muslim volunteers as compared to\\n\\n\\n 208 Id.\\n 45\\n\\n Case: 14-20249 Document: 00515020007 Page: 46 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nChristian volunteers that results in Christian inmates having more\\nopportunities for religious exercise. As to the third Lemon factor, a facially\\nneutral policy that provides reasonable opportunities for inmates to exercise\\ntheir religious beliefs is not excessive governmental entanglement with\\nreligion.\\n C\\n The district court additionally determined that Jewish and Native\\nAmerican inmates were housed in a manner that facilitates the exercise of\\ntheir religious beliefs, while Muslim inmates were not. The district court\\nconcluded this violated the Establishment Clause:\\n The fact that Jewish inmates are assigned to four particular\\n units within the prison system specifically to bring them closer to\\n Jewish religious volunteers and that Native American inmates are\\n assigned to housing units specifically selected to make religions\\n [sic] activities more available to them, while TDCJ makes no effort\\n to house Muslim inmates in units close to the population centers\\n where Muslim volunteers might be recruited, constitutes a clear\\n violation of the Establishment Clause. Prison officials are\\n deliberately favoring Jewish and Native American inmates over\\n Muslim inmates by facilitating their access to religious activities.\\n Thus, TDCJ has intentionally made it easier for Jewish inmates\\n over Muslim inmates to have volunteer-led religious activities.\\n That circumstance alone, in and of itself, constitutes a violation of\\n the Establishment Clause.” 209\\n\\n\\n 209Brown, 17 F. Supp. 3d at 631 (citations omitted). Relatedly, the district court found\\nor concluded:\\n The TDCJ’s inmate assignment policy has not been neutrally applied. To the\\n contrary, unlike Muslim inmates, Jewish inmates are specifically assigned to\\n units in order that they are closer to prospective volunteers. The TDCJ has\\n four units designated for Jewish inmates and Jewish inmates are intentionally\\n located in places where the largest number of Jews reside so as to enhance the\\n opportunity for Jewish inmates to interact with Jewish citizens in religious\\n activities. Likewise, Native American inmates are assigned to a specifically\\n designated unit to facilitate access to each other and to enhance Native\\n American religious activities. By contrast, there are no units designated as\\n 46\\n\\n Case: 14-20249 Document: 00515020007 Page: 47 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n The record does not support the conclusion that the TDCJ’s policies have\\nresulted in greater access to religious exercise for Jewish and Native American\\ninmates as compared to Muslim inmates. There are proportionately more\\nMuslim volunteers than Jewish or Native American volunteers. Nor does the\\nevidence support a conclusion that large numbers of Jewish or Native\\nAmerican inmates are concentrated in a few prison units, even though it is\\nundisputed that four prison units were designated as “Jewish. Nor is there\\nsupport in the record for the inmates’ assertion that Jewish and Native\\nAmerican inmates had more religious services or more access to religious\\nactivities than Muslim inmates. I consider the evidence as to each of the\\ndistrict court’s findings or conclusion in more detail.\\n 1\\n The TDCJ classified nine faith groups 210 as comprising the category of\\n“Jewish” inmates in May 31, 2013, for purposes of providing information to the\\nparties and the district court in this litigation. That evidence, on which all\\nparties rely, reflects that as of May 31, 2013, there were 922 Jewish inmates\\nhoused in 95 of 117 TDCJ prison units. At that time, there were no Jewish\\nchaplains, 211 no certified volunteer chaplains’ assistants, 212 “one contract\\nJewish Chaplain[],” 213 and 15 Jewish or Hebrew volunteers. 214 That is a ratio\\nof one chaplain or volunteer to approximately 58 inmates. Though the district\\n\\n\\n\\n Muslim units in close proximity to Muslim citizen volunteers—that\\n consideration was not contemplated by TDCJ in assigning Muslim inmates to\\n housing units. Id. at 629-30.\\n 210 See Parties Joint Ex. 15 (reflecting nine faiths identified by inmates, Nazarite,\\n\\nJewish, Hebrew, Hebrew Israelite, Orthodox Jew, Shaivite, Kabbalah, Orthodox Hebrew,\\nand Reformed Jewish, as collectively comprising 922 “Jewish” inmates).\\n 211 Parties Joint Ex. 13.\\n 212 Parties Joint Ex. 19.\\n 213 Brown v. Livingston, 17 F. Supp. 3d 616, 622 (S.D. Tex. 2014).\\n 214 Parties Joint Ex. 18.\\n\\n 47\\n\\n Case: 14-20249 Document: 00515020007 Page: 48 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\ncourt concluded that “Jewish inmates are specifically assigned to units in order\\nthat they are closer to prospective volunteers,” 215 if that were the intent (and\\nthere is no evidence that it was), then significant numbers of Jewish volunteers\\ndid not materialize.\\n By comparison, the undisputed TDCJ data reflects there were 6,775\\nMuslim inmates (comprised of 12 different Muslim faith groups identified by\\nTDCJ inmates) as of May 31, 2013, 216 who were confined in 113 of the 117\\nTDCJ units. 217 There were five Muslim chaplains as of that date, 218 no certified\\nvolunteer chaplain’s assistants, 219 and 222 Muslim volunteers. 220 That results\\nin a ratio of one volunteer or chaplain to approximately 30 Muslim inmates.\\n A TDCJ employee testified that there have been four units designated\\nfor “Jewish” inmates, 221 and one of these was also a “Kosher” unit. 222 The\\nrecord is sparse as to why four units were designated as “Jewish”, and there is\\nno evidence in the record as to how inmates are chosen to be assigned there.\\nThe record reflects that the Wynne Unit was designated as a Jewish unit, but\\nthe names of the other three units do not appear in the record. A Muslim\\nchaplain and a non-Roman Catholic chaplain were the two chaplains assigned\\nto the Wynne Unit. 223 It housed 2592 inmates who had expressed a faith\\npreference, of whom 28 were Jewish (approximately 1%), 135 were Muslim\\n(approximately 5.2%), and 48 were Native American (1.6%). 224 The Muslim\\n\\n\\n 215 Brown, 17 F. Supp. 3d at 629.\\n 216 Parties Joint Ex. 15.\\n 217 Parties Joint Ex. 16.\\n 218 Parties Joint Ex. 14.\\n 219 Parties Joint Ex. 19.\\n 220 Parties Joint Ex. 18.\\n 221 ROA 3214.\\n 222 ROA 3214.\\n 223 Parties Joint Ex. 13.\\n 224 Parties Joint Ex. 16.\\n\\n 48\\n\\n Case: 14-20249 Document: 00515020007 Page: 49 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nchaplain testified that he did not know whether the reason that the Wynne\\nUnit was designated as a “Jewish” unit was so that “volunteers might be more\\navailable to the urban areas.” 225 He said that it was his responsibility to “make\\nsure” that the Jewish inmates at the Wynne Unit “have their services” and\\n“their holidays” and that “if they have any problem, they come to me.” 226\\n As to the other three “Jewish” units, it is clear that none of them housed\\na large percentage of Jewish inmates. From an analysis of the Parties Joint\\nExhibit 16, it can be determined that at most, 21% of the 922 Jewish inmates\\n(as many as 196) were housed within four units designated for Jewish\\ninmates. 227 The remaining 79% or more of Jewish inmates were housed in 94\\nother TDCJ units.\\n There was testimony that an unspecified number of Native Americans\\nhave been assigned to an unspecified number of units to make communal\\nworship feasible. 228 As of May 31, 2013, there were 4,473 Native American\\ninmates 229 housed in 108 of 117 TDCJ units. 230 Native American inmates were\\nwidely distributed among these units. 231 They were not concentrated in a\\nsmall number of prison units. There was one Native American chaplain, 232 no\\ncertified volunteer chaplain’s assistant, 233 and there were six Native American\\n\\n\\n 225 ROA 3784.\\n 226 ROA 3784.\\n 227 Parties Joint Ex. 16. The record reflects that the Wynne Unit was designated for\\n\\nJewish inmates (ROA 3784), but does not identify the other three designated units. There\\nwere 28 Jewish inmates housed in the Wynne Unit. Even assuming that the three designated\\nunits other than the Wynne Unit were those with the largest populations of Jewish inmates,\\nthen, at most, the number of Jewish inmates housed in “designated” units was 196 out of 922\\nJewish inmates, approximately 21%.\\n 228 ROA 3215-16.\\n 229 Parties Joint Ex. 15.\\n 230 Parties Joint Ex. 16.\\n 231 Parties Joint Ex. 16.\\n 232 Parties Joint Exs. 13 and 14.\\n 233 Parties Joint Ex. 19.\\n\\n 49\\n\\n Case: 14-20249 Document: 00515020007 Page: 50 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nvolunteers. 234 That results in a ratio of 1 chaplain or volunteer to 744 Native\\nAmerican inmates. Native American inmates had access to far fewer chaplains\\nand volunteers than Muslim inmates.\\n The district court concluded that TDCJ had assigned “Muslim inmates[]\\nprimarily to housing units that are long distances from population centers\\nwhere a significant numbers [sic] of Muslim civilians reside.” 235 The district\\ncourt detailed evidence of the number of Muslim inmates confined in particular\\ncounties as compared to the Muslim populations in those counties. 236 The\\ndistrict court concluded, “[w]hether it is the intent of the TDCJ to assign\\nMuslim inmates to areas in the state where Muslim volunteers do not reside\\nthat, nevertheless, is the effect of unit assignments.” 237 These findings imply\\nthat TDCJ could and should house Muslims in prison units closer to larger\\npopulations of Muslims. But there is no evidence that there are any TDCJ\\nprison units that are close to larger populations of Muslims or that it is\\nphysically feasible to house 6,775 Muslim inmates near larger populations of\\nMuslims.\\n Brown’s brief in this court implicitly acknowledges that none of Texas’s\\nprison units are located near Muslim residents. Brown asserts that the TDCJ\\nhas “construct[ed] . . . prison units in areas where there are plentiful Christian\\nvolunteers but virtually no Muslim residents anywhere close.” But there is\\nabsolutely no evidence that the State of Texas has chosen prison locations\\nbased on faith preferences of inmates, the proximity of civilian populations of\\nparticular faiths, or to create distances from Muslim civilian populations.\\n\\n\\n\\n 234 Parties Joint Ex. 18.\\n 235 Brown v. Livingston, 17 F. Supp. 3d 616, 623 (S.D. Tex. 2014).\\n 236 Id. at 623-24.\\n 237 Id. at 623.\\n\\n 50\\n\\n Case: 14-20249 Document: 00515020007 Page: 51 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n 2\\n The evidence does not support the conclusion that the assignment of\\nsome Jewish and Native American inmates to particular units resulted in\\ngreater access to chaplains or volunteers than was available to Muslim\\ninmates. I will nevertheless assume that the TDCJ intentionally assigned\\nsome number of Jewish and Native American inmates to specific prison units\\nto facilitate the exercise of their respective religious beliefs but did not do so\\nfor any Muslim inmates.\\n The first consideration under Turner is whether such a policy has a valid,\\nrational connection to the governmental interest in providing reasonable\\nopportunities for all inmates to exercise their religious freedom rights. As\\npreviously noted, the Supreme Court has recognized that prison officials are\\nnot required to provide “identical facilities or personnel” to “every religious sect\\nor group within a prison.” 238 Jewish and Native American volunteers were\\neven more scarce than Muslim volunteers. There were no Jewish chaplains,\\nonly one paid outside Jewish chaplain, and there was one Native American\\nChaplain. Assigning some Jewish inmates and some Native American inmates\\nto specific prison units to facilitate the opportunity for religious exercise for\\nthose inmates, was reasonable.\\n The second Turner consideration is whether there are alternative means\\nfor Muslim inmates to exercise their Establishment Clause rights.\\nEliminating any favoritism that might have been shown to Muslim inmates is\\nnot the remedy that the plaintiffs seek. Nor is there evidence that, had Muslim\\ninmates been housed differently, their opportunities for religious exercise\\nwould have been increased.\\n\\n\\n 238 Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972).\\n 51\\n\\n Case: 14-20249 Document: 00515020007 Page: 52 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n The evidence is silent as to the third Turner consideration, which is the\\nimpact on guards, other inmates, or the allocation of prison resources\\ngenerally. With regard to the fourth Turner factor, it does not appear that\\nceasing to assign Jewish and Native American inmates in the way that the\\nTDCJ has done would either decrease the “favoritism” shown to those inmates\\nor increase Muslim inmates’ opportunities to worship and study. There is no\\nevidence that Jewish or Native American inmates enjoyed more than one hour\\nof worship each week, or its equivalent. The number of Muslim volunteers\\nexceeded the relative number of Jewish and Native American volunteers even\\nunder the TDCJ’s existing housing policies, and there is no indication that\\nchanging that policy would have any effect other than reducing the\\nopportunities for religious exercise by Jewish and Native American inmates.\\n The TDCJ’s housing policies do not fail Turner’s rationality review. The\\npolicy does not violate the Establishment Clause.\\n D\\n Brown argues that the direct supervision policy applies only to religious\\nactivities and not to secular ones within TDCJ’s prisons and therefore, that the\\ndirect supervision policy violates the Establishment Clause. The district court\\ndid not ground its finding of an Establishment Clause violation on such a basis.\\n Brown contends, without any record citations, that band, choir practice,\\ncraft shop, and Safe Prison Program classes are indirectly supervised. As a\\nfactual matter, the evidence reflects that secular activities in prisons that are\\nnot directly supervised almost invariably involve inmates who have been\\nscreened for disciplinary violations. Religious gatherings, by contrast, involve\\ninmates with varying security classifications. Applying the Turner\\nconsiderations, there was no Establishment Clause violation.\\n\\n\\n 52\\n\\n Case: 14-20249 Document: 00515020007 Page: 53 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n The first Turner inquiry is whether there is a “‘valid, rational\\nconnection’ between the prison regulation and the legitimate governmental\\ninterest put forward to justify it.” 239 Two inmates testified that two craft shops\\nat the Robertson Unit were indirectly supervised. 240 However, another witness\\ntestified that craft shops are directly supervised, 241 and the unrefuted\\ntestimony was that all inmates in all craft shops were “screened very\\nclosely.” 242 Being allowed to go to craft shop was “a kind of a privilege,” and\\n“craft shop privileges” could be lost due to disruptive conduct. 243 The evidence\\nreflects that “[t]here’s a big difference between craft shop and religious\\nservices.” 244 The evidence was undisputed that TDJC “screen[s] all the\\noffenders in the craft shop . . . very closely,” but “these offenders going to all\\nthese religious services all across the unit in different custodies” are “not\\nscreened and they have gang tendencies and staff assault histories and\\nweapons possessions.” 245 There is therefore “a greater propensity for violence\\nin [TDCJ’s] open-call services than these other faith groups that are directly\\nsupervised now.” 246 Muslim inmates who attend Jumu’ah are not screened\\nbased on disciplinary criteria or offender category.\\n There was evidence that at one prison in the TDCJ system, the\\nRobertson Unit, a Christian choir was permitted to practice in a multi-purpose\\nroom with an officer stationed outside, looking in through a window that went\\n\\n\\n\\n 239 Turner v. Safley, 482 U.S. 78, 89 (1987) (quoting Block v. Rutherford, 468 U.S. 576,\\n586 (1984)).\\n 240 ROA 2666; 3252-3253; 3264-3267; 4060.\\n 241 ROA 4058-4060.\\n 242 ROA 4176.\\n 243 ROA 4175-76.\\n 244 ROA 4176.\\n 245 ROA 4176.\\n 246 ROA 4176.\\n\\n 53\\n\\n Case: 14-20249 Document: 00515020007 Page: 54 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nfrom the ceiling to waist level. 247 This occurred for a ten-year period, but choir\\npractice was discontinued by an assistant warden. 248 The record is silent as to\\nwhether these inmates were screened based on their disciplinary records or\\noffender category.\\n With regard to dormitories, the evidence reflected that “dormitory\\noffenders are screened. They’re some of [TDCJ’s] best offenders and they’re\\nnot coming from all over the facility.” 249 There was also testimony that\\n [t]he offenders in the dorm housing area are around each other\\n every day, day in and day out, when they’re not working . . . . The\\n offenders that go to programmatic activities such as religious\\n services, they don’t have access to each other every day. So, you’re\\n more concerned about gatherings that bring offenders from\\n different areas of the facility because of things that they could be\\n doing that is not appropriate for whatever the program is, whether\\n it be religious or education or whatever. 250\\n A TDCJ witness testified that other than some of the craft shops and\\ndormitories, there are no situations in which indirect supervision is used. 251 A\\nTDCJ witness testified that inmates are directly supervised when they are in\\noutdoor recreation areas and when in day rooms engaging in other secular\\nactivities. 252\\n There is a rational connection between the direct supervision policy for\\nreligious gatherings of more than four inmates and the legitimate\\ngovernmental interest in safety and security in prisons. The evidence of\\n\\n\\n\\n\\n 247 ROA 3253; 3263-64.\\n 248 ROA 3264.\\n 249 ROA 4205; see also ROA 4139-4140.\\n 250 ROA 3720-21.\\n 251 ROA 4201; 4205-06.\\n 252 ROA 4141.\\n\\n 54\\n\\n Case: 14-20249 Document: 00515020007 Page: 55 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\nindirect supervision of some secular activities by some inmates, who were\\nscreened, does not undermine the rationality of that connection.\\n The second and third Turner 253 factors have been considered above, and\\nthat discussion will not be repeated. As to the fourth consideration, “the\\nabsence of ready alternatives is evidence of the reasonableness of a prison\\nregulation.” 254 Restricting indirectly supervised religious gatherings to\\ninmates who are not security risks would not address legitimate concerns\\nassociated with inmate-led services and studies, discussed above.\\n The district court did not err in failing to conclude that the\\nEstablishment Clause was violated because some secular activities by inmates\\nwho were screened based on their disciplinary records were permitted to\\ngather for secular activities while indirectly supervised.\\n VII\\n In sum, we hold that the consent decree does not remain necessary to\\ncorrect current and ongoing violations of RLUIPA, the Free Exercise Clause,\\nor the Establishment Clause. Accordingly, the TDCJ’s motion to vacate the\\nconsent decree should have been granted.\\n The district court also awarded attorneys’ fees to Brown and the Inmate\\nIntervenors as prevailing parties pursuant to 42 U.S.C. § 1988(b). 255 However,\\nin light of our conclusion as to the merits of the TDCJ’s motion to vacate the\\nconsent decree, Brown and the Inmate Intervenors are not prevailing parties.\\nWe vacate the award of attorneys’ fees.\\n\\n\\n\\n 253 Turner v. Safley, 482 U.S. 78, 90 (1987) (“A second factor . . . is whether there are\\nalternative means of exercising the right that remain open to prison inmates,” and “[a] third\\nconsideration is the impact accommodation of the asserted constitutional right will have on\\nguards and other inmates, and on the allocation of prison resources generally.”).\\n 254 Id.\\n 255 ROA 2021.\\n\\n 55\\n\\n Case: 14-20249 Document: 00515020007 Page: 56 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n\\n * * *\\n For the foregoing reasons, the district court’s denial of the TDCJ’s motion\\nto terminate the consent decree and award of attorneys’ fees to Brown and the\\nInmate Intervenors were in error. The district court’s judgment is\\nREVERSED, and the consent decree is terminated.\\n\\n\\n\\n\\n 56\\n\\n Case: 14-20249 Document: 00515020007 Page: 57 Date Filed: 07/02/2019\\n\\n\\n\\n No. 14-20249\\n c/w No. 14-20444\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2982,"cells":{"id":{"kind":"number","value":8444034,"string":"8,444,034"},"name":{"kind":"string","value":"State of TEXAS, - Chipotle Mexican Grill, Incorporated Chipotle Services, L.L.C. v. United States DEPARTMENT OF LABOR, Carmen Alvarez, and her Counsel"},"name_abbreviation":{"kind":"string","value":"State v. U.S. Dep't of Labor"},"decision_date":{"kind":"string","value":"2019-07-02"},"docket_number":{"kind":"string","value":"No. 18-40246"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Dennis, Higginson, Jolly\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415471/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"DENNIS"},"judge2":{"kind":"string","value":"HIGGINSON"},"judge3":{"kind":"string","value":"JOLLY"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8444034/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: State of TEXAS, - Chipotle Mexican Grill, Incorporated Chipotle Services, L.L.C. v. United States DEPARTMENT OF LABOR, Carmen Alvarez, and her Counsel\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-02\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: State of TEXAS, - Chipotle Mexican Grill, Incorporated Chipotle Services, L.L.C. v. United States DEPARTMENT OF LABOR, Carmen Alvarez, and her Counsel\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-02\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2983,"cells":{"id":{"kind":"number","value":4636773,"string":"4,636,773"},"name":{"kind":"string","value":"Billy Jack CRUTSINGER, Petitioner-Appellant, v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee."},"name_abbreviation":{"kind":"string","value":"Billy Crutsinger v. Lorie Davis, Director"},"decision_date":{"kind":"string","value":"2019-07-03"},"docket_number":{"kind":"string","value":"18-70027"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Smith, Owen, Graves\", \"parties\": \"\", \"opinions\": [{\"author\": \"PRISCILLA R. OWEN, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-70027 Document: 00515021537 Page: 1 Date Filed: 07/03/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-70027 July 3, 2019\\n Lyle W. Cayce\\nBILLY JACK CRUTSINGER, Clerk\\n\\n\\n Petitioner–Appellant,\\n\\nv.\\n\\nLORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL\\nJUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,\\n\\n Respondent–Appellee.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore SMITH, OWEN, and GRAVES, Circuit Judges.\\nPRISCILLA R. OWEN, Circuit Judge:\\n Billy Jack Crutsinger appeals from the district court’s order transferring\\nhis motion for relief from judgment under Federal Rule of Civil Procedure\\n60(b)(6) to this court. The district court held that Crutsinger’s motion was a\\nsecond-or-successive petition for habeas relief within the meaning of 28 U.S.C.\\n§ 2244(b)(1), and therefore, that the court lacked jurisdiction. We conclude\\nthat the motion was not a successive habeas petition and therefore vacate the\\norder of transfer. However, based on circuit precedent binding on this panel,\\nwe conclude that we lack jurisdiction to treat the transfer order and\\nCrutsinger’s requests for relief in this court as a request for a certificate of\\n\\n Case: 18-70027 Document: 00515021537 Page: 2 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\nappealability (COA). Accordingly, we remand to the district court for further\\nproceedings.\\n I\\n In April 2003, “Crutsinger fatally stabbed eighty-nine-year-old Pearl\\nMagouirk and her seventy-one-year-old daughter, Patricia Syren.” 1 A jury\\nconvicted Crutsinger of capital murder, and the state trial judge sentenced him\\nto death “based on the jury’s answers to the special issues in the court’s\\ncharge.” 2 The Texas Court of Criminal Appeals “affirmed [Crutsinger’s]\\nconviction and sentence on direct appeal.” 3\\n Crutsinger filed a state habeas petition raising eighteen grounds for\\nrelief, including an ineffective-assistance-of-trial counsel (IATC) claim. 4 The\\nstate trial court “issued findings of fact and conclusions of law recommending\\nthat relief be denied.” 5 After “review[ing] the record with respect to the\\nallegations made by [Crutsinger],” the Court of Criminal Appeals adopted the\\ntrial court’s recommendation and denied relief. 6\\n Before initiating federal habeas proceedings, Crutsinger filed a sealed\\napplication for authorization of funding and the appointment of an investigator\\npursuant to 18 U.S.C. § 3599(f). 7 The federal district court denied the request\\nin a sealed order, finding that Crutsinger’s application “fail[ed] to provide the\\ninformation necessary to show that the claim he [sought] to develop [was] not\\n\\n\\n\\n 1 Crutsinger v. Stephens, 576 F. App’x 422, 424 (5th Cir. 2014), abrogated on other\\ngrounds by Ayestas v. Davis, 138 S. Ct. 1080 (2018).\\n 2 Id.\\n 3 Id.; see also Crutsinger v. State, 206 S.W.3d 607, 608 (Tex. Crim. App.), cert. denied,\\n\\n549 U.S. 1098 (2006).\\n 4 Crutsinger, 576 F. App’x at 424.\\n 5 Id.\\n 6 Ex Parte Crutsinger, No. WR-63,481-01, 2007 WL 3277524, at *1 (Tex. Crim. App.\\n\\nNov. 7, 2007).\\n 7 Crutsinger, 576 F. App’x at 424.\\n\\n\\n\\n 2\\n\\n Case: 18-70027 Document: 00515021537 Page: 3 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\nprocedurally barred from review.” Crutsinger filed a motion for\\nreconsideration, emphasizing his intention to “assert ineffective assistance of\\ncounsel in the investigation and presentation of mitigation evidence in the\\npunishment phase of his trial.” The court denied the motion.\\n Crutsinger then filed a federal habeas petition. 8 In his petition,\\n“Crutsinger alleged that (1) the trial court failed to suppress evidence resulting\\nfrom his illegal arrest in violation of the Fourth Amendment, (2) his trial\\ncounsel provided ineffective assistance in failing to timely initiate a social\\nhistory investigation, which caused counsel to overlook evidence of his mental\\nimpairments caused by alcohol addiction, head trauma, depression, and low\\nintelligence, and (3) actual innocence.” 9 Despite Crutsinger’s “failure to\\ndevelop the factual basis of these claims in state court,” the district court\\ndetermined that “the record contain[ed] sufficient facts to make an informed\\ndecision on the merits,” and it reviewed Crutsinger’s IATC claims de novo. 10\\nApplying the standard from Strickland v. Washington, 11 the district court\\nconcluded that the representation by trial counsel did not fall below an\\nobjective standard of reasonableness during the pretrial, guilt, or sentencing\\nphases. 12 The court also concluded that, in any event, the record failed to\\nsupport a finding of prejudice. 13\\n After the district court’s initial ruling on Crutsinger’s federal habeas\\npetition, the Supreme Court issued Martinez v. Ryan, 14 which held that\\n\\n\\n\\n 8 Id. at 425.\\n 9 Id.\\n 10 Crutsinger v. Thaler, No. 4:07–CV–703–Y, 2012 WL 369927, at *4 (N.D. Tex. Feb.\\n\\n6, 2012).\\n 11 466 U.S. 668 (1984).\\n 12 Crutsinger, 2012 WL 369927, at *5-7, *8-12.\\n 13 Id. at *7-8, *12-13.\\n 14 566 U.S. 1 (2012).\\n\\n\\n\\n 3\\n\\n Case: 18-70027 Document: 00515021537 Page: 4 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\n“[i]nadequate assistance of counsel at initial-review collateral proceedings may\\nestablish cause for a prisoner’s procedural default of a claim of ineffective\\nassistance at trial.” 15 Crutsinger then filed a Federal Rule of Civil Procedure\\n59(e) motion to vacate the initial habeas judgment. 16 The district court denied\\nthe request, concluding that “the claim of ineffective trial counsel raised by\\nCrutsinger had no merit and was, therefore, not ‘substantial’ as required by\\nMartinez.” 17\\n Crutsinger appealed, and we reviewed both the IATC claim and the\\nrelated claim that the district court had abused its discretion in denying\\nfunding under § 3599. 18 We considered the Supreme Court’s decision in\\nMartinez v. Ryan 19 and concluded that “[u]nder Martinez, Crutsinger has to\\nestablish that his underlying IAC claim is ‘substantial’ and that his state\\nhabeas counsel was ineffective.” 20 We recognized that “Martinez makes this\\nsubstantiality standard equivalent to the standard for obtaining a COA.” 21\\n With respect to the § 3599 claim, we denied Crutsinger’s request for a\\nCOA and affirmed the district court’s disposition. 22 In applying the statutory\\nstandard of whether an investigator’s services were “reasonably necessary for\\nthe representation of the defendant,” 23 our court construed “[r]easonably\\n\\n\\n\\n 15 Id. at 9.\\n 16 Crutsinger v. Stephens, 576 F. App’x 422, 425 (5th Cir. 2014), abrogated on other\\ngrounds by Ayestas v. Davis, 138 S. Ct. 1080 (2018).\\n 17 Crutsinger v. Davis, No. 4:07-CV-00703-Y, 2018 WL 3743881, at *3 (N.D. Tex. Aug.\\n\\n7, 2018).\\n 18 Crutsinger, 576 F. App’x at 426-31.\\n 19 566 U.S. 1 (2012).\\n 20 Crutsinger, 576 F. App’x at 430.\\n 21 Id.\\n 22 Id. at 428-31.\\n 23 18 U.S.C. § 3599(f) (“Upon a finding that investigative, expert, or other services are\\n\\nreasonably necessary for the representation of the defendant, whether in connection with\\nissues relating to guilt or the sentence, the court may authorize the defendant's attorneys to\\n\\n 4\\n\\n Case: 18-70027 Document: 00515021537 Page: 5 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\nnecessary in this context [to] mean[] ‘that a petitioner must demonstrate “a\\nsubstantial need” for the requested assistance.’” 24\\n Crutsinger then filed a petition for certiorari. 25 With regard to § 3599,\\nhe asserted that this court had improperly “hewed to Fifth Circuit precedent\\nspecifying that ‘[r]easonably necessary in this context means that a petitioner\\nmust demonstrate a substantial need for the requested assistance,’” and that\\nthe “‘substantial need’ criteria for § 3599 services” was an “outlier.” 26 This was\\nthe only reference to the “substantial need” gloss that the Fifth Circuit had\\nplaced on the text of the statute. Crutsinger’s argument and briefing focused\\non a “cart-before-horse” rationale. 27 Relying on the Supreme Court’s decisions\\nin Martinez v. Ryan 28 and Treviño v. Thaler, 29 Crutsinger asserted that his\\nineffective-assistance-of-trial-counsel claim, based on failure to investigate,\\nwas procedurally defaulted due to state habeas counsel’s alleged ineffective\\nassistance in failing to investigate mitigating evidence and failing to pursue\\nthe issue adequately in state habeas proceedings. 30 Crutsinger also argued\\nthat in evaluating the merits of his claims and the denial of funds under § 3599,\\nthe Fifth Circuit had erred by requiring him “to explain[] what the additional\\ninvestigation he requests would reveal [and] how it would have changed the\\n\\n\\n\\n\\nobtain such services on behalf of the defendant and, if so authorized, shall order the payment\\nof fees and expenses therefor . . . .”).\\n 24 Crutsinger, 576 F. App’x at 429 (quoting Riley v. Dretke, 362 F.3d 302, 307 (5th Cir.\\n\\n2004)).\\n 25 Petition for Writ of Certiorari, Crutsinger v. Stephens, 135 S. Ct. 1401 (2015) (No.\\n\\n14-6992).\\n 26 Id. at 21 (emphasis omitted) (quoting Crutsinger, 576 F. App’x at 429).\\n 27 Id. at 22.\\n 28 566 U.S. 1 (2012).\\n 29 569 U.S. 413 (2013).\\n 30 Petition for Writ of Certiorari at 10-14, Crutsinger v. Stephens, 135 S. Ct. 1401\\n\\n(2015) (No. 14-6992).\\n\\n 5\\n\\n Case: 18-70027 Document: 00515021537 Page: 6 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\nresult of his trial and sentence.” 31 The Supreme Court denied Crutsinger’s\\npetition for certiorari. 32\\n Three years later, in another case, Ayestas v. Davis, the Supreme Court\\nheld that the Fifth Circuit’s requirement that a movant show a “substantial\\nneed” to demonstrate that funds were “reasonably necessary” was not\\nsupported by the text of § 3599, and that this court’s conclusion that funding\\nfor an investigation should not be granted if the claim was procedurally barred\\nwas incorrect. 33 The Supreme Court held, “[t]he difference between\\n‘reasonably necessary’ and ‘substantially need’ may be small, but the Fifth\\nCircuit exacerbated the problem by invoking precedent to the effect that a\\nhabeas petitioner seeking funding must present ‘a viable constitutional claim\\nthat is not procedurally barred.’” 34 In Ayestas, the Supreme Court expressly\\ncited our court’s decision in Crutsinger with disapproval, 35 and all agree that\\nour decision in Crutsinger was accordingly abrogated regarding its analysis\\nand application of § 3599.\\n Crutsinger then returned to federal district court, asserting in a\\nRule 60(b)(6) motion that there was a defect in the integrity of his initial\\nfederal habeas proceedings because the district court had incorrectly applied\\nthe law in assessing his request for funds under § 3599. 36 He requested that\\nthe federal district court vacate its judgment and allow him to file a new § 3599\\nmotion. 37 He did not seek to overturn the state court’s judgment of conviction\\n\\n\\n\\n 31 Id. at 22 (alterations in original) (quoting Crutsinger, 576 F. App’x at 428).\\n 32 Crutsinger v. Stephens, 135 S. Ct. 1401 (2015) (No. 14-6992).\\n 33 Ayestas v. Davis, 138 S. Ct. 1080, 1093-94 (2018).\\n 34 Id. at 1093 (alteration in original) (quoting Ayestas v. Stephens, 817 F.3d 888, 895\\n\\n(5th Cir. 2016), vacated sub nom. Ayestas v. Davis, 138 S. Ct. 1080 (2018)).\\n 35 Id. (citing Crutsinger, 576 F. App’x. at 431).\\n 36 ROA.677.\\n 37 ROA.703.\\n\\n\\n\\n 6\\n\\n Case: 18-70027 Document: 00515021537 Page: 7 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\nand death sentence, but it is clear from his motion that if substantial additional\\nmitigating evidence is discovered, he would seek to set aside his state\\nconviction, sentence, or both. The district court determined that his Rule 60(b)\\nmotion was “in actuality a second-or-successive petition for habeas relief,”\\nwhich deprived the court of jurisdiction. 38 Accordingly, the district court\\ntransferred the motion to this court. 39\\n II\\n The Supreme Court’s decision and reasoning in Gonzalez v. Crosby 40\\ncompels the conclusion that Crutsinger’s Rule 60(b)(6) motion is not a\\nsuccessive petition for habeas relief within the meaning of 28 U.S.C.\\n§ 2244(b)(1). 41 The Gonzalez decision appears to establish that Crutsinger is\\nnot entitled to relief under Rule 60(b) because a change in the law does not\\nconstitute an extraordinary circumstance, which Rule 60(b)(6) requires. 42\\nHowever, we remand the case to the district court to decide the latter issue in\\nthe first instance.\\n A\\n We must determine whether Crutsinger’s Rule 60(b)(6) motion is\\nactually a successive habeas petition within the meaning of the Antiterrorism\\nand Effective Death Penalty Act (AEDPA). 43 If it is not, the district court’s\\norder transferring the case to this court must be vacated.\\n\\n\\n 38 Crutsinger v. Davis, No. 4:07-CV-00703-Y, 2018 WL 3743881, at *1 (N.D. Tex. Aug.\\n7, 2018).\\n 39 Id.\\n 40 545 U.S. 524, 535 (2005).\\n 41 See 28 U.S.C. § 2244(b)(1) (“A claim presented in a second or successive habeas\\n\\ncorpus application under section 2254 that was presented in a prior application shall be\\ndismissed.”).\\n 42 See Gonzalez, 545 U.S. at 536-37 (construing FED. R. CIV. P. 60(b)(6)).\\n 43 See 28 U.S.C. § 2244(b)(1) (“A claim presented in a second or successive habeas\\n\\ncorpus application under section 2254 that was presented in a prior application shall be\\ndismissed.”).\\n\\n 7\\n\\n Case: 18-70027 Document: 00515021537 Page: 8 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\n JUSTICE SCALIA, writing for the Court in Gonzalez, explained that “‘[a]s\\na textual matter, § 2244(b) applies only where the court acts pursuant to a\\nprisoner’s “application”’ for a writ of habeas corpus,” 44 and courts “therefore\\nmust decide whether a Rule 60(b) motion filed by a habeas petitioner is a\\n‘habeas corpus application’ as the statute uses that term.” 45 “[I]t is clear that\\nfor purposes of § 2244(b) an ‘application’ for habeas relief is a filing that\\ncontains one or more ‘claims.’” 46 “These statutes, and [Supreme Court]\\ndecisions, make clear that a ‘claim’ as used in § 2244(b) is an asserted federal\\nbasis for relief from a state court’s judgment of conviction.” 47\\n A motion can . . . be said to bring a ‘claim’ if it attacks the federal\\n court’s previous resolution of a claim on the merits, since alleging\\n that the court erred in denying habeas relief on the merits is\\n effectively indistinguishable from alleging that the movant is,\\n under the substantive provisions of the statutes, entitled to habeas\\n relief. 48\\nBy contrast, “[t]hat is not the case . . . when a Rule 60(b) motion attacks, not\\nthe substance of the federal court’s resolution of a claim on the merits, but\\nsome defect in the integrity of the federal habeas proceedings.” 49\\n In Gonzalez, the federal district court had dismissed the petitioner’s\\nhabeas petition, concluding that it was barred by AEDPA’s statute of\\nlimitations. 50 After that judgment had become final, the Supreme Court issued\\na decision in Artuz v. Bennett, 51 which held “that an application for state\\n\\n\\n\\n 44 Gonzalez, 545 U.S. at 530 (quoting Calderon v. Thompson, 523 U.S. 538, 554 (1998));\\nsee also 28 U.S.C. § 2244(b)(1).\\n 45 Gonzalez, 545 U.S. at 530.\\n 46 Id.\\n 47 Id.\\n 48 Id. at 532 (footnote omitted).\\n 49 Id.\\n 50 Id. at 527.\\n 51 531 U.S. 4 (2000).\\n\\n\\n\\n 8\\n\\n Case: 18-70027 Document: 00515021537 Page: 9 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\npostconviction relief can be ‘properly filed’ even if the state courts dismiss it as\\nprocedurally barred.” 52 Gonzalez then filed a Rule 60(b)(6) motion “contending\\nthat the District Court’s time-bar ruling was incorrect under Artuz’s\\nconstruction of § 2244(d).” 53 The district court denied the motion, and the\\nEleventh Circuit concluded, en banc, that the Rule 60(b)(6) motion was in\\nsubstance a second or successive habeas corpus petition. 54\\n The Supreme Court disagreed with the circuit court. The Supreme Court\\npointed out that the Rule 60(b)(6) motion at issue in Gonzalez “does not present\\na revisitation of the merits” but instead “confines itself not only to the first\\nfederal habeas petition, but to a nonmerits aspect of the first federal habeas\\nproceeding.” 55 “Because petitioner’s Rule 60(b) motion challenges only the\\nDistrict Court’s previous ruling on the AEDPA statute of limitations, it is not\\nthe equivalent of a successive habeas petition.” 56\\n Crutsinger’s motion for funding is analogous. It does not present a\\nrevisitation of the merits of the IATC claim. It is confined to the federal district\\ncourt’s denial of funding in the first federal habeas proceeding. It is not a\\nsuccessive habeas petition within the meaning of 28 U.S.C. § 2244(b)(1). The\\ndistrict court therefore had jurisdiction to consider the Rule 60(b)(6) motion.\\n B\\n To prevail on a motion under Rule 60(b)(6), a movant must show\\n“‘extraordinary circumstances’ justifying the reopening of a final judgment.” 57\\nIt would appear that the Supreme Court’s holding in Gonzalez that “not every\\n\\n\\n 52 Gonzalez, 545 U.S. at 527.\\n 53 Id.\\n 54 Id. at 527-28 (citing Gonzalez v. Sec’y for Dep’t of Corr., 366 F.3d 1253, 1278, 1281-\\n\\n82 (11th Cir. 2004), aff’d on other grounds sub nom. Gonzalez v. Crosby, 545 U.S. 524 (2005)).\\n 55 Id. at 534.\\n 56 Id. at 535-36.\\n 57 Id. at 535 (citing Ackermann v. United States, 340 U.S. 193, 199 (1950)).\\n\\n\\n\\n 9\\n\\n Case: 18-70027 Document: 00515021537 Page: 10 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\ninterpretation of the federal statutes setting forth the requirements for habeas\\nprovides cause for reopening cases long since final” 58 is at least instructive, if\\nnot dispositive, of Crutsinger’s Rule 60(b) motion.\\n However, a decision of our court has held that we are without jurisdiction\\nunless the district court either granted or denied a COA on the “specific issue”\\nbefore us. 59 Accordingly, we are foreclosed from treating the district court’s\\ntransfer order and Crutsinger’s request for relief in our court as a COA.\\nAccordingly, we remand this case to the district court for further proceedings.\\n * * *\\n We VACATE the district court’s order transferring Crutsinger’s motion\\nto this court as a successive petition. We REMAND to the district court to\\nconsider the Rule 60(b)(6) motion in the first instance.\\n\\n\\n\\n\\n 58Id.\\n 59Black v. Davis, 902 F.3d 541, 545 (5th Cir. 2018); see also Hernandez v. Thaler, 630\\nF.3d 420, 428 (5th Cir. 2011) (per curiam) (citing Ochoa Canales v. Quarterman, 507 F.3d\\n884, 888 (5th Cir. 2007) (per curiam)).\\n 10\\n\\n Case: 18-70027 Document: 00515021537 Page: 11 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4414026/\", \"author_raw\": \"PRISCILLA R. OWEN, Circuit Judge:\"}, {\"author\": \"JAMES E. GRAVES, JR., Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"JAMES E. GRAVES, JR., Circuit Judge, dissenting:\\n Because I conclude that Billy Jack Crutsinger’s motion under Federal\\nRule of Civil Procedure 60(b)(6) should be granted, I would vacate and remand\\nfor proper consideration of his funding motion. Thus, I respectfully dissent.\\n The district court denied Crutsinger’s requested funding for\\ninvestigative and expert assistance in the development of his ineffective\\nassistance of counsel claim because his claim was unexhausted and\\nprocedurally barred from review. Crutsinger later included the claim,\\npresented without the benefit of those funds, in his habeas petition to preserve\\nit. The State did not then assert a procedural bar. The district court declined\\nto apply a procedural bar sua sponte and found that the undeveloped claim\\nfailed on the merits.\\n The district court denied funding solely on the basis of the procedural\\nbar and used language that could be interpreted as indicating it would not have\\ndenied funding but for the procedural bar. Specifically, the district court said,\\nin relevant part:\\n Petitioner’s present motion for funding and attachments set\\n forth tragic circumstances that appear to have been all too common\\n in the post-conviction investigation and presentation of habeas-\\n corpus claims. This Court is not insensitive to the plight of\\n inmates who are precluded from presenting such claims in federal\\n court due to the failure of their counsel to raise those claims in the\\n state-court proceedings. However, as set out below, this Court may\\n not use such circumstances to excuse the failure to present these\\n claims to the state courts.\\n\\n The necessary finding the district court must make to authorize funding\\nunder 18 U.S.C. § 3599(f) is merely that the defendant is indigent and\\n“investigative, expert, or other services are reasonably necessary.” The district\\ncourt found that, under our case law, Crutsinger could not make the required\\n\\n\\n\\n 11\\n\\n Case: 18-70027 Document: 00515021537 Page: 12 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\nshowing “when the claim sought to be investigated is procedurally barred from\\nreview.”\\n Prior to the conclusion of Crutsinger’s habeas, Martinez v. Ryan, 566\\nU.S. 1 (2012), was decided. As we know from Trevino v. Thaler, 569 U.S. 413\\n(2013), Martinez clearly applies to Texas. Under Martinez, Crutsinger’s\\nineffective assistance of counsel claim was not procedurally barred.\\n Crutsinger subsequently filed a motion to alter or amend under Fed. R.\\nCiv. P. 59(e). In denying this motion, the district court addressed the Supreme\\nCourt’s decision in Martinez and said that to overcome the default, Crutsinger\\nhad to establish that his claim was substantial and had merit. The district\\ncourt then found that Martinez would not excuse the procedural default in this\\ncase, and, because the claim was unexhausted, evidentiary development would\\nbe inappropriate.\\n In later denying a certificate of appealability, this court concluded that\\nthe denial of funding was justified because Crutsinger had not established that\\nhis underlying ineffective assistance of counsel claim was substantial. See\\nCrutsinger v. Stephens, 576 F. App’x 422, 430 (2014); see also Martinez, 566\\nU.S. at 14.\\n In other words, the court concluded that Crutsinger must prove his claim\\nof ineffective assistance of counsel to be able to establish that “investigative,\\nexpert, or other services are reasonably necessary” to then be able to prove his\\nclaim of ineffective assistance of counsel. Such a circular application is\\nillogical. It heightens the standard required under 18 U.S.C. § 3599(f) and\\nessentially makes it impossible for a defendant to ever obtain funding on such\\na claim. A defendant who has already proven his claim of ineffective assistance\\nof counsel would have no need for additional investigative, expert, or other\\nservices.\\n\\n\\n 12\\n\\n Case: 18-70027 Document: 00515021537 Page: 13 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\n Martinez provides an exception for claims such as Crutsinger’s.\\nMartinez was an equitable ruling. To say that 18 U.S.C. § 3599(f) only allows\\nthose defendants who can already prove their underlying ineffective assistance\\nof counsel claims to obtain funding is not equitable. Likewise, repeatedly\\ndenying relief on the basis of the procedural bar but then later addressing on\\nthe merits the defendant’s attempt to preserve his claim is not equitable.\\nWhile it is correct that Martinez does not mandate pre-petition funding, it is\\nalso correct that Martinez neither prohibits pre-petition funding nor amends\\nthe standard for obtaining it.\\n Additionally, the Supreme Court has explicitly stated that denying\\nfunding in this very situation may be error. In Ayestas v. Davis, the Court said:\\n The difference between “reasonably necessary” and\\n “substantially need[ed]” may be small, but the Fifth Circuit\\n exacerbated the problem by invoking precedent to the effect that a\\n habeas petitioner seeking funding must present “a viable\\n constitutional claim that is not procedurally barred.” 817 F.3d, at\\n 895 (internal quotation marks omitted). See also, e.g., Riley v.\\n Dretke, 362 F.3d 302, 307 (C.A.5 2004) (“A petitioner cannot show\\n a substantial need when his claim is procedurally barred from\\n review”); Allen, supra, at 638–639 (describing “ ‘our rule that a\\n prisoner cannot show a substantial need for funds when his claim\\n is procedurally barred from review’ ” (quoting Crutsinger v.\\n Stephens, 576 Fed.Appx. 422, 431 (C.A.5 2014) (per curiam)));\\n Ward, supra, at 266 (“The denial of funding will be upheld ... when\\n the constitutional claim is procedurally barred”).\\n The Fifth Circuit adopted this rule before our decision in\\n Trevino, but after Trevino, the rule is too restrictive. Trevino\\n permits a Texas prisoner to overcome the failure to raise a\\n substantial ineffective-assistance claim in state court by showing\\n that state habeas counsel was ineffective, 569 U.S., at 429, 133\\n S.Ct. 1911 and it is possible that investigation might enable a\\n petitioner to carry that burden. In those cases in which funding\\n stands a credible chance of enabling a habeas petitioner to\\n overcome the obstacle of procedural default, it may be error for a\\n district court to refuse funding.\\n\\n 13\\n\\n Case: 18-70027 Document: 00515021537 Page: 14 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\nAyestas, 138 S.Ct. 1080, 1093-94 (2018). 1\\n Following Ayestas, Crutsinger filed a Rule 60(b) motion asserting that\\nthere was a defect in the integrity of his initial federal habeas proceedings\\nbecause the district court applied an incorrect standard. Crutsinger asked the\\ndistrict court to vacate its judgment and grant him leave to file a new §3599\\nmotion. The district court then determined that Crutsinger’s motion was a\\nsecond-or-successive petition for habeas relief that it lacked jurisdiction to hear\\nand transferred the motion to this court. Crutsinger v. Davis, No. 4:07-CV-\\n00703, 2018 WL 3743881, at *1 (N.D. Tex. Aug. 7, 2018).\\n The majority now concludes Crutsinger’s Rule 60(b)(6) motion was not a\\nsuccessive habeas petition and vacates the order of transfer. Simultaneously,\\nthe majority concludes that it lacks jurisdiction to treat the transfer order and\\nCrutsinger’s requests for relief as a certificate of appealability (COA), which it\\ndetermines is required under Black v. Davis, 902 F.3d 541, 545 (5th Cir. 2018);\\nHernandez v. Thaler, 630 F.3d 420, 428 (5th Cir. 2011); and Ochoa Canales v.\\nQuarterman, 507 F.3d 884,888 (5th Cir. 2007). However, those cases are either\\ndistinguishable or do not support any such conclusion.\\n In Black, the district court denied habeas relief and a COA. A single\\njudge of this court granted a COA on two issues that had not been presented\\nto the district court. A panel of this court later vacated the COA and dismissed\\nthe appeal without prejudice because the absence of the district court’s\\ndetermination regarding a COA on the two new issues posed a jurisdictional\\n\\n\\n\\n\\n 1In Ayestas, as quoted above, the Supreme Court also made clear that this issue is an\\noverlap of Ayestas, Trevino, and, necessarily, Martinez. Id. at 1093-94. Martinez and Trevino\\nwere decided prior to the conclusion Crutsinger’s habeas. This court has already conceded\\nthe application of Martinez and Trevino. Crutsinger, 576 F. App’x at 430-31. Moreover, the\\nmajority now concedes that Ayestas abrogated this court’s prior decision in Crutsinger\\nregarding his request for funding under § 3599.\\n\\n 14\\n\\n Case: 18-70027 Document: 00515021537 Page: 15 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\nbar to this court’s consideration. Importantly, Black involved the denial of\\nhabeas relief, not a Rule 60(b)(6) motion. Also, the two issues on which Black\\nwas granted a COA had not been presented to the district court. Here, we are\\ndealing with a Rule 60(b)(6) motion that was presented to the district court.\\nThus, Black has no applicability here.\\n The relevant portion of Hernandez cited by the majority states that a\\npetitioner in Hernandez’s situation must obtain a COA before he can appeal\\nthe denial of a Rule 60(b) motion. Hernandez, 630 F.3d at 428. Hernandez\\ncites Ochoa Canales, quoting, “We . . . hold that Dunn's conclusion that a COA\\nis not required to appeal the denial of a Rule 60(b) motion applies only when\\nthe purpose of the motion is to reinstate appellate jurisdiction over the original\\ndenial of habeas relief.” Id. at n. 37. Hernandez involved a time bar issue,\\nwhich necessarily was an appeal from the merits of the habeas petition.\\n In Dunn v. Cockrell, 302 F.3d 491, 492-93 (5th Cir. 2002), this court said:\\n“Dunn filed both a timely notice of appeal and a motion for certificate of\\nappealability. As this case presents only Dunn's appeal from the denial of his\\n60(b) motion, and not an appeal from the merits of his habeas petition, no\\ncertificate of appealability is required at this time.” Id. at 492.\\n This court in Ochoa Canales adopted a narrow interpretation of Dunn,\\nas set out above. This case falls within that narrow interpretation, as the\\npurpose of Crutsinger’s motion is to reassert appellate jurisdiction over the\\noriginal denial of habeas relief to allow the proper consideration of his motion\\nfor funding. Thus, a COA is not required. See also Gonzalez v. Crosby, 545\\nU.S. 524, 535, n. 7 (2005).\\n I note that the majority opinion is unclear and seems contradictory. The\\nmajority concludes that a COA is required and that it has no jurisdiction, but\\nthen exercises jurisdiction to determine that Crutsinger’s Rule 60(b)(6) motion\\nwas not a successive habeas petition. The effect of that determination is a\\n 15\\n\\n Case: 18-70027 Document: 00515021537 Page: 16 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\nconclusion that the district court abused its discretion, as I state herein.\\nHowever, the majority never mentions abuse of discretion. Because the\\nmajority concludes that it lacks jurisdiction to consider Crutsinger’s appeal\\nwithout a COA, it seems the appropriate remedy would be to remand for the\\ndistrict court to grant or deny a COA. Instead, the majority remands for the\\ndistrict court to consider the Rule 60(b)(6) motion in the first instance. But,\\nthe district court already considered the Rule 60(b)(6) motion in the first\\ninstance and determined that it is “in actuality a second-or-successive petition\\nfor habeas relief,\\\" hence, the transfer.\\n Regardless, I agree with the majority that the Supreme Court’s decision\\nin Gonzalez compels the conclusion that Crutsinger’s Rule 60(b)(6) motion is\\nproper and not a successive petition. However, I disagree with the majority’s\\ndetermination that Gonzalez appears to establish that a change in the law\\ncannot constitute an extraordinary circumstance.\\n In Gonzalez, the petitioner’s only ground for reopening the judgment\\ndenying his first habeas petition was that the decision in Artuz v. Bennett, 531\\nU.S. 4 (2000), changed the interpretation of the Antiterrorism and Effective\\nDeath Penalty Act statute of limitations and the district court’s statute-of-\\nlimitations ruling was incorrect. Id. at 536. The court stated: “The District\\nCourt's interpretation was by all appearances correct under the Eleventh\\nCircuit's then-prevailing interpretation of 28 U.S.C. § 2244(d)(2). It is hardly\\nextraordinary that subsequently, after petitioner's case was no longer pending,\\nthis Court arrived at a different interpretation.” Gonzalez, 545 U.S. at 536.\\nThe court explained that “not every interpretation of the federal statutes\\nsetting forth the requirements for habeas provides cause for reopening cases\\nlong since final.” Id. Clearly, this indicates the possibility that some changes\\nprovide cause for reopening cases. Further, the court said:\\n\\n\\n 16\\n\\n Case: 18-70027 Document: 00515021537 Page: 17 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\n The change in the law worked by Artuz is all the less\\n extraordinary in petitioner's case, because of his lack of diligence\\n in pursuing review of the statute-of-limitations issue. At the time\\n Artuz was decided, petitioner had abandoned any attempt to seek\\n review of the District Court's decision on this statute-of-limitations\\n issue. . . . This lack of diligence confirms that Artuz is not an\\n extraordinary circumstance justifying relief from the judgment in\\n petitioner’s case.\\n\\nId. at 537. Here, Crutsinger had not abandoned anything and had been\\ndiligently trying to get someone to review the denial of funding.\\n Additionally, the Gonzalez court cited Ackermann v. United States, 340\\nU.S. 193 (1950), and Klapprott v. United States, 335 U.S. 601 (1949). In\\nKlapprott, the Court determined that the facts revealed far more than mere\\nallegations of excusable neglect in a denaturalization case. Id. at 613-14.\\nSpecifically, the Court said:\\n The basis of his petition was not that he had neglected to act in his\\n own defense, but that in jail as he was, weakened from illness,\\n without a lawyer in the denaturalization proceedings or funds to\\n hire one, disturbed and fully occupied in efforts to protect himself\\n against the gravest criminal charges, he was no more able to\\n defend himself in the New Jersey court than he would have been\\n had he never received notice of the charges. Under such\\n circumstances petitioner's prayer for setting aside the default\\n judgment should not be considered only under the excusable\\n neglect, but also under the ‘other reason’ clause of 60(b), to which\\n the one year limitation provision does not apply.\\n\\nId. at 614.\\n Likewise, the Court engaged in a factual analysis in Ackermann, also a\\ndenaturalization case, to determine whether Ackermann had set forth\\nextraordinary circumstances under Rule 60(b)(6). Ackerman, 340 U.S. at 197-\\n202. The Court ultimately concluded:\\n From a comparison of the situations shown by the\\n allegations of Klapprott and Ackermann, it is readily apparent\\n\\n 17\\n\\n Case: 18-70027 Document: 00515021537 Page: 18 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\n that the situations of the parties bore only the slightest\\n resemblance to each other. The comparison strikingly points up\\n the difference between no choice and choice; imprisonment and\\n freedom of action; no trial and trial; no counsel and counsel; no\\n chance for negligence and inexcusable negligence. Subsection 6 of\\n Rule 60(b) has no application to the situation of petitioner. Neither\\n the circumstances of petitioner nor his excuse for not appealing is\\n so extraordinary as to bring him within Klapprott or Rule 60(b)(6).\\n\\n\\nId. at 202.\\n More recently, the Supreme Court addressed a similar issue in the\\ncontext of the denial of a COA in Buck v. Davis, 137 S.Ct. 759 (2017). Duane\\nBuck sought to reopen a 2006 judgment under Rule 60(b)(6), arguing that\\nMartinez and Trevino “had changed the law in a way that provided an excuse\\nfor his procedural default, permitting him to litigate his claim on the merits.\\nIn addition to this change in the law, Buck's motion identified ten other factors\\nthat, he said, constituted the ‘extraordinary circumstances . . . .’” Id. at 767.\\nThe district court and this court both concluded that Buck had failed to\\ndemonstrate extraordinary circumstances and denied a COA. The Supreme\\nCourt concluded that the district court abused its discretion in denying Buck’s\\nRule 60(b)(6) motion. Id. at 778. The court also concluded that this court erred\\nin denying Buck a COA, and that he was entitled to Rule 60(b)(6) relief. In its\\nanalysis, the court said, “[i]n determining whether extraordinary\\ncircumstances are present, a court may consider a wide range of factors. These\\nmay include, in an appropriate case, ‘the risk of injustice to the parties’ and\\n‘the risk of undermining the public's confidence in the judicial process.’” Id. at\\n778 (citing Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863-64\\n(1988).\\n Crutsinger has not abandoned this issue and has been extremely\\ndiligent. Gonzalez merely held that Artuz combined with a complete lack of\\n\\n 18\\n\\n Case: 18-70027 Document: 00515021537 Page: 19 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\ndiligence did not establish an extraordinary circumstance in that case, while\\nacknowledging that there are situations where a subsequent change in the law\\nmay provide cause for reopening habeas cases long since final. Gonzalez, 545\\nU.S. at 536. The risk of injustice to Crutsinger in not reopening the judgment\\nand properly deciding his funding motion is great, while the risk of injustice to\\nthe government is nonexistent. There also exists a risk of undermining the\\npublic’s confidence in the judicial process by allowing an erroneous decision,\\nthe denial of funding based on procedural bar, to dictate the outcome of every\\ndecision that follows rather than just requiring the proper consideration of the\\nmotion for funding.\\n A district court’s ruling on a Rule 60(b) motion is reviewed for an abuse\\nof discretion. Dunn, 302 F.3d at 492. This court also reviews for an abuse of\\ndiscretion the denial of funding. Woodward v. Epps, 580 F.3d 318, 334 (5th\\nCir. 2009). “A natural consideration informing the exercise of that discretion\\nis the likelihood that the contemplated services will help the applicant win\\nrelief.” Ayestas, 138 S.Ct. at 1094. Section 3599 requires only a “reasonably\\nnecessary” standard. As the Supreme Court said in Ayestas:\\n Proper application of the “reasonably necessary” standard\\n thus requires courts to consider the potential merit of the claims\\n that the applicant wants to pursue, the likelihood that the services\\n will generate useful and admissible evidence, and the prospect\\n that the applicant will be able to clear any procedural hurdles\\n standing in the way.\\n\\nId. Further, “[t]o be clear, a funding applicant must not be expected to prove\\nthat he will be able to win relief if given the services he seeks.” Id.\\n The guidance from Ayestas and the equitable nature of Martinez indicate\\nthat heightening the standard for funding, thus penalizing Crutsinger for any\\nfailures of counsel outside his control, is improper. Instead, funding should be\\ndecided solely under the requirements of Section 3599, keeping in mind the\\n\\n 19\\n\\n Case: 18-70027 Document: 00515021537 Page: 20 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\nconsideration of whether funding stands a credible chance of enabling\\nCrutsinger to overcome the procedural bar. See Ayestas, 138 S.Ct. at 1094; see\\nalso 18 U.S.C. § 3599(f). If funding is reasonably necessary, then once the\\npetitioner presents his habeas petition with the benefit of those funds, the\\ncourt should make the separate determination of whether the claim in question\\nis substantial. To do otherwise negates the very purposes of Section 3599,\\nMartinez and Ayestas.\\n Because there has been a change in the law establishing that the denial\\nof funding was potentially a defect in the integrity of the proceeding and\\nCrutsinger has diligently pursued review of this issue, Crutsinger has shown\\nthat extraordinary circumstances exist to justify reopening the final judgment\\non his habeas petition. See Gonzalez, 545 U.S. at 535-36.\\n For these reasons, I would conclude that the district court abused its\\ndiscretion in transferring Crutsinger’s Rule 60(b)(6) motion and that it should\\nbe granted. Because I would vacate and remand for proper consideration of\\nCrutsinger’s funding motion, I respectfully dissent.\\n\\n\\n\\n\\n 20\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4414026/\", \"author_raw\": \"JAMES E. GRAVES, JR., Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"SMITH"},"judge2":{"kind":"string","value":"OWEN"},"judge3":{"kind":"string","value":"GRAVES"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":1,"string":"1"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4636773/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Billy Jack CRUTSINGER, Petitioner-Appellant, v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-03\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-70027 Document: 00515021537 Page: 1 Date Filed: 07/03/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 18-70027 July 3, 2019\n Lyle W. Cayce\nBILLY JACK CRUTSINGER, Clerk\n\n\n Petitioner–Appellant,\n\nv.\n\nLORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL\nJUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,\n\n Respondent–Appellee.\n\n\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n\n\nBefore SMITH, OWEN, and GRAVES, Circuit Judges.\nPRISCILLA R. OWEN, Circuit Judge:\n Billy Jack Crutsinger appeals from the district court’s order transferring\nhis motion for relief from judgment under Federal Rule of Civil Procedure\n60(b)(6) to this court. The district court held that Crutsinger’s motion was a\nsecond-or-successive petition for habeas relief within the meaning of 28 U.S.C.\n§ 2244(b)(1), and therefore, that the court lacked jurisdiction. We conclude\nthat the motion was not a successive habeas petition and therefore vacate the\norder of transfer. However, based on circuit precedent binding on this panel,\nwe conclude that we lack jurisdiction to treat the transfer order and\nCrutsinger’s requests for relief in this court as a request for a certificate of\n\n Case: 18-70027 Document: 00515021537 Page: 2 Date Filed: 07/03/2019\n\n\n\n No. 18-70027\nappealability (COA). Accordingly, we remand to the district court for further\nproceedings.\n I\n In April 2003, “Crutsinger fatally stabbed eighty-nine-year-old Pearl\nMagouirk and her seventy-one-year-old daughter, Patricia Syren.” 1 A jury\nconvicted Crutsinger of capital murder, and the state trial judge sentenced him\nto death “based on the jury’s answers to the special issues in the court’s\ncharge.” 2 The Texas Court of Criminal Appeals “affirmed [Crutsinger’s]\nconviction and sentence on direct appeal.” 3\n Crutsinger filed a state habeas petition raising eighteen grounds for\nrelief, including an ineffective-assistance-of-trial counsel (IATC) claim. 4 The\nstate trial court “issued findings of fact and conclusions of law recommending\nthat relief be denied.” 5 After “review[ing] the record with respect to the\nallegations made by [Crutsinger],” the Court of Criminal Appeals adopted the\ntrial court’s recommendation and denied relief. 6\n Before initiating federal habeas proceedings, Crutsinger filed a sealed\napplication for authorization of funding and the appointment of an investigator\npursuant to 18 U.S.C. § 3599(f). 7 The federal district court denied the request\nin a sealed order, finding that Crutsinger’s application “fail[ed] to provide the\ninformation necessary to show that the claim he [sought] to develop [was] not\n\n\n\n 1 Crutsinger v. Stephens, 576 F. App’x 422, 424 (5th Cir. 2014), abrogated on other\ngrounds by Ayestas v. Davis, 138 S. Ct. 1080 (2018).\n 2 Id.\n 3 Id.; see also Crutsinger v. State, 206 S.W.3d 607, 608 (Tex. Crim. App.), cert. denied,\n\n549 U.S. 1098 (2006).\n 4 Crutsinger, 576 F. App’x at 424.\n 5 Id.\n 6 Ex Parte Crutsinger, No. WR-63,481-01, 2007 WL 3277524, at *1 (Tex. Crim. App.\n\nNov. 7, 2007).\n 7 Crutsinger, 576 F. App’x at 424.\n\n\n\n 2\n\n Case: 18-70027 Document: 00515021537 Page: 3 Date Filed: 07/03/2019\n\n\n\n No. 18-70027\nprocedurally barred from review.” Crutsinger filed a motion for\nreconsideration, emphasizing his intention to “assert ineffective assistance of\ncounsel in the investigation and presentation of mitigation evidence in the\npunishment phase of his trial.” The court denied the motion.\n Crutsinger then filed a federal habeas petition. 8 In his petition,\n“Crutsinger alleged that (1) the trial court failed to suppress evidence resulting\nfrom his illegal arrest in violation of the Fourth Amendment, (2) his trial\ncounsel provided ineffective assistance in failing to timely initiate a social\nhistory investigation, which caused counsel to overlook evidence of his mental\nimpairments caused by alcohol addiction, head trauma, depression, and low\nintelligence, and (3) actual innocence.” 9 Despite Crutsinger’s “failure to\ndevelop the factual basis of these claims in state court,” the district court\ndetermined that “the record contain[ed] sufficient facts to make an informed\ndecision on the merits,” and it reviewed Crutsinger’s IATC claims de novo. 10\nApplying the standard from Strickland v. Washington, 11 the district court\nconcluded that the representation by trial counsel did not fall below an\nobjective standard of reasonableness during the pretrial, guilt, or sentencing\nphases. 12 The court also concluded that, in any event, the record failed to\nsupport a finding of prejudice. 13\n After the district court’s initial ruling on Crutsinger’s federal habeas\npetition, the Supreme Court issued Martinez v. Ryan, 14 which held that\n\n\n\n 8 Id. at 425.\n 9 Id.\n 10 Crutsinger v. Thaler, No. 4:07–CV–703–Y, 2012 WL 369927, at *4 (N.D. Tex. Feb.\n\n6, 2012).\n 11 466 U.S. 668 (1984).\n 12 Crutsinger, 2012 WL 369927, at *5-7, *8-12.\n 13 Id. at *7-8, *12-13.\n 14 566 U.S. 1 (2012).\n\n\n\n 3\n\n Case: 18-70027 Document: 00515021537 Page: 4 Date Filed: 07/03/2019\n\n\n\n No. 18-70027\n“[i]nadequate assistance of counsel at initial-review collateral proceedings may\nestablish cause for a prisoner’s procedural default of a claim of ineffective\nassistance at trial.” 15 Crutsinger then filed a Federal Rule of Civil Procedure\n59(e) motion to vacate the initial habeas judgment. 16 The district court denied\nthe request, concluding that “the claim of ineffective trial counsel raised by\nCrutsinger had no merit and was, therefore, not ‘substantial’ as required by\nMartinez.” 17\n Crutsinger appealed, and we reviewed both the IATC claim and the\nrelated claim that the district court had abused its discretion in denying\nfunding under § 3599. 18 We considered the Supreme Court’s decision in\nMartinez v. Ryan 19 and concluded that “[u]nder Martinez, Crutsinger has to\nestablish that his underlying IAC claim is ‘substantial’ and that his state\nhabeas counsel was ineffective.” 20 We recognized that “Martinez makes this\nsubstantiality standard equivalent to the standard for obtaining a COA.” 21\n With respect to the § 3599 claim, we denied Crutsinger’s request for a\nCOA and affirmed the district court’s disposition. 22 In applying the statutory\nstandard of whether an investigator’s services were “reasonably necessary for\nthe representation of the defendant,” 23 our court construed “[r]easonably\n\n\n\n 15 Id. at 9.\n 16 Crutsinger v. Stephens, 576 F. App’x 422, 425 (5th Cir. 2014), abrogated on other\ngrounds by Ayestas v. Davis, 138 S. Ct. 1080 (2018).\n 17 Crutsinger v. Davis, No. 4:07-CV-00703-Y, 2018 WL 3743881, at *3 (N.D. Tex. Aug.\n\n7, 2018).\n 18 Crutsinger, 576 F. App’x at 426-31.\n 19 566 U.S. 1 (2012).\n 20 Crutsinger, 576 F. App’x at 430.\n 21 Id.\n 22 Id. at 428-31.\n 23 18 U.S.C. § 3599(f) (“Upon a finding that investigative, expert, or other services are\n\nreasonably necessary for the representation of the defendant, whether in connection with\nissues relating to guilt or the sentence, the court may authorize the defendant's attorneys to\n\n 4\n\n Case: 18-70027 Document: 00515021537 Page: 5 Date Filed: 07/03/2019\n\n\n\n No. 18-70027\nnecessary in this context [to] mean[] ‘that a petitioner must demonstrate “a\nsubstantial need” for the requested assistance.’” 24\n Crutsinger then filed a petition for certiorari. 25 With regard to § 3599,\nhe asserted that this court had improperly “hewed to Fifth Circuit precedent\nspecifying that ‘[r]easonably necessary in this context means that a petitioner\nmust demonstrate a substantial need for the requested assistance,’” and that\nthe “‘substantial need’ criteria for § 3599 services” was an “outlier.” 26 This was\nthe only reference to the “substantial need” gloss that the Fifth Circuit had\nplaced on the text of the statute. Crutsinger’s argument and briefing focused\non a “cart-before-horse” rationale. 27 Relying on the Supreme Court’s decisions\nin Martinez v. Ryan 28 and Treviño v. Thaler, 29 Crutsinger asserted that his\nineffective-assistance-of-trial-counsel claim, based on failure to investigate,\nwas procedurally defaulted due to state habeas counsel’s alleged ineffective\nassistance in failing to investigate mitigating evidence and failing to pursue\nthe issue adequately in state habeas proceedings. 30 Crutsinger also argued\nthat in evaluating the merits of his claims and the denial of funds under § 3599,\nthe Fifth Circuit had erred by requiring him “to explain[] what the additional\ninvestigation he requests would reveal [and] how it would have changed the\n\n\n\n\nobtain such services on behalf of the defendant and, if so authorized, shall order the payment\nof fees and expenses therefor . . . .”).\n 24 Crutsinger, 576 F. App’x at 429 (quoting Riley v. Dretke, 362 F.3d 302, 307 (5th Cir.\n\n2004)).\n 25 Petition for Writ of Certiorari, Crutsinger v. Stephens, 135 S. Ct. 1401 (2015) (No.\n\n14-6992).\n 26 Id. at 21 (emphasis omitted) (quoting Crutsinger, 576 F. App’x at 429).\n 27 Id. at 22.\n 28 566 U.S. 1 (2012).\n 29 569 U.S. 413 (2013).\n 30 Petition for Writ of Certiorari at 10-14, Crutsinger v. Stephens, 135 S. Ct. 1401\n\n(2015) (No. 14-6992).\n\n 5\n\n Case: 18-70027 Document: 00515021537 Page: 6 Date Filed: 07/03/2019\n\n\n\n No. 18-70027\nresult of his trial and sentence.” 31 The Supreme Court denied Crutsinger’s\npetition for certiorari. 32\n Three years later, in another case, Ayestas v. Davis, the Supreme Court\nheld that the Fifth Circuit’s requirement that a movant show a “substantial\nneed” to demonstrate that funds were “reasonably necessary” was not\nsupported by the text of § 3599, and that this court’s conclusion that funding\nfor an investigation should not be granted if the claim was procedurally barred\nwas incorrect. 33 The Supreme Court held, “[t]he difference between\n‘reasonably necessary’ and ‘substantially need’ may be small, but the Fifth\nCircuit exacerbated the problem by invoking precedent to the effect that a\nhabeas petitioner seeking funding must present ‘a viable constitutional claim\nthat is not procedurally barred.’” 34 In Ayestas, the Supreme Court expressly\ncited our court’s decision in Crutsinger with disapproval, 35 and all agree that\nour decision in Crutsinger was accordingly abrogated regarding its analysis\nand application of § 3599.\n Crutsinger then returned to federal district court, asserting in a\nRule 60(b)(6) motion that there was a defect in the integrity of his initial\nfederal habeas proceedings because the district court had incorrectly applied\nthe law in assessing his request for funds under § 3599. 36 He requested that\nthe federal district court vacate its judgment and allow him to file a new § 3599\nmotion. 37 He did not seek to overturn the state court’s judgment of conviction\n\n\n\n 31 Id. at 22 (alterations in original) (quoting Crutsinger, 576 F. App’x at 428).\n 32 Crutsinger v. Stephens, 135 S. Ct. 1401 (2015) (No. 14-6992).\n 33 Ayestas v. Davis, 138 S. Ct. 1080, 1093-94 (2018).\n 34 Id. at 1093 (alteration in original) (quoting Ayestas v. Stephens, 817 F.3d 888, 895\n\n(5th Cir. 2016), vacated sub nom. Ayestas v. Davis, 138 S. Ct. 1080 (2018)).\n 35 Id. (citing Crutsinger, 576 F. App’x. at 431).\n 36 ROA.677.\n 37 ROA.703.\n\n\n\n 6\n\n Case: 18-70027 Document: 00515021537 Page: 7 Date Filed: 07/03/2019\n\n\n\n No. 18-70027\nand death sentence, but it is clear from his motion that if substantial additional\nmitigating evidence is discovered, he would seek to set aside his state\nconviction, sentence, or both. The district court determined that his Rule 60(b)\nmotion was “in actuality a second-or-successive petition for habeas relief,”\nwhich deprived the court of jurisdiction. 38 Accordingly, the district court\ntransferred the motion to this court. 39\n II\n The Supreme Court’s decision and reasoning in Gonzalez v. Crosby 40\ncompels the conclusion that Crutsinger’s Rule 60(b)(6) motion is not a\nsuccessive petition for habeas relief within the meaning of 28 U.S.C.\n§ 2244(b)(1). 41 The Gonzalez decision appears to establish that Crutsinger is\nnot entitled to relief under Rule 60(b) because a change in the law does not\nconstitute an extraordinary circumstance, which Rule 60(b)(6) requires. 42\nHowever, we remand the case to the district court to decide the latter issue in\nthe first instance.\n A\n We must determine whether Crutsinger’s Rule 60(b)(6) motion is\nactually a successive habeas petition within the meaning of the Antiterrorism\nand Effective Death Penalty Act (AEDPA). 43 If it is not, the district court’s\norder transferring the case to this court must be vacated.\n\n\n 38 Crutsinger v. Davis, No. 4:07-CV-00703-Y, 2018 WL 3743881, at *1 (N.D. Tex. Aug.\n7, 2018).\n 39 Id.\n 40 545 U.S. 524, 535 (2005).\n 41 See 28 U.S.C. § 2244(b)(1) (“A claim presented in a second or successive habeas\n\ncorpus application under section 2254 that was presented in a prior application shall be\ndismissed.”).\n 42 See Gonzalez, 545 U.S. at 536-37 (construing FED. R. CIV. P. 60(b)(6)).\n 43 See 28 U.S.C. § 2244(b)(1) (“A claim presented in a second or successive habeas\n\ncorpus application under section 2254 that was presented in a prior application shall be\ndismissed.”).\n\n 7\n\n Case: 18-70027 Document: 00515021537 Page: 8 Date Filed: 07/03/2019\n\n\n\n No. 18-70027\n JUSTICE SCALIA, writing for the Court in Gonzalez, explained that “‘[a]s\na textual matter, § 2244(b) applies only where the court acts pursuant to a\nprisoner’s “application”’ for a writ of habeas corpus,” 44 and courts “therefore\nmust decide whether a Rule 60(b) motion filed by a habeas petitioner is a\n‘habeas corpus application’ as the statute uses that term.” 45 “[I]t is clear that\nfor purposes of § 2244(b) an ‘application’ for habeas relief is a filing that\ncontains one or more ‘claims.’” 46 “These statutes, and [Supreme Court]\ndecisions, make clear that a ‘claim’ as used in § 2244(b) is an asserted federal\nbasis for relief from a state court’s judgment of conviction.” 47\n A motion can . . . be said to bring a ‘claim’ if it attacks the federal\n court’s previous resolution of a claim on the merits, since alleging\n that the court erred in denying habeas relief on the merits is\n effectively indistinguishable from alleging that the movant is,\n under the substantive provisions of the statutes, entitled to habeas\n relief. 48\nBy contrast, “[t]hat is not the case . . . when a Rule 60(b) motion attacks, not\nthe substance of the federal court’s resolution of a claim on the merits, but\nsome defect in the integrity of the federal habeas proceedings.” 49\n In Gonzalez, the federal district court had dismissed the petitioner’s\nhabeas petition, concluding that it was barred by AEDPA’s statute of\nlimitations. 50 After that judgment had become final, the Supreme Court issued\na decision in Artuz v. Bennett, 51 which held “that an application for state\n\n\n\n 44 Gonzalez, 545 U.S. at 530 (quoting Calderon v. Thompson, 523 U.S. 538, 554 (1998));\nsee also 28 U.S.C. § 2244(b)(1).\n 45 Gonzalez, 545 U.S. at 530.\n 46 Id.\n 47 Id.\n 48 Id. at 532 (footnote omitted).\n 49 Id.\n 50 Id. at 527.\n 51 531 U.S. 4 (2000).\n\n\n\n 8\n\n Case: 18-70027 Document: 00515021537 Page: 9 Date Filed: 07/03/2019\n\n\n\n No. 18-70027\npostconviction relief can be ‘properly filed’ even if the state courts dismiss it as\nprocedurally barred.” 52 Gonzalez then filed a Rule 60(b)(6) motion “contending\nthat the District Court’s time-bar ruling was incorrect under Artuz’s\nconstruction of § 2244(d).” 53 The district court denied the motion, and the\nEleventh Circuit concluded, en banc, that the Rule 60(b)(6) motion was in\nsubstance a second or successive habeas corpus petition. 54\n The Supreme Court disagreed with the circuit court. The Supreme Court\npointed out that the Rule 60(b)(6) motion at issue in Gonzalez “does not present\na revisitation of the merits” but instead “confines itself not only to the first\nfederal habeas petition, but to a nonmerits aspect of the first federal habeas\nproceeding.” 55 “Because petitioner’s Rule 60(b) motion challenges only the\nDistrict Court’s previous ruling on the AEDPA statute of limitations, it is not\nthe equivalent of a successive habeas petition.” 56\n Crutsinger’s motion for funding is analogous. It does not present a\nrevisitation of the merits of the IATC claim. It is confined to the federal district\ncourt’s denial of funding in the first federal habeas proceeding. It is not a\nsuccessive habeas petition within the meaning of 28 U.S.C. § 2244(b)(1). The\ndistrict court therefore had jurisdiction to consider the Rule 60(b)(6) motion.\n B\n To prevail on a motion under Rule 60(b)(6), a movant must show\n“‘extraordinary circumstances’ justifying the reopening of a final judgment.” 57\nIt would appear that the Supreme Court’s holding in Gonzalez that “not every\n\n\n 52 Gonzalez, 545 U.S. at 527.\n 53 Id.\n 54 Id. at 527-28 (citing Gonzalez v. Sec’y for Dep’t of Corr., 366 F.3d 1253, 1278, 1281-\n\n82 (11th Cir. 2004), aff’d on other grounds sub nom. Gonzalez v. Crosby, 545 U.S. 524 (2005)).\n 55 Id. at 534.\n 56 Id. at 535-36.\n 57 Id. at 535 (citing Ackermann v. United States, 340 U.S. 193, 199 (1950)).\n\n\n\n 9\n\n Case: 18-70027 Document: 00515021537 Page: 10 Date Filed: 07/03/2019\n\n\n\n No. 18-70027\ninterpretation of the federal statutes setting forth the requirements for habeas\nprovides cause for reopening cases long since final” 58 is at least instructive, if\nnot dispositive, of Crutsinger’s Rule 60(b) motion.\n However, a decision of our court has held that we are without jurisdiction\nunless the district court either granted or denied a COA on the “specific issue”\nbefore us. 59 Accordingly, we are foreclosed from treating the district court’s\ntransfer order and Crutsinger’s request for relief in our court as a COA.\nAccordingly, we remand this case to the district court for further proceedings.\n * * *\n We VACATE the district court’s order transferring Crutsinger’s motion\nto this court as a successive petition. We REMAND to the district court to\nconsider the Rule 60(b)(6) motion in the first instance.\n\n\n\n\n 58Id.\n 59Black v. Davis, 902 F.3d 541, 545 (5th Cir. 2018); see also Hernandez v. Thaler, 630\nF.3d 420, 428 (5th Cir. 2011) (per curiam) (citing Ochoa Canales v. Quarterman, 507 F.3d\n884, 888 (5th Cir. 2007) (per curiam)).\n 10\n\n Case: 18-70027 Document: 00515021537 Page: 11 Date Filed: 07/03/2019\n\n\n\n No. 18-70027\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Billy Jack CRUTSINGER, Petitioner-Appellant, v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-03\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-70027 Document: 00515021537 Page: 1 Date Filed: 07/03/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-70027 July 3, 2019\\n Lyle W. Cayce\\nBILLY JACK CRUTSINGER, Clerk\\n\\n\\n Petitioner–Appellant,\\n\\nv.\\n\\nLORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL\\nJUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,\\n\\n Respondent–Appellee.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore SMITH, OWEN, and GRAVES, Circuit Judges.\\nPRISCILLA R. OWEN, Circuit Judge:\\n Billy Jack Crutsinger appeals from the district court’s order transferring\\nhis motion for relief from judgment under Federal Rule of Civil Procedure\\n60(b)(6) to this court. The district court held that Crutsinger’s motion was a\\nsecond-or-successive petition for habeas relief within the meaning of 28 U.S.C.\\n§ 2244(b)(1), and therefore, that the court lacked jurisdiction. We conclude\\nthat the motion was not a successive habeas petition and therefore vacate the\\norder of transfer. However, based on circuit precedent binding on this panel,\\nwe conclude that we lack jurisdiction to treat the transfer order and\\nCrutsinger’s requests for relief in this court as a request for a certificate of\\n\\n Case: 18-70027 Document: 00515021537 Page: 2 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\nappealability (COA). Accordingly, we remand to the district court for further\\nproceedings.\\n I\\n In April 2003, “Crutsinger fatally stabbed eighty-nine-year-old Pearl\\nMagouirk and her seventy-one-year-old daughter, Patricia Syren.” 1 A jury\\nconvicted Crutsinger of capital murder, and the state trial judge sentenced him\\nto death “based on the jury’s answers to the special issues in the court’s\\ncharge.” 2 The Texas Court of Criminal Appeals “affirmed [Crutsinger’s]\\nconviction and sentence on direct appeal.” 3\\n Crutsinger filed a state habeas petition raising eighteen grounds for\\nrelief, including an ineffective-assistance-of-trial counsel (IATC) claim. 4 The\\nstate trial court “issued findings of fact and conclusions of law recommending\\nthat relief be denied.” 5 After “review[ing] the record with respect to the\\nallegations made by [Crutsinger],” the Court of Criminal Appeals adopted the\\ntrial court’s recommendation and denied relief. 6\\n Before initiating federal habeas proceedings, Crutsinger filed a sealed\\napplication for authorization of funding and the appointment of an investigator\\npursuant to 18 U.S.C. § 3599(f). 7 The federal district court denied the request\\nin a sealed order, finding that Crutsinger’s application “fail[ed] to provide the\\ninformation necessary to show that the claim he [sought] to develop [was] not\\n\\n\\n\\n 1 Crutsinger v. Stephens, 576 F. App’x 422, 424 (5th Cir. 2014), abrogated on other\\ngrounds by Ayestas v. Davis, 138 S. Ct. 1080 (2018).\\n 2 Id.\\n 3 Id.; see also Crutsinger v. State, 206 S.W.3d 607, 608 (Tex. Crim. App.), cert. denied,\\n\\n549 U.S. 1098 (2006).\\n 4 Crutsinger, 576 F. App’x at 424.\\n 5 Id.\\n 6 Ex Parte Crutsinger, No. WR-63,481-01, 2007 WL 3277524, at *1 (Tex. Crim. App.\\n\\nNov. 7, 2007).\\n 7 Crutsinger, 576 F. App’x at 424.\\n\\n\\n\\n 2\\n\\n Case: 18-70027 Document: 00515021537 Page: 3 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\nprocedurally barred from review.” Crutsinger filed a motion for\\nreconsideration, emphasizing his intention to “assert ineffective assistance of\\ncounsel in the investigation and presentation of mitigation evidence in the\\npunishment phase of his trial.” The court denied the motion.\\n Crutsinger then filed a federal habeas petition. 8 In his petition,\\n“Crutsinger alleged that (1) the trial court failed to suppress evidence resulting\\nfrom his illegal arrest in violation of the Fourth Amendment, (2) his trial\\ncounsel provided ineffective assistance in failing to timely initiate a social\\nhistory investigation, which caused counsel to overlook evidence of his mental\\nimpairments caused by alcohol addiction, head trauma, depression, and low\\nintelligence, and (3) actual innocence.” 9 Despite Crutsinger’s “failure to\\ndevelop the factual basis of these claims in state court,” the district court\\ndetermined that “the record contain[ed] sufficient facts to make an informed\\ndecision on the merits,” and it reviewed Crutsinger’s IATC claims de novo. 10\\nApplying the standard from Strickland v. Washington, 11 the district court\\nconcluded that the representation by trial counsel did not fall below an\\nobjective standard of reasonableness during the pretrial, guilt, or sentencing\\nphases. 12 The court also concluded that, in any event, the record failed to\\nsupport a finding of prejudice. 13\\n After the district court’s initial ruling on Crutsinger’s federal habeas\\npetition, the Supreme Court issued Martinez v. Ryan, 14 which held that\\n\\n\\n\\n 8 Id. at 425.\\n 9 Id.\\n 10 Crutsinger v. Thaler, No. 4:07–CV–703–Y, 2012 WL 369927, at *4 (N.D. Tex. Feb.\\n\\n6, 2012).\\n 11 466 U.S. 668 (1984).\\n 12 Crutsinger, 2012 WL 369927, at *5-7, *8-12.\\n 13 Id. at *7-8, *12-13.\\n 14 566 U.S. 1 (2012).\\n\\n\\n\\n 3\\n\\n Case: 18-70027 Document: 00515021537 Page: 4 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\n“[i]nadequate assistance of counsel at initial-review collateral proceedings may\\nestablish cause for a prisoner’s procedural default of a claim of ineffective\\nassistance at trial.” 15 Crutsinger then filed a Federal Rule of Civil Procedure\\n59(e) motion to vacate the initial habeas judgment. 16 The district court denied\\nthe request, concluding that “the claim of ineffective trial counsel raised by\\nCrutsinger had no merit and was, therefore, not ‘substantial’ as required by\\nMartinez.” 17\\n Crutsinger appealed, and we reviewed both the IATC claim and the\\nrelated claim that the district court had abused its discretion in denying\\nfunding under § 3599. 18 We considered the Supreme Court’s decision in\\nMartinez v. Ryan 19 and concluded that “[u]nder Martinez, Crutsinger has to\\nestablish that his underlying IAC claim is ‘substantial’ and that his state\\nhabeas counsel was ineffective.” 20 We recognized that “Martinez makes this\\nsubstantiality standard equivalent to the standard for obtaining a COA.” 21\\n With respect to the § 3599 claim, we denied Crutsinger’s request for a\\nCOA and affirmed the district court’s disposition. 22 In applying the statutory\\nstandard of whether an investigator’s services were “reasonably necessary for\\nthe representation of the defendant,” 23 our court construed “[r]easonably\\n\\n\\n\\n 15 Id. at 9.\\n 16 Crutsinger v. Stephens, 576 F. App’x 422, 425 (5th Cir. 2014), abrogated on other\\ngrounds by Ayestas v. Davis, 138 S. Ct. 1080 (2018).\\n 17 Crutsinger v. Davis, No. 4:07-CV-00703-Y, 2018 WL 3743881, at *3 (N.D. Tex. Aug.\\n\\n7, 2018).\\n 18 Crutsinger, 576 F. App’x at 426-31.\\n 19 566 U.S. 1 (2012).\\n 20 Crutsinger, 576 F. App’x at 430.\\n 21 Id.\\n 22 Id. at 428-31.\\n 23 18 U.S.C. § 3599(f) (“Upon a finding that investigative, expert, or other services are\\n\\nreasonably necessary for the representation of the defendant, whether in connection with\\nissues relating to guilt or the sentence, the court may authorize the defendant's attorneys to\\n\\n 4\\n\\n Case: 18-70027 Document: 00515021537 Page: 5 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\nnecessary in this context [to] mean[] ‘that a petitioner must demonstrate “a\\nsubstantial need” for the requested assistance.’” 24\\n Crutsinger then filed a petition for certiorari. 25 With regard to § 3599,\\nhe asserted that this court had improperly “hewed to Fifth Circuit precedent\\nspecifying that ‘[r]easonably necessary in this context means that a petitioner\\nmust demonstrate a substantial need for the requested assistance,’” and that\\nthe “‘substantial need’ criteria for § 3599 services” was an “outlier.” 26 This was\\nthe only reference to the “substantial need” gloss that the Fifth Circuit had\\nplaced on the text of the statute. Crutsinger’s argument and briefing focused\\non a “cart-before-horse” rationale. 27 Relying on the Supreme Court’s decisions\\nin Martinez v. Ryan 28 and Treviño v. Thaler, 29 Crutsinger asserted that his\\nineffective-assistance-of-trial-counsel claim, based on failure to investigate,\\nwas procedurally defaulted due to state habeas counsel’s alleged ineffective\\nassistance in failing to investigate mitigating evidence and failing to pursue\\nthe issue adequately in state habeas proceedings. 30 Crutsinger also argued\\nthat in evaluating the merits of his claims and the denial of funds under § 3599,\\nthe Fifth Circuit had erred by requiring him “to explain[] what the additional\\ninvestigation he requests would reveal [and] how it would have changed the\\n\\n\\n\\n\\nobtain such services on behalf of the defendant and, if so authorized, shall order the payment\\nof fees and expenses therefor . . . .”).\\n 24 Crutsinger, 576 F. App’x at 429 (quoting Riley v. Dretke, 362 F.3d 302, 307 (5th Cir.\\n\\n2004)).\\n 25 Petition for Writ of Certiorari, Crutsinger v. Stephens, 135 S. Ct. 1401 (2015) (No.\\n\\n14-6992).\\n 26 Id. at 21 (emphasis omitted) (quoting Crutsinger, 576 F. App’x at 429).\\n 27 Id. at 22.\\n 28 566 U.S. 1 (2012).\\n 29 569 U.S. 413 (2013).\\n 30 Petition for Writ of Certiorari at 10-14, Crutsinger v. Stephens, 135 S. Ct. 1401\\n\\n(2015) (No. 14-6992).\\n\\n 5\\n\\n Case: 18-70027 Document: 00515021537 Page: 6 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\nresult of his trial and sentence.” 31 The Supreme Court denied Crutsinger’s\\npetition for certiorari. 32\\n Three years later, in another case, Ayestas v. Davis, the Supreme Court\\nheld that the Fifth Circuit’s requirement that a movant show a “substantial\\nneed” to demonstrate that funds were “reasonably necessary” was not\\nsupported by the text of § 3599, and that this court’s conclusion that funding\\nfor an investigation should not be granted if the claim was procedurally barred\\nwas incorrect. 33 The Supreme Court held, “[t]he difference between\\n‘reasonably necessary’ and ‘substantially need’ may be small, but the Fifth\\nCircuit exacerbated the problem by invoking precedent to the effect that a\\nhabeas petitioner seeking funding must present ‘a viable constitutional claim\\nthat is not procedurally barred.’” 34 In Ayestas, the Supreme Court expressly\\ncited our court’s decision in Crutsinger with disapproval, 35 and all agree that\\nour decision in Crutsinger was accordingly abrogated regarding its analysis\\nand application of § 3599.\\n Crutsinger then returned to federal district court, asserting in a\\nRule 60(b)(6) motion that there was a defect in the integrity of his initial\\nfederal habeas proceedings because the district court had incorrectly applied\\nthe law in assessing his request for funds under § 3599. 36 He requested that\\nthe federal district court vacate its judgment and allow him to file a new § 3599\\nmotion. 37 He did not seek to overturn the state court’s judgment of conviction\\n\\n\\n\\n 31 Id. at 22 (alterations in original) (quoting Crutsinger, 576 F. App’x at 428).\\n 32 Crutsinger v. Stephens, 135 S. Ct. 1401 (2015) (No. 14-6992).\\n 33 Ayestas v. Davis, 138 S. Ct. 1080, 1093-94 (2018).\\n 34 Id. at 1093 (alteration in original) (quoting Ayestas v. Stephens, 817 F.3d 888, 895\\n\\n(5th Cir. 2016), vacated sub nom. Ayestas v. Davis, 138 S. Ct. 1080 (2018)).\\n 35 Id. (citing Crutsinger, 576 F. App’x. at 431).\\n 36 ROA.677.\\n 37 ROA.703.\\n\\n\\n\\n 6\\n\\n Case: 18-70027 Document: 00515021537 Page: 7 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\nand death sentence, but it is clear from his motion that if substantial additional\\nmitigating evidence is discovered, he would seek to set aside his state\\nconviction, sentence, or both. The district court determined that his Rule 60(b)\\nmotion was “in actuality a second-or-successive petition for habeas relief,”\\nwhich deprived the court of jurisdiction. 38 Accordingly, the district court\\ntransferred the motion to this court. 39\\n II\\n The Supreme Court’s decision and reasoning in Gonzalez v. Crosby 40\\ncompels the conclusion that Crutsinger’s Rule 60(b)(6) motion is not a\\nsuccessive petition for habeas relief within the meaning of 28 U.S.C.\\n§ 2244(b)(1). 41 The Gonzalez decision appears to establish that Crutsinger is\\nnot entitled to relief under Rule 60(b) because a change in the law does not\\nconstitute an extraordinary circumstance, which Rule 60(b)(6) requires. 42\\nHowever, we remand the case to the district court to decide the latter issue in\\nthe first instance.\\n A\\n We must determine whether Crutsinger’s Rule 60(b)(6) motion is\\nactually a successive habeas petition within the meaning of the Antiterrorism\\nand Effective Death Penalty Act (AEDPA). 43 If it is not, the district court’s\\norder transferring the case to this court must be vacated.\\n\\n\\n 38 Crutsinger v. Davis, No. 4:07-CV-00703-Y, 2018 WL 3743881, at *1 (N.D. Tex. Aug.\\n7, 2018).\\n 39 Id.\\n 40 545 U.S. 524, 535 (2005).\\n 41 See 28 U.S.C. § 2244(b)(1) (“A claim presented in a second or successive habeas\\n\\ncorpus application under section 2254 that was presented in a prior application shall be\\ndismissed.”).\\n 42 See Gonzalez, 545 U.S. at 536-37 (construing FED. R. CIV. P. 60(b)(6)).\\n 43 See 28 U.S.C. § 2244(b)(1) (“A claim presented in a second or successive habeas\\n\\ncorpus application under section 2254 that was presented in a prior application shall be\\ndismissed.”).\\n\\n 7\\n\\n Case: 18-70027 Document: 00515021537 Page: 8 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\n JUSTICE SCALIA, writing for the Court in Gonzalez, explained that “‘[a]s\\na textual matter, § 2244(b) applies only where the court acts pursuant to a\\nprisoner’s “application”’ for a writ of habeas corpus,” 44 and courts “therefore\\nmust decide whether a Rule 60(b) motion filed by a habeas petitioner is a\\n‘habeas corpus application’ as the statute uses that term.” 45 “[I]t is clear that\\nfor purposes of § 2244(b) an ‘application’ for habeas relief is a filing that\\ncontains one or more ‘claims.’” 46 “These statutes, and [Supreme Court]\\ndecisions, make clear that a ‘claim’ as used in § 2244(b) is an asserted federal\\nbasis for relief from a state court’s judgment of conviction.” 47\\n A motion can . . . be said to bring a ‘claim’ if it attacks the federal\\n court’s previous resolution of a claim on the merits, since alleging\\n that the court erred in denying habeas relief on the merits is\\n effectively indistinguishable from alleging that the movant is,\\n under the substantive provisions of the statutes, entitled to habeas\\n relief. 48\\nBy contrast, “[t]hat is not the case . . . when a Rule 60(b) motion attacks, not\\nthe substance of the federal court’s resolution of a claim on the merits, but\\nsome defect in the integrity of the federal habeas proceedings.” 49\\n In Gonzalez, the federal district court had dismissed the petitioner’s\\nhabeas petition, concluding that it was barred by AEDPA’s statute of\\nlimitations. 50 After that judgment had become final, the Supreme Court issued\\na decision in Artuz v. Bennett, 51 which held “that an application for state\\n\\n\\n\\n 44 Gonzalez, 545 U.S. at 530 (quoting Calderon v. Thompson, 523 U.S. 538, 554 (1998));\\nsee also 28 U.S.C. § 2244(b)(1).\\n 45 Gonzalez, 545 U.S. at 530.\\n 46 Id.\\n 47 Id.\\n 48 Id. at 532 (footnote omitted).\\n 49 Id.\\n 50 Id. at 527.\\n 51 531 U.S. 4 (2000).\\n\\n\\n\\n 8\\n\\n Case: 18-70027 Document: 00515021537 Page: 9 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\npostconviction relief can be ‘properly filed’ even if the state courts dismiss it as\\nprocedurally barred.” 52 Gonzalez then filed a Rule 60(b)(6) motion “contending\\nthat the District Court’s time-bar ruling was incorrect under Artuz’s\\nconstruction of § 2244(d).” 53 The district court denied the motion, and the\\nEleventh Circuit concluded, en banc, that the Rule 60(b)(6) motion was in\\nsubstance a second or successive habeas corpus petition. 54\\n The Supreme Court disagreed with the circuit court. The Supreme Court\\npointed out that the Rule 60(b)(6) motion at issue in Gonzalez “does not present\\na revisitation of the merits” but instead “confines itself not only to the first\\nfederal habeas petition, but to a nonmerits aspect of the first federal habeas\\nproceeding.” 55 “Because petitioner’s Rule 60(b) motion challenges only the\\nDistrict Court’s previous ruling on the AEDPA statute of limitations, it is not\\nthe equivalent of a successive habeas petition.” 56\\n Crutsinger’s motion for funding is analogous. It does not present a\\nrevisitation of the merits of the IATC claim. It is confined to the federal district\\ncourt’s denial of funding in the first federal habeas proceeding. It is not a\\nsuccessive habeas petition within the meaning of 28 U.S.C. § 2244(b)(1). The\\ndistrict court therefore had jurisdiction to consider the Rule 60(b)(6) motion.\\n B\\n To prevail on a motion under Rule 60(b)(6), a movant must show\\n“‘extraordinary circumstances’ justifying the reopening of a final judgment.” 57\\nIt would appear that the Supreme Court’s holding in Gonzalez that “not every\\n\\n\\n 52 Gonzalez, 545 U.S. at 527.\\n 53 Id.\\n 54 Id. at 527-28 (citing Gonzalez v. Sec’y for Dep’t of Corr., 366 F.3d 1253, 1278, 1281-\\n\\n82 (11th Cir. 2004), aff’d on other grounds sub nom. Gonzalez v. Crosby, 545 U.S. 524 (2005)).\\n 55 Id. at 534.\\n 56 Id. at 535-36.\\n 57 Id. at 535 (citing Ackermann v. United States, 340 U.S. 193, 199 (1950)).\\n\\n\\n\\n 9\\n\\n Case: 18-70027 Document: 00515021537 Page: 10 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\ninterpretation of the federal statutes setting forth the requirements for habeas\\nprovides cause for reopening cases long since final” 58 is at least instructive, if\\nnot dispositive, of Crutsinger’s Rule 60(b) motion.\\n However, a decision of our court has held that we are without jurisdiction\\nunless the district court either granted or denied a COA on the “specific issue”\\nbefore us. 59 Accordingly, we are foreclosed from treating the district court’s\\ntransfer order and Crutsinger’s request for relief in our court as a COA.\\nAccordingly, we remand this case to the district court for further proceedings.\\n * * *\\n We VACATE the district court’s order transferring Crutsinger’s motion\\nto this court as a successive petition. We REMAND to the district court to\\nconsider the Rule 60(b)(6) motion in the first instance.\\n\\n\\n\\n\\n 58Id.\\n 59Black v. Davis, 902 F.3d 541, 545 (5th Cir. 2018); see also Hernandez v. Thaler, 630\\nF.3d 420, 428 (5th Cir. 2011) (per curiam) (citing Ochoa Canales v. Quarterman, 507 F.3d\\n884, 888 (5th Cir. 2007) (per curiam)).\\n 10\\n\\n Case: 18-70027 Document: 00515021537 Page: 11 Date Filed: 07/03/2019\\n\\n\\n\\n No. 18-70027\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2984,"cells":{"id":{"kind":"number","value":4637387,"string":"4,637,387"},"name":{"kind":"string","value":"M. D., BY NEXT FRIEND Sarah R. STUKENBERG ; Z. H., by Next Friend Carla B. Morrison ; S. A., by Next Friend Javier Solis ; A. M., by Next Friend Jennifer Talley; J. S., by Next Friend Anna J. Ricker; H. v. by Next Friend Anna J. Ricker; L. H., by Next Friend Estela C. Vasquez; C. H., by Next Friend Estela C. Vasquez; A. R., by Next Friend Tom McKenzie, Individually and on Behalf of All Other Similarly Situated, Plaintiffs-Appellees v. Greg ABBOTT, in His Official Capacity as Governor of the State of Texas; Courtney Phillips, in Her Official Capacity as Executive Commissioner of the Health and Human Services Commission of Texas; Henry Whitman, Jr., in His Official Capacity as Commissioner of the Department of Family and Protective Services of the State of Texas, Defendants-Appellants"},"name_abbreviation":{"kind":"string","value":"M. D.,By Next Friend Stukenberg v. Abbott"},"decision_date":{"kind":"string","value":"2019-07-08"},"docket_number":{"kind":"string","value":"18-40057"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Higginbotham, Smith, Clement\", \"parties\": \"\", \"opinions\": [{\"author\": \"EDITH BROWN CLEMENT, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-40057 Document: 00515024789 Page: 1 Date Filed: 07/08/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n July 8, 2019\\n No. 18-40057\\n Lyle W. Cayce\\n Clerk\\nM. D., by next friend Sarah R. Stukenberg; Z. H., by next friend Carla B.\\nMorrison; S. A., by next friend Javier Solis; A. M., by next friend Jennifer\\nTalley; J. S., by next friend Anna J. Ricker; H. V., by next friend Anna J.\\nRicker; L. H., by next friend Estela C. Vasquez; C. H., by next friend Estela\\nC. Vasquez; A. R., by next friend Tom McKenzie, individually and on behalf\\nof all other similarly situated,\\n\\n Plaintiffs - Appellees\\n\\nv.\\n\\nGREG ABBOTT, in his official capacity as Governor of the State of Texas;\\nCOURTNEY PHILLIPS, in her official capacity as Executive Commissioner\\nof the Health and Human Services Commission of Texas; HENRY\\nWHITMAN, JR., in his official capacity as Commissioner of the Department\\nof Family and Protective Services of the State of Texas,\\n\\n Defendants - Appellants\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.\\nEDITH BROWN CLEMENT, Circuit Judge:\\n This case returns to us after a limited remand. After our opinion in M.D.\\nby Stukenberg v. Abbott (Stukenberg I), 907 F.3d 237 (5th Cir. 2018), the\\ndistrict court was tasked with modifying its injunction remedying certain\\nconstitutional deficiencies in Texas’s foster-care system. The State now asks\\n 35\\n\\n Case: 18-40057 Document: 00515024789 Page: 2 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\nus to vacate many of the modified injunction’s provisions. For the following\\nreasons, the modified injunction is affirmed in part, affirmed with modification\\nin part, and vacated in part.\\n I.\\n This case’s underlying facts are thoroughly laid out in Stukenberg I, 907\\nF.3d at 243–47. In short, this case is about the constitutionality of Texas’s\\nfoster-care system. Plaintiffs are a certified class of minor children in the\\npermanent management conservatorship (PMC) of the Department of Family\\nProtective Services (DFPS). We previously found that DFPS’s policies violated\\nPlaintiffs’ substantive-due-process rights in two ways: (1) by maintaining\\noverburdened caseworkers who are responsible for the children in the PMC;\\nand (2) by failing to adequately monitor and oversee the children in the\\nlicensed foster care (LFC) subclass. Id. at 256–68. But we reversed the district\\ncourt’s other two liability findings. Id. at 268–70. We did not believe that\\nDFPS’s placement array or the foster group homes—in and of themselves—\\ncreated a constitutionally cognizable harm to the children. Id.\\n Based on these findings, we evaluated the district court’s extensive\\ninjunction, which mandated dozens of specific remedial measures. Id. at 271–\\n87. We noted that an injunction must be narrowly tailored to cure the specific\\nconstitutional violations at issue and must not go beyond what is “minimally\\nrequired” to bring the State into constitutional compliance. Id. at 272. With\\nthis standard in mind, we validated and invalidated many of the injunction’s\\nspecific provisions. Id. at 271–87. We concluded by remanding the case to\\nmodify the permanent injunction “consistent with this opinion.” Id. at 288. The\\nremand was a limited one. Id.\\n After Stukenberg I issued, the district court promptly requested briefing\\non how to comply with Stukenberg I. And in November 2018, the district court\\n\\n\\n 2\\n\\n Case: 18-40057 Document: 00515024789 Page: 3 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\nissued the modified injunction. The State now appeals, unhappy with the\\ndistrict court’s revisions.\\n II.\\n Whether a modified injunction comports with a remand order is reviewed\\nde novo. See Ball v. LeBlanc, 881 F.3d 346, 350–51 (5th Cir. 2018). The district\\ncourt must “implement both the letter and the spirit of the appellate court’s\\nmandate and . . . not disregard the explicit directives of that court.” United\\nStates v. Lee, 358 F.3d 315, 321 (5th Cir. 2004). It cannot reopen issues\\nexpressly or implicitly decided by the appellate court. Gene & Gene, LLC v.\\nBioPay, LLC, 624 F.3d 698, 702 (5th Cir. 2010).\\n At the same time, the grant of a permanent injunction is reviewed for an\\nabuse of discretion. Stukenberg I, 907 F.3d at 248.\\n III.\\n The State argues that many of the modified injunction’s provisions are\\nimproper, either because they are inconsistent with Stukenberg I, are outside\\nthe scope of the limited remand, or are substantively problematic. The specific\\nprovisions at issue are: (1) the 24-hour-supervision provisions; (2) the face-to-\\nface-meeting provision; (3) the workload-study provisions; (4) the integrated-\\ncomputer-system provisions; (5) the missing-medical-records provision; (6) the\\nMonitor provisions; and (7) the termination provisions. We take them in that\\norder.\\n A.\\n In its 2015 liability opinion, the district court prohibited the State from\\nplacing children in “foster group homes that lack 24-hour awake-night\\nsupervision.” We did not disturb that ruling in Stukenberg I. On remand, the\\ndistrict court expanded the supervision requirement to apply to all PMC\\nplacements housing more than six children. The State urges that this\\nexpansion improperly exceeds the scope of the limited remand.\\n 3\\n\\n Case: 18-40057 Document: 00515024789 Page: 4 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\n In making this argument, the State misconstrues ODonnell v. Goodhart\\n(ODonnell II), where this court considered whether a modified injunction\\ndealing with Texas’s bail system complied with the mandate rule. 900 F.3d 220\\n(5th Cir. 2018). In a previous case, we had vacated the original preliminary\\ninjunction over the bail system and remanded so that the district court could\\n“craft a revised injunction—one that is narrowly tailored to cure the\\nconstitutional deficiencies the district court properly identified.” ODonnell v.\\nHarris Cty. (ODonnell I), 892 F.3d 147, 166–67 (5th Cir. 2018). In ODonnell II,\\nthis court found that a particular provision fell “outside the confines of [the]\\nnarrow remand” because it addressed a problem not “originally identified” by\\nthe district court. 900 F.3d at 225. This court continued: “Remand is not the\\ntime to bring new issues that could have been raised initially.” Id.\\n Such is not the case here. In Stukenberg I, we recognized that the 24-\\nhour-supervision requirement had remedied the “most egregious” problem\\nwith the foster group homes: a “lack of adequate supervision.” 907 F.3d 237,\\n270. The district court’s original injunction addressed that violation, albeit in\\nan overbroad manner. Indeed, we invalidated the original provision\\nprohibiting “any family-like placement that houses more than six children”\\nbecause we failed to see why—absent the supervision problems—the\\nconditions in the foster group homes unconstitutionally amplified the risk of\\nharm to the children. Id. at 270, 282. In contrast, rather than outright banning\\nplacements housing more than six children, the modified injunction simply\\nrequires 24-hour-supervision. In doing so, it hews more closely to the violation\\nidentified in Stukenberg I: the lack of proper supervision. Thus, this case is\\nunlike ODonnell II, as the district court has not attempted to rectify a newly\\nidentified problem.\\n In addition to its primary argument, the State also notes that the\\nmodified injunction’s 24-hour-supervision requirement would apply not only to\\n 4\\n\\n Case: 18-40057 Document: 00515024789 Page: 5 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\nLFC placements but also to unlicensed placements, such as kinship placements\\nin which a child is placed with a relative. This would be problematic. Plaintiffs\\ndo not object to modifying the requirement to clarify that it applies only to LFC\\nplacements. So we do exactly that. The 24-hour-supervision requirement is\\naffirmed with the modification that it applies only to LFC placements, not\\nunlicensed placements.\\n B.\\n In Stukenberg I, we invalidated many “caseload-specific injunction\\nprovisions.” 907 F.3d at 274. We did so because they “exceed[ed] what [was]\\nrequired to achieve constitutional compliance or [did] not directly address the\\nproblems giving rise to the caseload management violation.” Id. Among the\\nprovisions struck down for these reasons was one prohibiting DFPS from using\\nI-See-You (ISY) workers. 1 Id.\\n Despite our elimination of this provision, the district court reinserted a\\nsimilar one in the modified injunction. The injunction now requires that all\\nmonthly face-to-face meetings with the PMC children be conducted by primary\\ncaseworkers, not ISY workers. The State argues that the new provision is a\\nreincarnation of the invalidated one banning the use of ISY workers. While\\nnominally allowing ISY workers to exist, the new face-to-face provision\\neliminates their primary responsibility. Thus, the State argues that it is\\ninconsistent with Stukenberg I.\\n In response, Plaintiffs exclaim that the face-to-face provision is one of\\nthe modified injunction’s most important. On their account, it “directly\\naddresses the fundamental problems with the State’s existing practices with\\nregard to secondary caseworkers.” They then spill much ink pointing out the\\n\\n\\n 1 ISY workers are secondary caseworkers who help the primary caseworkers. 907 F.3d\\nat 245. They do so mainly by conducting in-home visits and confirming that the child “is still\\nthere.” Id.\\n 5\\n\\n Case: 18-40057 Document: 00515024789 Page: 6 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\ndeficiencies of ISY workers when it comes to conducting face-to-face visits with\\nthe PMC children and the virtues of requiring primary caseworkers (who have\\nmore training and experience) to conduct all face-to-face visits.\\n While Plaintiffs are correct that the State’s use of ISY workers has many\\nproblems, their argument fails to acknowledge that we did not find those\\nproblems constitutionally suspect in Stukenberg I. We discussed the\\ninsufficiency of ISY workers solely to show that DFPS’s use of them did not\\nshow a reasonable effort to alleviate the substantial risks associated with\\noverburdened primary caseworkers. 907 F.3d at 262–63. It was the crushing\\nworkload on primary caseworkers—not ISY workers’ face-to-face visits—that\\nwe held violated Plaintiffs’ substantive-due-process rights. Id. at 264–65. And\\nit is in relation to that violation that the district court was supposed to revise\\nthe injunction.\\n With this violation in mind, the modified injunction’s face-to-face\\nprovision cannot stand. Imposing on primary caseworkers the additional duty\\nof conducting all face-to-face visits no more “directly address[es] the problems\\ngiving rise to the caseload management violation” than does the invalidated\\nprovision eliminating ISY workers. Id. at 274. In fact, it would likely increase\\ntheir workload. It appears that this provision was the district court’s well-\\nintentioned attempt to fix the problems with ISY workers’ face-to-face visits.\\nBut eliminating those problems was not what the district court was charged\\nwith doing on remand.\\n The face-to-face provision is vacated as being inconsistent with\\nStukenberg I.\\n C.\\n The first time around, we struck down the caseload caps on primary\\ncaseworkers and the Residential Child Care Licensing (RCCL) investigators,\\nbut we also made clear that DFPS should “determine how many cases, on\\n 6\\n\\n Case: 18-40057 Document: 00515024789 Page: 7 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\naverage, caseworkers” and RCCL investigators can safely manage and should\\nthen establish internal guidelines for caseload ranges. Stukenberg I, 907 F.3d\\nat 274, 279. On remand, the district court implemented this recommendation\\nby ordering DFPS to conduct workload studies as to both types of workers. Yet\\nit did not leave the studies’ planning and execution solely in the hands of\\nDFPS. Instead, it stated that “DFPS, in consultation with and under\\nsupervision of the Monitors, shall propose [workload studies]” at which point\\nthe court would “convene a hearing to review the proposal[s].”\\n The State contends that by requiring the workload studies to be done\\nunder the Monitors’ and the court’s supervision, the district court deviated\\nfrom Stukenberg I’s instructions. The Stukenberg I opinion makes clear, the\\nState says, that DFPS should be able to determine—all on its own—how many\\ncases, on average, caseworkers and RCCL investigators can safely carry.\\n We reject the State’s argument. The district court undoubtedly has the\\nequitable power to oversee compliance with its own injunction. The supervision\\nrequirement over the workload studies simply makes explicit that implicit\\npower. We do not read Stukenberg I as forbidding the court from exercising\\ncontrol and supervision over the workload studies—especially when the State\\nhas a history of conducting them inadequately. See 907 F.3d at 261. Moreover,\\ndespite the supervision and input from the Monitors and the district court,\\nDFPS will still be involved in designing and conducting the workload studies,\\nand reaching conclusions from them. All this is to say, the district court’s\\nsupervision requirement is faithful to the spirit of Stukenberg I and does not\\ndo clear violence to its letter. 2 See Lee, 358 F.3d at 321 (noting that the district\\n\\n\\n\\n\\n 2 The State also complains that it is impossible to design and conduct the studies\\nwithin the 60-day timeframe the district court imposed. Should that be the case, the State\\ncan always move for an extension, which the court should generously consider.\\n 7\\n\\n Case: 18-40057 Document: 00515024789 Page: 8 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\ncourt must “implement both the letter and the spirit of the appellate court’s\\nmandate”).\\n D.\\n Next, we turn to the integrated-computer-system requirement. We\\npreviously upheld the original injunction’s provision demanding the creation\\nof an “integrated computer system” containing the PMC children’s “complete\\nrecords, including but not limited to a complete migration of all medical,\\ndental, educational, placement recommendations, court records, mental health\\nand caseworker records.” Stukenberg I, 907 F.3d at 282–83. The district court\\nreincorporated this provision into the modified injunction and also included a\\nprovision giving all relevant personnel access to the complete records in the\\nintegrated computer system. 3\\n The State does not deny that the district court faithfully adhered to\\nStukenberg I by reincorporating these provisions. Nor could it. Rather, it seeks\\nto reargue on the merits that the integrated-computer-system requirement\\nshould be invalidated because it is unprecedented, tremendously expensive,\\nand maybe even impossible to accomplish.\\n We treat the State’s request as a quasi-motion for reconsideration on this\\nissue. 4 And after careful review, we see that our initial decision upholding the\\nintegrated computer system was erroneous. It is inconsistent with the broader\\n\\n\\n\\n 3 In Stukenberg I, we did not expressly validate the requirement that all personnel\\nhave access to the complete records. We inadvertently listed the provision creating the\\ncomputer system twice, instead of listing the accompanying access provision. 907 F.3d 282–\\n83. No one disputes that Stukenberg I intended to validate the access provision as well.\\n 4 We can do so because the mandate has not issued in Stukenberg I; the remand was\\n\\nlimited, and we retained jurisdiction. But by saying the mandate never issued, we do not\\nmean to suggest that the district court was free to disregard Stukenberg I. It was not.\\nConsequently, it is appropriate—as we have done throughout this opinion—to use the\\nmandate rule (technically not quite on point) to evaluate the district court’s compliance with\\nStukenberg I. We hold only that we, as the appellate panel that issued Stukenberg I, can\\nreconsider our own prior holdings after a limited remand when the mandate never issued.\\n 8\\n\\n Case: 18-40057 Document: 00515024789 Page: 9 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\nremedial principles we laid out in Stukenberg I. The multimillion-dollar\\ncomputer-system overhaul—while maybe a best practice—goes well beyond\\nwhat is minimally required to remedy the caseload and oversight violations.\\nIndeed, we find it (just like the caseload cap) to be “too blunt a remedy for a\\ncomplex problem.” 907 F.3d at 274. An integrated computer system, which at\\nmost two other States use, cannot represent the constitutional floor for record-\\nkeeping.\\n Accordingly, we now invalidate the integrated-computer-system\\nrequirement and the accompanying access provision. The goal is a\\nconstitutionally effective foster-care program, not a specific kind of computer\\nsystem used to help achieve that goal.\\n E.\\n Invoking our expressed validation of the integrated computer system,\\nthe district court ordered DFPS on remand “to address and remediate missing\\nand nonexistent medical and mental health care records.” According to the\\ndistrict court, a comprehensive computer system “would not be effective for\\npreventing an unreasonable risk of serious harm if medical records were\\nmissing or nonexistent.” Because we have invalidated the integrated computer\\nsystem, there is no longer a justification for this provision. Therefore, it is\\nvacated as well.\\n F.\\n Next up are the Monitor provisions. The original injunction contained 13\\nprovisions appointing and listing the Monitors’ duties. We did not address\\nthose provisions in Stukenberg I. The modified injunction includes those 13\\noriginal provisions plus 3 new ones. The new provisions (1) give the Monitors\\nremote access to the electronic systems DFPS uses to store data about the PMC\\nchildren, (2) compel DFPS to “supply the Monitors [with] raw data relevant to\\nthe 2015–2016 workstudy conducted by DFPS” and all the available data\\n 9\\n\\n Case: 18-40057 Document: 00515024789 Page: 10 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\n“relevant to all previous third-party studies,” and (3) command the State to\\npay the Monitors. The State lodges both procedural and substantive attacks\\nagainst these provisions.\\n On the procedural side, the State argues that the limited remand is not\\nthe time to impose new requirements that could have been included in the\\noriginal permanent injunction. For support, the State again draws on\\nODonnell II. But once more it is distinguishable. The problematic injunctive\\nprovision in ODonnell II was substantive. It attempted to remedy a\\nconstitutional deficiency the original injunction did not identify. 900 F.3d 220\\nat 225. The Monitor provisions, on the other hand, are administrative. They do\\nnot attempt to solve a new constitutional puzzle originally left unaddressed by\\nthe district court; they simply represent the district court’s revised attempt to\\nensure that the State fixes the constitutional problems it identified (and we\\naffirmed) in the original injunction.\\n As the State’s procedural argument is unavailing, we now turn to its\\nsubstantive objections, which concern the remote access and third-party data. 5\\n First, the State argues that the new provision providing the “Monitors,\\ntheir staff[,] and consultants with unrestricted, routine and ongoing remote\\naccess” to DFPS’s electronic systems is a serious confidentiality risk and could\\nresult in the inadvertent alteration or destruction of vital records. The State is\\nprimarily concerned with giving such unrestricted access to the staff and\\nconsultants without requiring them to keep the information confidential. As\\nthe State correctly points out, they may not be qualified to handle such\\nsensitive information. The district court’s failure to address these legitimate\\nconfidentiality concerns was an abuse of discretion. So while we affirm the\\n\\n\\n\\n 5The State has no substantive complaints about the provision compelling it to\\ncompensate the Monitors.\\n 10\\n\\n Case: 18-40057 Document: 00515024789 Page: 11 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\nremote-access provision, we modify the injunction to require that any of the\\nMonitors’ staff and consultants who have unrestricted, remote access to\\nDFPS’s systems be qualified to handle the information (including screening for\\ncriminal history), be taught how to use the systems, and be given\\nconfidentiality agreements to sign.\\n Second, the State argues that requiring DFPS to turn over “all available\\nraw data relevant to all previous third-party studies” is overly burdensome,\\nwasteful, and has no conceivable benefit. Plaintiffs do not contest this point in\\ntheir brief. And we agree that requiring the State to turn over this data was\\nan abuse of discretion. The district court made no findings justifying such an\\nexpensive and time-consuming production. Nor did it state what the purpose\\nof doing so would be. We vacate the injunctive provision dealing with the\\nprevious third-party studies. This vacatur does not apply to the data relevant\\nto the 2015–2016 workstudy to which the State has no objection.\\n G.\\n Finally, the State objects to the modified injunction’s termination\\nprovisions. These same provisions were in the original injunction, yet we heard\\nnothing from the State about them in the original appeal. The State cannot\\nnow challenge these provisions. It is too late for that. The State’s arguments\\nare waived. See Med. Ctr. Pharmacy v Holder, 634 F.3d 830, 834 (5th Cir. 2011)\\n(“The waiver doctrine bars consideration of an issue that a party could have\\nraised in an earlier appeal in the case.” (quotation omitted)).\\n\\n\\n IV.\\n As an administrative matter, Plaintiffs would like the stay lifted in full.\\nWe decline to do so, and the stay will remain in place until the final mandate\\nissues.\\n\\n\\n 11\\n\\n Case: 18-40057 Document: 00515024789 Page: 12 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\n * * *\\n For the foregoing reasons, we AFFIRM in part, AFFIRM with\\nMODIFICATION in part, and VACATE in part. The case is remanded to the\\ndistrict court to begin implementing, without further changes, the modified\\ninjunction with the alterations we have made.\\n\\n\\n\\n\\n 12\\n\\n Case: 18-40057 Document: 00515024789 Page: 13 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4414640/\", \"author_raw\": \"EDITH BROWN CLEMENT, Circuit Judge:\"}, {\"author\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge, dissenting as to parts III.D\\nand III.E, and otherwise concurring.\\n\\n I cannot join the majority’s continued erasing of relief carefully\\nconstructed by the district court to remedy DFPS’s recognized constitutional\\nviolations. 1 With this agency the devil is in the details, and the district court\\nstructured a remedy with particularized provisions, responsive to its detailed\\nfactual findings and focused study by its appointed Special Masters. This panel\\nunanimously upheld several important and strong directives, but the majority\\nsimultaneously removed others that were essential to remediating the State’s\\ndeliberate indifference. In doing so, the majority did not engage the district\\ncourt’s detailed factual findings underlying its remedial relief. It rather\\ndispatched groups of provisions as superfluous and not narrowly tailored to the\\nconstitutional wrong with no deference to those findings. 2\\n Today, I turn to the most recent of the majority’s excisions, affecting an\\narea of overarching importance: a records system, not a backwards-looking\\nretention of data, but rather a forward-looking process that would empower\\nenfeebled caseworkers and bring needed administrative transparency, serving\\na role not unlike medical records in a hospital—a necessity. Indeed, with its\\nfirst myriad excisions of remedies targeting specific problems—not least\\nvacatur of the caseload cap requirement, addressing the core problem of\\noverloaded caseworkers—the majority left the record system in place, leaving\\nit to play an even greater role, one central to the remedy for the found\\nconstitutional wrong. And now the majority strikes even the provisions for\\ncreating an integrated record keeping process.\\n\\n\\n\\n 1 The attached Appendix sets out the previously excised remedial provisions, along\\nwith the majority’s rationale for each removal. See Appendix, infra.\\n 2 See M.D. by Stukenberg v. Abbott (Stukenberg I), 907 F.3d 237, 297–303 (5th Cir.\\n\\n2018) (Higginbotham, J., concurring in part and dissenting in part).\\n 13\\n\\n Case: 18-40057 Document: 00515024789 Page: 14 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\n With respect, in vacating provisions ordering DFPS to create an\\nintegrated computer system to rationalize record keeping for PMC children,\\nthe majority completes its walk away from the district court’s interlaced\\nremedial scheme, taking away provisions essential to its success. Simply put,\\nthese removed injunctive provisions would strike at DFPS’s administrative\\nchaos and inefficiency, problems at the heart of the agency’s failure to protect\\nthe thousands of PMC children entrusted to its custody. Recognizing this, we\\nunanimously affirmed their inclusion in Stukenberg I. Nothing has changed in\\nlaw, fact, or argument, yet the majority vacates these provisions today, a\\ndecision flawed by the evidence and controlling legal principles.\\n\\n I.\\n The State did not previously challenge our decision in Stukenberg I. To\\nthe contrary, we remanded “for modification [of the injunction] consistent with\\nth[e] opinion.” 3 On remand, determined to protect its earlier successful efforts\\nto strip many injunctive provisions in Stukenberg I, the State reminded the\\ndistrict court that the scope of the remand was “narrow,” and that,\\n The Court should address only the language and\\n provisions in the Final Order that the Fifth Circuit\\n identified as requiring modification . . . adher[ing]\\n strictly to the Fifth Circuit’s directives and reasoning\\n when modifying the remedial provisions. . . . Issues or\\n arguments that are not expressly addressed in the\\n Fifth Circuit’s non-dispositive opinion are beyond the\\n scope of a limited remand.\\n Our remand order contemplated that these same limitations of scope\\nwould apply to any further appeal from the remand, for the review would be\\nonly of the district court’s modifications of the injunctive relief, that is, for\\n\\n\\n\\n\\n 3 Id. at 288 (majority opinion).\\n 14\\n\\n Case: 18-40057 Document: 00515024789 Page: 15 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\ncompliance with our remand order. So, when the State filed its notice of appeal,\\nwe stayed implementation of the district court’s order, stating,\\n The district court’s original injunctive order\\n included provisions that were not challenged,\\n provisions that were challenged and upheld, and\\n provisions that were challenged and invalidated by\\n this court. Although the appellants’ brief has not yet\\n been filed, we assume that the issue on this new\\n appeal is whether the ordered modifications were\\n implemented.\\n The State then filed its brief urging error in the district court’s\\nimplementation of our modifications. Consistent with its efforts to preserve its\\nearlier success, it had not objected to the integrated computer system\\nprovisions in the district court on remand. Now, it timorously asks this court\\nto “reevaluat[e]” the integrated computer system provisions, tacking on a new\\nargument in six pages of a 55-page brief. At oral argument, the State’s counsel\\nconcentrated on modification issues, only asking that we revisit the record-\\nkeeping request with a nigh off-the-cuff contention that Stukenberg I had\\ndemanded “best practices,” that, to counsel’s knowledge, no other state uses\\nsuch an integrated digital system. Plaintiffs’ counsel responded that at least\\nthree other states have used integrated systems for years—with no argument\\nto the contrary from the State’s counsel in reply. 4 For example, in Tennessee,\\n\\n\\n 4 Texas does not stand alone in currently facing litigation over its foster care system\\nbased in part on deficient record-keeping. See Complaint at 59–61, McIntyre ex rel. M.B. v.\\nColyer, No. 18-cv-2617 (D. Kan. Nov. 16, 2018), ECF No. 1 (describing data failures in\\nKansas’s foster care system, including failure to adequately document children’s mental\\nhealth needs and information about monthly visits); First Amended Complaint at 29–34,\\nM.B. by Eggemeyer v. Tidball, No. 2:17-cv-4102-NKL (W.D. Mo. July 3, 2017), ECF No. 22\\n(describing the Missouri foster care system’s failure to maintain centralized medical records\\nfor children in its care). Indeed, since the 1990s, courts have played a role in requiring states\\nto update their digital record-keeping in response to litigation over constitutional\\ninadequacies in their foster care systems. See Modified Final Order at 64–73, LaShawn A. by\\nMoore v. Dixon, No. 1:89-cv-01754-TFH (D.D.C. Nov. 18, 1993) (requiring a “unitary\\ncomputerized information system that will record and report information sufficient to permit\\nDepartment social workers and administrators to achieve compliance with relevant\\n 15\\n\\n Case: 18-40057 Document: 00515024789 Page: 16 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\none of the states the plaintiffs named, a modernized digital records system has\\ncontributed significantly to the turnaround in that state’s child welfare\\nsystem. 5 The majority, in a complete about-face, vacates the integrated\\ncomputer system provisions. This without a change in law or fact since the\\nfiling of our opinion in Stukenberg I, and where the reexamination of these\\nprovisions is plainly beyond the crafted scope of our remand order.\\n Limited remands play a useful, but restricted, role. We grant a limited\\nremand where we task a district court to answer a discrete question necessary\\nfor resolution of an issue before us. We retain jurisdiction to enable a return\\nfor resolution of those issues yet pending before us. 6 That is not this case.\\nStukenberg I finally decided the issues before us on that appeal. It “remand[ed]\\nthe permanent injunction for modification consistent with th[e] opinion,”\\nproviding that “should either party seek appellate review following\\nmodification of the injunction by the district court, the appeal will be assigned\\nto this panel.” 7 There was no supplemental finding the district court needed to\\nmake or explanation to give for Stukenberg I to become final. If neither party\\nhad appealed, the implementation of Stukenberg I—the only issue before the\\n\\n\\n\\nprovisions of District of Columbia law and with all the provisions of this Order”); Consent\\nDecree at 109–12, Juan F. by Lynch v. O’Neill, No. 2:89 CV 859 (SRU) (D. Conn. Jan 7, 1991),\\nECF No. 90 (establishing a committee to develop a “single statewide networked computer\\nsystem” that would include case file information for each child).\\n 5 See Kim Coleman & Jim Coleman, Years of System-Wide Reform Results in Massive\\n\\nTurnaround for Tennessee’s Child Welfare System, HIGH GROUND NEWS (Aug. 9, 2017),\\navailable at http://www.highgroundnews.com/features/HistoricRulingDCS.aspx.\\n 6 See, e.g., United States v. Gomez, 905 F.3d 347, 354–56 (5th Cir. 2018) (granting a\\n\\nlimited remand for the district court to state whether it wished to modify its sentence given\\nSupreme Court authority it had not appeared to consider); Sultana Entm’t, L.L.C. v.\\nGutierrez, 740 F. App’x 81, 82 (5th Cir. 2018) (per curiam) (for the district court to explain its\\nbalancing of factors in dismissing a case for forum non conveniens); United States v. Cessa,\\n861 F.3d 121, 133 (5th Cir. 2017) (for the district court to make further findings on the\\nsuppression and materiality elements of a Brady claim); United States v. Rocha, 164 F. App’x\\n481, 481 (5th Cir. 2006) (per curiam) (for the district court to make findings regarding how\\nto classify a defendant’s offense of conviction for sentencing purposes).\\n 7 See Stukenberg I, 907 F.3d at 288.\\n\\n 16\\n\\n Case: 18-40057 Document: 00515024789 Page: 17 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\ndistrict court—would not have returned to this court. We did not intend to\\nretain jurisdiction over this case beyond the directive that any appeal promptly\\nlodged should be assigned to this panel.\\n The majority asserts that the mandate did not issue in Stukenberg\\nI, and it is free to treat the State’s arguments against the integrated computer\\nsystem provisions as a “quasi-motion for reconsideration.” Whatever that may\\nmean, even if the mandate did not issue—a matter of considerable\\nuncertainty—the State elected to put its substantial success in attacking the\\ndistrict court’s order in its pocket, not to be revisited. It filed no petition for\\nrehearing with this court and carefully insisted upon the narrow issues the\\nremand order put before the district court. We have a settled process for\\nreconsideration of panel decisions before the mandate issues in the form of a\\npetition for panel rehearing. That process requires a litigant to “state with\\nparticularity each point of law or fact that the petitioner believes the court has\\noverlooked or misapprehended.” 8 Concerns about timeliness aside, 9 the State\\ndoes not argue that Stukenberg I “overlooked” or “misapprehended” a point of\\nfact or law concerning the integrated computer system provisions. Nor can it.\\nThe State’s initial argument against those provisions in Stukenberg I was only\\na brief statement that the provisions were among several injunctive provisions\\nunsupported by expert testimony and an even more conclusory statement that\\nthe plaintiffs have no constitutional right to an integrated computer system. It\\nis telling that the majority makes no effort to justify its decision to reconsider\\nbeyond concluding that “after careful review,” it is convinced the relevant\\n\\n\\n\\n 8 FED. R. APP. PROC. 40(a)(2); see Boeta v. Fed. Aviation Admin., 736 F. App’x 453, 457\\n(5th Cir. 2018) (per curiam) (explaining that the proper mechanism for challenging a remand\\ndirective is to petition for panel rehearing, not to appeal from an order on remand).\\n 9 See, e.g., Uranga v. Davis, 893 F.3d 282, 286 n.20 (5th Cir. 2018) (declining to\\n\\nconsider a claim in a habeas litigant’s opening brief because it was essentially an untimely\\nattempt to seek reconsideration of the ruling on his motion for a certificate of appealability).\\n 17\\n\\n Case: 18-40057 Document: 00515024789 Page: 18 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\nportion of Stukenberg I was “erroneous.” The majority abuses Stukenberg I’s\\nmistaken label of a “limited remand.”\\n\\n II.\\n The decision to vacate the integrated computer system provisions is\\nmisguided. Each element of the injunction must be viewed not in isolation but\\nas a part of a broad “remedy with interacting parts, which as a totality\\nredresses the constitutional wrong, itself not a single act but a collection of\\npractices that together inflict injuries on PMC children.” 10\\n The integrated computer system provisions originate in the district\\ncourt’s years of study of DFPS, aided by the Special Masters. In its December\\n2015 liability opinion, the district court attributed PMC children’s epidemic of\\nphysical and sexual abuse to, among other factors, DFPS’s organizational and\\nadministrative chaos. 11 The court found the agency’s records “incredibly\\ndisorganized,” 12 retained in numerous uncoordinated digital databases, as well\\nas in paper files located with children’s residences, placement agencies,\\ncaseworker offices, and medical service providers. Records addressing abuse\\nand neglect investigations are maintained separately from case files, in a\\ndatabase to which caseworkers do not always have access. 13 The court found\\nthat DFPS’s “outdated” digital system “impede[s] caseworkers’ ability to\\nreview important electronic case file information” because it is “not in sync\\nwith current versions of forms that are used [by caseworkers]”—the\\ninconsistencies “force[] arbitrary workarounds and repetitive entry of data.” 14\\n\\n\\n\\n\\n 10 Stukenberg I, 907 F.3d at 302 (Higginbotham, J., concurring in part and dissenting\\nin part).\\n 11 M.D. v. Abbott, 152 F. Supp. 3d 684, 780 (S.D. Tex. 2015).\\n 12 Id. at 781.\\n 13 Id.\\n 14 Id. (internal quotation marks omitted).\\n\\n 18\\n\\n Case: 18-40057 Document: 00515024789 Page: 19 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\n The district court’s December 2015 liability opinion observed that\\nDFPS’s record keeping leaves caseworkers ignorant of children’s status, with\\nharmful results for the children. “[C]aseworkers continuously fail to maintain\\ncomplete, timely, and accurate documentation,” 15 generating “opportunities for\\nimportant safety-related tasks to fall through the cracks, especially when cases\\nare transferred between workers.” 16 Caseworkers—children’s “lifeline [and]\\nconnection to everything” 17—spend nearly three quarters of their time in\\nadministrative work, and only the remainder working with families and\\nchildren. 18 Even where a caseworker has time to care for a child, the\\ninaccessibility of information limits the help a caseworker can provide, for\\nexample, where records leave caseworkers unaware that a child is a survivor\\nof sexual abuse. The situation of the plaintiff S.A., whose story opened my\\nopinion in Stukenberg I, is illustrative. It presents a narrative the district court\\nfound representative of the ongoing failures in DFPS’s care for 12,000 PMC\\nchildren, an exercise we found to be the product of more than a decade of\\ndeliberate indifference—a denial of fundamental constitutionally secured\\nrights. As related before, within four months of entering Texas’s foster care\\nsystem, S.A. made her first sexual abuse outcry. 19 In response, the State\\nrequested an investigation by her private placement agency. But following the\\ninvestigation, the private placement agency retained the report and no copy\\nwas deposited in DFPS’s casefile. 20 As a result “no subsequent caseworker\\nwould have this information,” 21 meaning that S.A.’s caseworkers made\\n\\n\\n\\n\\n 15 Id.\\n 16 Id. (internal quotation marks omitted).\\n 17 Id. at 776 (internal quotation marks omitted).\\n 18 Id. at 780.\\n 19 Id. at 731.\\n 20 Id. at 732.\\n 21 Id.\\n\\n 19\\n\\n Case: 18-40057 Document: 00515024789 Page: 20 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\ndecisions regarding her housing, medical care, education, and general physical\\nwell-being while potentially uninformed of the life-changing trauma she\\nexperienced under DFPS care. It was in this context that the opinion concluded\\nthat “DFPS[’s] paperwork and electronic filing system . . . must become more\\nefficient [and each] child should have a readily accessible and organized case\\nfile, comprised of all records pertaining to that child.” 22\\n Pursuant to the district court’s liability opinion, the court-appointed\\nSpecial Masters Kevin Ryan and Francis McGovern studied DFPS record-\\nkeeping practices. In July 2016, the Special Masters reported DFPS’s\\nrepresentations that the agency’s modernization of its IMPACT system was\\nclose to unifying PMC children’s records, and that the agency was requesting\\nappropriations to complete this work. While the Special Masters recognized\\nthis modernization effort may not completely address the district court’s\\nconcerns regarding record-keeping, they were “encouraged that the State . . .\\n[wa]s on the right path here.” DFPS indicated that it was on track to report\\nthe establishment of a centralized system by the Fall of 2016.\\n That hope was dashed, and in November 2016 the Special Masters\\nsubmitted recommendations to the district court, including that\\n DFPS submit a plan with specific timeframes,\\n subject to Court approval, to ensure that DFPS staff\\n and contractors working with PMC children have\\n access to all the case information they need to serve\\n children in one centralized place. . . . The DFPS plan\\n should ensure that DFPS caseworkers and supervisors\\n serving PMC children, as well as CASA staff and\\n volunteers . . . have access to an integrated, current,\\n complete, and accurate case record for PMC children\\n on their caseloads . . .\\n\\n\\n\\n\\n 22 Id. at 825.\\n 20\\n\\n Case: 18-40057 Document: 00515024789 Page: 21 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\n In response, the State objected to every one of the Special Masters’\\nrecommendations, including the integrated computer system provisions,\\narguing they were “not . . . tailored to remediate a constitutional violation\\nbecause there is no reliable evidence that DFPS’s existing systems for\\nmaintaining and accessing PMC children’s case records pose a substantial,\\nclass-wide risk of depriving PMC children of personal security and reasonably\\nsafe living conditions and no reliable evidence shows that adopting the Special\\nMasters’ recommendation will eliminate that purported constitutional harm.”\\nThe State further “object[ed] because of the logistical challenges of\\nimplementing the full recommendation,” stating:\\n It is not practical or fair to require third parties\\n such as [child placing agencies], who operate much\\n smaller businesses without the same level of IT\\n capabilities, to completely change their software to\\n match that of DFPS. DFPS depends on the highest\\n level quality [child placing agencies] and does not wish\\n to impose unnecessary disincentives on these often\\n small, faith-based, and/or non-profit organizations.\\n The State also objected on the grounds that the comingling of records\\nmight compromise confidentiality and run afoul of, for example, federal laws\\nprotecting substance-abuse treatment records.\\n Responding to this new impasse, in January 2017, the district court\\nentered an interim order addressing the Special Masters’ recommendations\\nand the State’s objections, determining that “[f]urther studies and\\nconsultations between the Special Masters, the Court, and the State are\\nnecessary before a final order can be entered.” Relevant here, the district court\\nordered the Special Masters “to work with DFPS to create and submit to the\\nCourt a plan for a comprehensive central databank for PMC children” and to\\n“report the progress of the central databank creation to the Court within three\\nmonths from the date of this Order.”\\n\\n 21\\n\\n Case: 18-40057 Document: 00515024789 Page: 22 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\n In March 2017, following a status conference at which the parties and\\nSpecial Master discussed the “availability of records regarding medical, dental,\\nmental health, and educational issues,” DFPS agreed “to provide complete\\nresponses to the Special Masters from its IT Department concerning the\\nmodernization of the IMPACT system, including but not limited to the capacity\\nto include all the children’s records in one system.” In the following months the\\nSpecial Masters’ team corresponded and met with DFPS staff to discuss record\\nkeeping and to test the existing systems by examining a random sample of\\nPMC children’s records. Through these tests, the Special Masters found that\\nhealth data and casefile records “did not align nearly half the time.” DFPS’s\\nhealthcare vendor, Superior Healthcare, maintained children’s health records\\nin a database “not compatible with, or linked to” the DFPS’s casefile system.\\nNeither DFPS nor its vendor’s systems were capable of uploading and storing\\ndocuments such as birth certificates medical, dental, and psychological\\nevaluations. Instead, paper files were supposedly retained in the child’s\\nplacement, private placement agencies, the caseworker’s office, schools, or\\nmedical providers’ places of business. But when the Special Masters visited a\\nrandom sample of Foster Group Homes, they found that for many children\\nrecords that should have been maintained on site were not available for\\ninspection.\\n The Special Masters presented findings and proposed solutions in a\\nDecember 2017 final report to the court. This report corroborates the district\\ncourt’s observations:\\n DFPS maintains PMC children’s records among\\n numerous electronic and paper files, stored in\\n different locations and maintained by distinct\\n custodians. As the Court determined, the trial record,\\n including exhibits, revealed evidence of children’s\\n records missing information, containing incomplete\\n information and reflecting information that was\\n 22\\n\\n Case: 18-40057 Document: 00515024789 Page: 23 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\n inconsistent with information in other files. The\\n Special Masters’ examination of these case records\\n among the trial exhibits, and other children’s records\\n as described below, confirmed that PMC children’s\\n records are currently stored in different locations with\\n different custodians.\\n Based upon their examination, the Special Masters proposed that\\n“[w]ithin four months of the Court’s Final Order, DFPS . . . submit to the Court\\na plan for an integrated computer system” including complete medical, dental,\\neducational, placement, court, mental-health and casefile records,\\ndocumentation of visits with service providers, with test results, treatment\\nplans, “and any other information necessary for the safety of the children.”\\nThey recommended that the system be in place within a year of the district\\ncourt’s final order.\\n Objecting to the Special Master’s latest proposal, the State argued to the\\ndistrict court that “there is no reliable evidence that DFPS’s existing systems\\nfor maintaining and accessing PMC children’s case records pose a substantial,\\nclass-wide risk of depriving PMC children of personal security and reasonably\\nsafe living conditions.” Judge Jack disagreed. Quoting directly from her 2015\\nliability opinion, describing the Special Masters’ findings, and drawing upon\\nexamples of several named plaintiffs, she overruled the objection:\\n Due to DFPS’s burdensome administrative\\n demands, such as filling out paperwork, [] caseworkers\\n are only able to spend 26% of their time with children.\\n . . . In its December 2015 Order, the Court noted it took\\n eleven uninterrupted workweeks to read the twenty\\n foster children’s case files that were in evidence[,] in\\n excess of 350,000 pages. Considering the dangerously\\n high turnover rate, this task must be duplicated\\n numerous times for each child, making it impossible\\n for caseworkers to have enough time to focus on the\\n children.\\n\\n\\n\\n 23\\n\\n Case: 18-40057 Document: 00515024789 Page: 24 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\n The district court’s January 2018 Final Order adopts the Special\\nMasters’ proposed integrated computer system provisions, demanding a plan\\nfrom the State within four months, to be realized within one year.\\n Today, the majority vacates these provisions, stating only that there is\\nno constitutional right to an integrated computer system—of course, just as\\nthere is no freestanding constitutionally secured right to be bused to school.\\nThe question is not whether the Constitution guarantees a freestanding right\\nto an integrated computer system. Rather, it is whether the integrated\\ncomputer system provision is a necessary part of a remedy “narrowly tailor[ed]\\n. . . to remedy the specific action which gives rise to the order,” 23 here, Texas’s\\nconstitutional wrongs. As with all exercises of equitable power, “the nature of\\nthe violation determines the scope of the remedy.” 24 For compliance with the\\ncommand that an injunction be narrowly tailored, we look to the fit of ends and\\nmeans and to the factual matrix tying those ends and means. This matrix of\\nfact is before us, unchallenged, and in Stukenberg I we upheld the district\\ncourt’s integrated computer provisions as a remedial response to the found\\nconstitutional wrongs.\\n The district court did not abuse its discretion by insisting that the\\nintegrated computer system provisions directly address a cardinal element of\\nthe constitutional wrong. 25 As we found in Stukenberg I, DFPS’s “records and\\ncase files are outdated and woefully incomplete” 26 with information in such an\\n\\n\\n\\n\\n 23 Daniels Health Scis., L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d 579, 586 (5th\\nCir. 2013).\\n 24 Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 16 (1971).\\n 25 ODonnell v. Harris Cty., 892 F.3d 147, 155 (5th Cir. 2018) (“This court reviews a\\n\\ndistrict court’s grant of a preliminary injunction . . . for abuse of discretion. Findings of fact\\nare reviewed only for clear error; legal conclusions are subject to de novo review.” (internal\\ncitations and quotation marks omitted)).\\n 26 Stukenberg I, 907 F.3d at 260.\\n\\n 24\\n\\n Case: 18-40057 Document: 00515024789 Page: 25 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\n“abysmal state” 27 that to find a record requires a “needle-in-a-haystack\\nsearch.” 28 To address this problem—and its role in DFPS’s constitutional\\nviolations—“[a]n improved record-keeping practice w[ould] reduce\\ncaseworkers’ overall workloads. It would also centralize and make accessible\\ndata critical to making safe placement decisions. . . . [A]ccess to comprehensive\\nmedical information, mental health records, and placement history for\\nindividual children would assist [the agency] in making an informed\\nassessment about abuse allegations.” 29 We upheld provisions that will require\\nDFPS to identify child-on-child sexual abuse and to record confirmed\\nallegations of abuse and sexual aggression in a child’s casefile. 30 An integrated\\ndigitized record system, together with these abuse-recording requirements,\\nwould serve to ensure that information critical to each PMC child’s welfare is\\navailable and accessible to that child’s caseworker, a precondition to the child’s\\nsafety and care.\\n Caseworker access to a PMC child’s comprehensive record was made all\\nthe more important by the majority’s vacatur of the caseload cap provisions.\\nThe district court had originally included the integrated computer provisions\\nin a final order that also required that a PMC child’s caseworker handle no\\nmore than 14 to 17 children’s cases at a time. The district court determined\\nthis range was necessary based on the Child Welfare League of America’s\\nstandard for minimum acceptable care, 31 as well as DFPS’s own Work\\nMeasurement Study. 32 The majority vacated the caseload cap—a key element\\n\\n\\n\\n 27 Id. at 255 n.24.\\n 28 Id.\\n 29 Id. at 282.\\n 30 See, e.g., id. at 278 (upholding provisions requiring DFPS to create a record of\\n\\nconfirmed allegations of sexual abuse involving a child as victim or aggressor).\\n 31 See id. at 300 (Higginbotham, J., concurring in part and dissenting in part)\\n\\n(discussing the district court’s reliance on CWLA standards).\\n 32 See id. at 300–01.\\n\\n 25\\n\\n Case: 18-40057 Document: 00515024789 Page: 26 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\nof the injunction—leaving DFPS instead to develop “internal standards” to\\nguide caseload distribution. The allowance was made in a situation in which\\ncaseworkers are sometimes assigned 40 to 60 cases at a time, 33 and caseworker\\npositions turn over at 25 percent during the first year and 43 percent by the\\nend of the second. 34 Given how stretched caseworkers are in the absence of\\ncaseload caps, and the centrality of their attention and care in a child’s care,\\nthe district court’s insistence on integrated digital records was even more\\nimportant. Integrated digitized records would enable caseworkers to\\nconcentrate on casework, that is, on children, as opposed to the administrative\\ntasks currently occupying nearly three quarters of their time.\\n Informational deficiencies play a large role in DFPS’s inability to protect\\nPMC children from abuse and neglect. The district court has so found on a full\\nrecord. It follows that an integrated computer system is no mere “best\\npractice.” It is an appropriate and necessary part of an injunction narrowly\\ntailored to address caseworker workloads and deficient monitoring. The\\ndistrict court committed no abuse of discretion in adopting these provisions.\\nThe majority only announces that it finds the order not narrowly tailored. It\\nrefers to no less burdensome alternative—the State presented none. Against\\nthe facts upon which we sustained a holding of deliberate indifference, that\\nconclusion is deeply flawed.\\n\\n III.\\n The State’s principal objections are not to the provisions’ remedial role\\nbut to claimed costs, for which it offers no evidence. It asserts that an\\nintegrated computer system would entail a “Major Information Resource\\nProject,” requiring legislative approval before the commitment of appropriated\\n\\n\\n\\n 33 Id. at 257 (majority opinion).\\n 34 Id.\\n 26\\n\\n Case: 18-40057 Document: 00515024789 Page: 27 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\nfunds. Additionally, the State tells us, a new system would create a “logistical\\nnightmare,” requiring the burdens of “vendor solicitation, contract drafting,\\nand contract approval,” followed by design and software development, “data\\nmigration and testing . . . to ensure functionality.” The State’s assertions of\\ninfeasibility run against the implicit judgment of Special Master Kevin Ryan—\\nnot only the former commissioner of New Jersey’s child welfare agency, but\\nalso a monitor in the state of Michigan’s reform of its foster-care system and\\nadvisor to Oklahoma and Mississippi on reforms of their foster-care systems.\\nThe State’s pronouncements that DFPS’s informational shortcomings are\\n“inevitable” in “any state foster care system,” and that no other state has such\\na system—are unsupported by the record. Plaintiffs point out that “at least\\nWashington, D.C., Tennessee, and New Jersey already use such integrated\\ndigital record-keeping systems,” and have done so for years. The reality is that\\nthe burdens the State puts forward are no more than part and parcel of its\\nneglect—of its deliberate indifference to the children in its charge; indifference\\nthat created a nightmare for essential governance of its foster-care system. Its\\nengagement with the unchallenged reality is to challenge the district court’s\\nremedy as requiring “best practices.” These denials of constitutional right come\\nwith their own answers. Best practices are not the handmaiden of deliberate\\nindifference.\\n There is no support for the majority’s position that an integrated\\ndigitized records system would be prohibitively expensive. All we have to rely\\nupon are the conclusory statements of counsel. Counsel told the district court\\nthat costs of the reform could approach $10 million, a figure that has increased\\nover tenfold on appeal to “hundreds of millions of dollars” in counsel’s Reply\\nBrief to this court. There is no record basis for any of these figures. These\\nprotestations also omit important context, for example, that the agency\\noperates with over twelve thousand employees and a combined budget of $3.1\\n 27\\n\\n Case: 18-40057 Document: 00515024789 Page: 28 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\nbillion over two years, 35 with roughly half of the State’s child-welfare agency\\nspending covered by federal funds, over $730 million in fiscal year 2016. 36 That\\nis, extending such figures over the past decade, a period during which the State\\nwas deliberately indifferent to the rights of PMC children, its child-welfare\\nagency has spent billions of dollars from the federal treasury. The appropriate\\ntime to raise bona fide concerns about cost would have been during the Special\\nMasters’ year of analysis and consultation for a record-keeping reform plan.\\nBut the State did not detail costs then. Rather, it was reluctant to cooperate\\nfurther. As the district court stated in its Final Order,\\n Defendants have known about the Court’s\\n concerns with the IMPACT system since the Court\\n identified them over two years ago in its December\\n 2015 Order. Despite this, Defendants have apparently\\n done little to prepare for eventual reforms. The Special\\n Master asked Defendants to assess and report the\\n time needed to improve IMPACT so that it could store\\n all of a child’s medical, dental, mental health,\\n educational, and court records. Defendants’ response\\n to each of these inquiries was “[n]ot applicable[.] DFPS\\n is not making such changes to the IMPACT system.”\\n Similarly, Defendants responded to the Special\\n Master’s request for a draft plan to achieve the Court’s\\n recordkeeping goals by stating “[n]ot applicable. Texas\\n is not developing such a plan.” Defendants now object,\\n fifteen days after the Plan was filed, that the Plan’s\\n timelines for these goals are “impossible.” Defendants\\n offer no explanation for why they were unable to\\n present the Special Master with the estimate they now\\n present the Court in their Objections, that it could\\n take $10 million and several years to reform IMPACT.\\n\\n\\n 35 Edgar Walters, Pay Caseworkers and Fosters More, Chief Says, THE TEXAS TRIBUNE\\n(July 6, 2016).\\n 36 See, e.g., CHILD TRENDS, Child Welfare Agency Spending in Texas at 1 (2018)\\n\\navailable at https://www.childtrends.org/wp-content/uploads/2018/12/Texas_SFY2016-\\nCWFS_12.13.2018.pdf (reporting that 47 percent of child-welfare agency spending in Texas\\nis covered by federal funds).\\n 28\\n\\n Case: 18-40057 Document: 00515024789 Page: 29 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\n Even now, Defendants offer no evidence in support of\\n this estimate.\\n Under these provisions the State retained the initiative to propose a plan\\nto unify digital records, but wholly failed to do so.\\n The integrated computer system provisions have an appropriate and\\nobvious place in the district court’s injunction, narrowly tailored to remedy\\nDFPS’s workload and oversight violations. That reforms deferred for decades\\nhave become costly to undertake is not surprising. DFPS’s neglect and\\nindifference have allowed its problems to snowball. After years of litigation,\\nincluding a two-week bench trial and a year-long study by its appointed Special\\nMasters, the district court reached the judgment that DFPS requires\\nintegrated digitized records for PMC children in order to remedy its\\nconstitutional violations. The State’s unsupported assertions of\\nimpracticability do not establish an abuse of the district court’s discretion, nor\\ndoes its naked assertion that the provisions were not necessary to remedy the\\nwrong, here little more than a recast contention that there was no wrong—no\\nfailure of a constitutional dimension.\\n\\n IV.\\n In sum, the majority’s vacatur of the integrated computer system\\nprovisions strikes at the heart of a remedial order responding to the State’s\\ndeliberate indifference to the welfare of 12,000 PMC children and the breach\\nof its constitutional command to tend to their care. The State has offered no\\nnew circumstances or insights justifying a change in this court’s order—\\nnothing but a nigh casual, off-the-cuff statement by able counsel that such\\nsystems are expensive and not deployed by other states, hence an imposition\\nof “best practices.” The State’s assertion regarding use in other states was\\nimmediately contradicted at oral argument by opposing counsel, without\\nchallenge.\\n\\n 29\\n\\n Case: 18-40057 Document: 00515024789 Page: 30 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\n To counter the sting of deliberate indifference the State speaks of\\nhundreds of millions of dollars being turned towards the Texas foster care\\nsystem, yet its answer is only that a new system is too expensive, that with a\\nfew patches it can make do with the present system—a stunning assertion that\\nignores the obvious question: why then only now? We must keep ever in mind\\nthe long-reaching consequences of this dysfunctional system. In fiscal year\\n2017, six years after this suit was filed, 38 TMC and PMC children died in\\nDFPS custody; 554 children spent two or more consecutive nights in hotels or\\ngovernment office buildings; meanwhile, 352 caseworkers voluntarily ended\\ntheir employment with DFPS. Aside from the suffering of children within state\\ncustody, as I described in Stukenberg I, 1,300 to 1,400 PMC children age out of\\nDFPS care every year. 37 These aged-out children “lack independent living\\nskills” and are unprepared for adult life; according to a witness who runs a\\nnon-profit to help aged-out children, “[t]hey do not know how to answer a\\nphone, take or leave a message, cook a meal for themselves, or load a\\ndishwasher. They do not know how to fill out a job application, let alone drive\\na car to get to work.” 38 Former foster youths suffer from post-traumatic stress\\ndisorder at nearly five times the rate of the general population and nearly twice\\nthe rate of United States combat veterans. 39 Around 27 percent of children\\naging out of care end up in the criminal-justice system, and a third become\\nhomeless. 40 Once homeless, one out of three will become involved in\\nprostitution; according to one amicus, “the Texas child welfare system is\\neffectively supplying the sex-trafficking industry with current and former\\n\\n\\n\\n 37 Stukenberg I, 907 F.3d at 292 (Higginbotham, J., concurring in part and dissenting\\nin part).\\n 38 M.D., 152 F. Supp. 3d at 790.\\n 39 Id.\\n 40 Stukenberg I, 907 F.3d at 292 (Higginbotham, J., concurring in part and dissenting\\n\\nin part).\\n 30\\n\\n Case: 18-40057 Document: 00515024789 Page: 31 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\nfoster youth.” 41 Among female former-PMC children, 49 percent become\\npregnant within a year of aging out; 70 percent of their children then enter the\\nsame foster-care system. 42 The social cost of this unreformed system is\\nenormous. Looking past the loss of the forces of basic morality and fairness,\\nthe dollar cost to the State entailed by this feedback into government custody\\nby its released charges must far exceed the cost of a sound system.\\n\\n V.\\n The State’s view of narrow tailoring is transparent. Implicit in a failure\\nto narrowly tailor a remedy is an effective alternative. The facts in the record\\nand the State’s conduct before the district court make plain that its alternative\\nis to leave DFPS’s flawed record-keeping system in place. My colleagues\\nmistakenly only reward the State’s resistance to the orders of the United\\nStates District Court.\\n Finally, the State’s approach to these efforts to protect the constitutional\\nrights of our children is now shot through with two rending realities. First, the\\nmajority’s talismanic use of “best practices” betrays an anemic view of the\\nState’s constitutional duty to care for the children it takes into its charge. This\\nlimpid cast places that duty nigh on a plane of state-owed duties to its convicts,\\nand is in sharp tension with our finding of deliberate indifference. 43 Indeed,\\nthe majority has excised detailed remedial provisions addressing DFPS’s abject\\nfailure to prepare children aging out of PMC custody for safe and productive\\nadult life, a denial of programs the likes of which are routinely afforded to\\nconvicts before their reentrance to society. Again, the State’s obligation runs\\n\\n\\n 41 Id. (quoting Brief of Disability Rights Texas as Amicus Curiae at 8).\\n 42 Id.\\n 43 See Farmer v. Brennan, 511 U.S. 825, 833 (1994) (“[P]rison officials have a duty . . .\\n\\nto protect prisoners from violence at the hands of other prisoners. . . . [H]aving stripped them\\nof virtually every means of self-protection and foreclosed their access to outside aid, the\\ngovernment and its officials are not free to let the state of nature take its course.”).\\n 31\\n\\n Case: 18-40057 Document: 00515024789 Page: 32 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\nnot to some abstract universe of “foster-care children,” rather it runs to each of\\nthese children as an individual. 44 At its core, this obligation must be larger\\nthan food, shelter, and sojourns through a succession of public schools. When\\nthe State deploys persons termed “I See You” workers to locate its charges it\\nexposes its failure to abide its constitutionally imposed duty. Second, that the\\nState’s fervor for potential life subsides when that potential is realized brings\\npuzzlement that would defy the genius of Fyodor Dostoevsky’s dissection of the\\nhuman psyche—in simultaneous pursuit of ends in conflict, each with the\\nother.\\n To these eyes, the State repairs to an unrecognizable view of our\\nfederalism—one that elides its core. Federal law is also the State’s law, and\\nthe federal court here arrives because the State has refused to fulfill its\\nconstitutional duty, one owed to the 12,000 PMC children in its charge. Its\\nreflexive resistance to the federal district court’s remedial orders—both direct\\nconfrontation and a refusal to cooperate or otherwise participate in the crafting\\nof a response—bespeaks a view of our federalism inverted to look past the\\nunchallenged finding of this court of the State’s deliberate indifference to the\\nconstitutional rights of PMC children, in part a call to account given that half\\nits monies come from the federal treasury. One would think that the\\npresentation ought to be one of cooperative federalism. The State’s noble\\nenterprise to take custody of these children is being hollowed by bureaucratic\\nwrangling and ineptitude, a threatened stain on Texas—and a retreat by this\\n\\n\\n\\n\\n Stukenberg I, 907 F.3d at 302 (Higginbotham, J., concurring in part and dissenting\\n 44\\n\\nin part) (“Treating a child as an individual—protecting his or her identity as an individual—\\nhas long been the concern of human rights conventions, a concern that also lies at the core of\\nthe liberty guaranteed in the Fourteenth Amendment.”). This international concern is\\ncaptured in the poignant words “[t]he child . . . shall have the right from birth to a name.”\\nUnited Nations Convention on the Rights of the Child, arts. 7–8, 19, Nov. 20, 1989, 28 I.L.M.\\n1448.\\n 32\\n\\n Case: 18-40057 Document: 00515024789 Page: 33 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\ncourt, once a refuge for such innocents, ready to enforce federal law when a\\nstate fails its obligation to do so, as it must.\\n Five years after the filing of this lawsuit, but soon after the district\\ncourt’s finding of deliberate indifference, the Governor appointed a new DFPS\\ncommissioner to “overhaul[] a broken system” and address a “status quo” that\\nwas “unacceptable.” 45 A commendable effort, but it now comes alone onto a\\nstage with lights dimmed by this court’s retreat, leaving as a lonely heuristic\\nthis court’s finding that for more than a decade the State has been deliberately\\nindifferent to the rights of children in its custody. If the judiciary upholds this\\nwalk away, the audience of the people remains—which for the sake of the\\nchildren hopefully will be a sufficient incentive to sustain and expand the late\\narriving effort to more fully discharge the State’s duty, in this real world a hope\\nunlikely to be realized, as pointed out in my earlier dissent:\\n At least as early as 1996, DFPS was unmoved by\\n the first of the “twenty years of studies conducted or\\n commissioned by the State.” The administration of\\n Governor Perry returned to DFPS’s problems in 2010,\\n pointing out that the agency had still not fixed the\\n problems identified almost fifteen years earlier. Most\\n recently, the district court noticed the current\\n commissioner’s exhortations to reform at DFPS, and\\n his acknowledgments that, as yet, the agency was\\n overwhelmed: “our workers are outnumbered by the\\n opponent—child abuse and neglect.” In its Liability\\n Order, the district court observed that the State had\\n appointed its “seventh commissioner since 2004, each\\n of whom was surely ushered in with promises that this\\n time it will be different.” More than “[t]wo years and\\n\\n\\n 45Edgar Walters, Abbott Names New Leaders at Embattled Child Welfare Agency, THE\\nTEXAS TRIBUNE (April 11, 2016). This Commissioner recently announced his resignation of\\nthe post after three years heading DFPS. Edgar Walters, Texas Child Welfare Chief Hank\\nWhitman Announces Retirement, THE TEXAS TRIBUNE (May 28, 2019). Governor Abbott was\\nelected in 2014, three years after this suit was filed, following service as Texas’s attorney\\ngeneral and as a Justice of the Supreme Court of Texas.\\n 33\\n\\n Case: 18-40057 Document: 00515024789 Page: 34 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\n one legislative session” after the liability\\n determination, the constitutional deprivations\\n remained unaddressed. The “foster care system of\\n Texas [was still] broken[.]” 46\\n\\n It is to this history that my colleagues defer—in the name of federalism.\\n\\n\\n\\n\\n 46 Stukenberg I, 907 F.3d at 298 (Higginbotham, J., concurring in part and dissenting\\nin part).\\n 34\\n\\n Case: 18-40057 Document: 00515024789 Page: 35 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\n APPENDIX:\\n\\nExcised Injunctive Provision Majority’s Rationale\\n\\nCaseload-Specific Provisions\\n\\nCaseload-cap mandating a range of 14–17 The measure would exacerbate DFPS’s staffing\\nchildren per caseworker. Stukenberg I, 907 F.3d crisis in the short term, and, more broadly, is\\nat 273–74. “too blunt a remedy . . . beyond what [is]\\n minimally required” to remedy the\\n constitutional violation.” Id. at 274. Instead,\\n “DFPS absolutely should determine how many\\n cases, on average, caseworkers are able to\\n safely carry. Based on its determination, DFPS\\n should establish generally applicable, internal\\n caseload standards. . . . as a rough guide for\\n supervisors who are handling caseload\\n distribution, and they should inform DFPS’s\\n hiring goals.” Id. at 274.\\n\\nRecruitment of new caseworkers. Id. The measure is “improper . . . either exceed[ing]\\n what is required to achieve constitutional\\n compliance or . . . not directly address[ing] the\\n problems giving rise to the caseload\\n management violation.” Id. Also, it potentially\\n “would unnecessarily add to the volume of work\\n for which caseworkers are responsible, and\\n would increase the time spent managing\\n paperwork and compliance and administrative\\n burdens.” Id.\\n\\nComprehensive training and competency Same as previous. Id. at 274.\\nexaminations for new caseworkers. Id. at 275.\\n Same as previous. Id. at 274.\\nMonthly face-to-face meetings between\\ncaseworkers and each child under their care. Id.\\nat 275.\\n Same as previous. Id. at 274.\\nCaseworker training on visitation policies. Id. at\\n275.\\n Same as previous. Id. at 274.\\nQuarterly reports on caseworker–child visits. Id.\\nat 275.\\n Same as previous. Id. at 274.\\nAdherence to agency contact guidelines,\\nincluding caseworker assessments of each child’s\\nsafety and medical, mental-health, and\\neducational needs. Id. at 275.\\n Same as previous. Id. at 274.\\nRequirement that supervisors carry no caseload\\nof their own and oversee no more than seven\\ncaseworkers. Id. at 275.\\n\\n\\n 35\\n\\n Case: 18-40057 Document: 00515024789 Page: 36 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\n Same as previous. Id. at 274.\\nElimination of the use of “I See You” workers. Id.\\nat 275.\\n\\nMonitoring and Oversight Provisions\\n\\nEstablishment of a statewide 24-hour hotline The measure “do[es] not address the discrete\\naccessible to PMC children to report and record issues underlying the violation: the manner in\\ncalls concerning abuse and neglect. Id. at 279. which RCCL documents and investigates\\n allegations of abuse. To the extent that the court\\n is worried about underreporting, this can be\\n remedied by mandating that caseworkers\\n provide children with the appropriate point of\\n contact for reporting issues. The problem with\\n RCCL follow-up is sufficiently addressed by\\n other valid provisions.” Id.\\n\\nRequirement that all foster homes maintain a Same as previous. Id.\\nlandline phone accessible to children. Id.\\n\\nRequirement that DFPS ensure PMC children The measure would “unnecessarily increase the\\nare able to access and use the 24-hour hotline. time spent managing administrative burdens.”\\nId. at 280 Id. at 279.\\n\\nRequirement that DFPS record all calls to the Same as previous. Id. at 279.\\n24-hour abuse and neglect hotline, and store the\\nrecordings for two years. Id. at 280.\\n\\nRequirement that foster caregivers report all Same as previous. Id. at 279.\\nallegations of child on child sexual abuse via the\\n24-hour hotline. Id. at 280.\\n\\nRequirement that DFPS track referrals of child- Same as previous. Id. at 279.\\non-child sexual abuse. Id. at 280.\\n\\nQuarterly reports on all child-on-child abuse Same as previous. Id. at 279.\\nreferrals made to the hotline that have been\\nassigned for investigation. Id. at 280.\\n\\nRequirement that investigations of abuse and Same as previous. Id. at 279.\\nneglect in licensed placements are conducted by\\nstaff with caseloads exclusively focused on\\nmaltreatment investigations. Id. at 280.\\n The measure is “misguided for substantially the\\nCaseload cap of 14 cases for RCCL workers\\n same reasons that caseload caps are ill-advised\\ninvestigating abuse and placement licensing\\n in the primary caseworker context. Again,\\nrequirements. Id. at 280–81.\\n however, it would be reasonable for the court to\\n require a comprehensive workload study and\\n the establishment of internal guidelines for\\n caseload ranges based on what DFPS\\n determines RCCL investigators can safely\\n manage.” Id. at 279.\\n\\n\\n 36\\n\\n Case: 18-40057 Document: 00515024789 Page: 37 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\n The measure is “not only unnecessary, but . . .\\nDisclosure of redacted licensing inspection\\n also implicates confidentiality concerns.” Id. at\\nreports, including the outcome of the inspection,\\n 279.\\nviolations, and the agency’s corrective actions\\naddressing the violations. Id. at 281.\\n\\n“Crossover” Provisions\\n The measure is “improper” because it is\\nRequirement that each PMC child’s case file\\n “designed to remedy what the district court\\ninclude a current photograph of the child. Id. at\\n believed to be additional, related problems with\\n283.\\n the foster care system” and is “not calculated to\\n remedy an identified constitutional violation.”\\n Id. Additionally, it potentially would “only\\n increase caseworkers’ administrative burdens.”\\n Id.\\n\\n\\nRequirement that DFPS obtain a photo of each Same as previous. Id.\\nchild within 48 hours of their entering PMC\\ncustody. Id.\\n Same as previous. Id.\\nRequirement that DFPS ensure children under\\nthree have photos updated at least semi-\\nannually. Id.\\n Same as previous. Id.\\nRequirement that DFPS ensure caseworkers\\nhave proper training in photographing and\\nuploading pictures of children in their care to the\\ncasefile system. Id.\\n Same as previous. Id.\\nProvision of a birth certificate and social security\\ncard to each PMC child at the age of sixteen. Id.\\n Same as previous. Id. at 283.\\nProvision of educational and medical records to\\neach PMC child prior to their aging out of care.\\nId. at 283–84\\n Same as previous. Id. at 283.\\nIdentification by DFPS of PMC children aged 14\\nor older who have not received independent\\nliving preparation services. Id. at 284.\\n Same as previous. Id. at 283.\\nRequirement that 14- and 15-year-old PMC\\nchildren receive the agency’s Preparation for\\nAdult Living services and that 14-year-olds\\nreceive a life-skills assessment and transition\\nplanning services, with accommodations for\\ndisabled PMC children. Id. at 284.\\n Same as previous. Id. at 283.\\nDevelopment of a plan for expungement of each\\nchild’s eligible criminal or juvenile offense\\nrecords before the aging out of care. Id. at 284.\\n\\n\\n\\n\\n 37\\n\\n Case: 18-40057 Document: 00515024789 Page: 38 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\n Same as previous. Id. at 283.\\nDevelopment of a plan for each child to access\\nbenefits for which they are eligible upon aging\\nout. Id. at 285.\\n Same as previous. Id. at 283.\\nProvision of driver’s education to eligible PMC\\nchildren. Id. at 285.\\n Same as previous. Id. at 283.\\nCreation of email accounts for 14-year-old PMC\\nchildren for receipt of encrypted personal\\ndocuments and records. Id. at 285.\\n Same as previous. Id. at 283.\\nAppointment of an attorney ad litem for PMC\\nchildren unrepresented in pending cases. Id. at\\n285.\\n Same as previous. Id. at 283.\\nDevelopment of a plan for reimbursement of\\nPMC children’s attorneys ad litem in those\\ncourts that do not provide attorneys ad litem. Id.\\nat 285.\\n Same as previous. Id. at 283.\\nTraining for caseworkers on child health. Id. at\\n285.\\n Same as previous. Id. at 283.\\nRequirement that DFPS make every effort to\\nobtain a child’s medical records within 24 hours\\nof the child entering DFPS custody. Id. at 285.\\n Same as previous. Id. at 283.\\nProvision of a “medical home” to provide\\ncomprehensive and continuous medical care to\\neach PMC child. Id. at 285.\\n Same as previous. Id. at 283.\\nAnnual developmental screenings for each PMC\\nchild. Id. at 286.\\n Same as previous. Id. at 283.\\nCasefile system alerts notifying caseworkers of a\\nchild’s scheduled medical screenings,\\nimmunizations, and appointments. Id. at 286.\\n Same as previous. Id. at 283.\\nRegular caseworker verification of each child’s\\nhealth status. Id. at 286.\\n Same as previous. Id. at 283.\\nProhibitions on placing unrelated children more\\nthan three years apart in age or in different\\nservice levels in the same room. Id. at 286–87.\\n Same as previous. Id. at 283.\\nProhibition on housing children in DFPS offices.\\nId. at 287\\n Same as previous. Id. at 283.\\nPlacement of PMC children younger than two in\\nfamily-like settings within six months of the\\norder, children younger than six within 12\\n\\n\\n\\n 38\\n\\n Case: 18-40057 Document: 00515024789 Page: 39 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\nmonths, and children under thirteen within 24\\nmonths. Id. at 287.\\n\\n\\n\\n\\n 39\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4414640/\", \"author_raw\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"HIGGINBOTHAM"},"judge2":{"kind":"string","value":"SMITH"},"judge3":{"kind":"string","value":"CLEMENT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":1,"string":"1"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4637387/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: M. D., BY NEXT FRIEND Sarah R. STUKENBERG ; Z. H., by Next Friend Carla B. Morrison ; S. A., by Next Friend Javier Solis ; A. M., by Next Friend Jennifer Talley; J. S., by Next Friend Anna J. Ricker; H. v. by Next Friend Anna J. Ricker; L. H., by Next Friend Estela C. Vasquez; C. H., by Next Friend Estela C. Vasquez; A. R., by Next Friend Tom McKenzie, Individually and on Behalf of All Other Similarly Situated, Plaintiffs-Appellees v. Greg ABBOTT, in His Official Capacity as Governor of the State of Texas; Courtney Phillips, in Her Official Capacity as Executive Commissioner of the Health and Human Services Commission of Texas; Henry Whitman, Jr., in His Official Capacity as Commissioner of the Department of Family and Protective Services of the State of Texas, Defendants-Appellants\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-08\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-40057 Document: 00515024789 Page: 1 Date Filed: 07/08/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n July 8, 2019\n No. 18-40057\n Lyle W. Cayce\n Clerk\nM. D., by next friend Sarah R. Stukenberg; Z. H., by next friend Carla B.\nMorrison; S. A., by next friend Javier Solis; A. M., by next friend Jennifer\nTalley; J. S., by next friend Anna J. Ricker; H. V., by next friend Anna J.\nRicker; L. H., by next friend Estela C. Vasquez; C. H., by next friend Estela\nC. Vasquez; A. R., by next friend Tom McKenzie, individually and on behalf\nof all other similarly situated,\n\n Plaintiffs - Appellees\n\nv.\n\nGREG ABBOTT, in his official capacity as Governor of the State of Texas;\nCOURTNEY PHILLIPS, in her official capacity as Executive Commissioner\nof the Health and Human Services Commission of Texas; HENRY\nWHITMAN, JR., in his official capacity as Commissioner of the Department\nof Family and Protective Services of the State of Texas,\n\n Defendants - Appellants\n\n\n\n\n Appeals from the United States District Court\n for the Southern District of Texas\n\n\nBefore HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.\nEDITH BROWN CLEMENT, Circuit Judge:\n This case returns to us after a limited remand. After our opinion in M.D.\nby Stukenberg v. Abbott (Stukenberg I), 907 F.3d 237 (5th Cir. 2018), the\ndistrict court was tasked with modifying its injunction remedying certain\nconstitutional deficiencies in Texas’s foster-care system. The State now asks\n 35\n\n Case: 18-40057 Document: 00515024789 Page: 2 Date Filed: 07/08/2019\n\n\n\n No. 18-40057\nus to vacate many of the modified injunction’s provisions. For the following\nreasons, the modified injunction is affirmed in part, affirmed with modification\nin part, and vacated in part.\n I.\n This case’s underlying facts are thoroughly laid out in Stukenberg I, 907\nF.3d at 243–47. In short, this case is about the constitutionality of Texas’s\nfoster-care system. Plaintiffs are a certified class of minor children in the\npermanent management conservatorship (PMC) of the Department of Family\nProtective Services (DFPS). We previously found that DFPS’s policies violated\nPlaintiffs’ substantive-due-process rights in two ways: (1) by maintaining\noverburdened caseworkers who are responsible for the children in the PMC;\nand (2) by failing to adequately monitor and oversee the children in the\nlicensed foster care (LFC) subclass. Id. at 256–68. But we reversed the district\ncourt’s other two liability findings. Id. at 268–70. We did not believe that\nDFPS’s placement array or the foster group homes—in and of themselves—\ncreated a constitutionally cognizable harm to the children. Id.\n Based on these findings, we evaluated the district court’s extensive\ninjunction, which mandated dozens of specific remedial measures. Id. at 271–\n87. We noted that an injunction must be narrowly tailored to cure the specific\nconstitutional violations at issue and must not go beyond what is “minimally\nrequired” to bring the State into constitutional compliance. Id. at 272. With\nthis standard in mind, we validated and invalidated many of the injunction’s\nspecific provisions. Id. at 271–87. We concluded by remanding the case to\nmodify the permanent injunction “consistent with this opinion.” Id. at 288. The\nremand was a limited one. Id.\n After Stukenberg I issued, the district court promptly requested briefing\non how to comply with Stukenberg I. And in November 2018, the district court\n\n\n 2\n\n Case: 18-40057 Document: 00515024789 Page: 3 Date Filed: 07/08/2019\n\n\n\n No. 18-40057\nissued the modified injunction. The State now appeals, unhappy with the\ndistrict court’s revisions.\n II.\n Whether a modified injunction comports with a remand order is reviewed\nde novo. See Ball v. LeBlanc, 881 F.3d 346, 350–51 (5th Cir. 2018). The district\ncourt must “implement both the letter and the spirit of the appellate court’s\nmandate and . . . not disregard the explicit directives of that court.” United\nStates v. Lee, 358 F.3d 315, 321 (5th Cir. 2004). It cannot reopen issues\nexpressly or implicitly decided by the appellate court. Gene & Gene, LLC v.\nBioPay, LLC, 624 F.3d 698, 702 (5th Cir. 2010).\n At the same time, the grant of a permanent injunction is reviewed for an\nabuse of discretion. Stukenberg I, 907 F.3d at 248.\n III.\n The State argues that many of the modified injunction’s provisions are\nimproper, either because they are inconsistent with Stukenberg I, are outside\nthe scope of the limited remand, or are substantively problematic. The specific\nprovisions at issue are: (1) the 24-hour-supervision provisions; (2) the face-to-\nface-meeting provision; (3) the workload-study provisions; (4) the integrated-\ncomputer-system provisions; (5) the missing-medical-records provision; (6) the\nMonitor provisions; and (7) the termination provisions. We take them in that\norder.\n A.\n In its 2015 liability opinion, the district court prohibited the State from\nplacing children in “foster group homes that lack 24-hour awake-night\nsupervision.” We did not disturb that ruling in Stukenberg I. On remand, the\ndistrict court expanded the supervision requirement to apply to all PMC\nplacements housing more than six children. The State urges that this\nexpansion improperly exceeds the scope of the limited remand.\n 3\n\n Case: 18-40057 Document: 00515024789 Page: 4 Date Filed: 07/08/2019\n\n\n\n No. 18-40057\n In making this argument, the State misconstrues ODonnell v. Goodhart\n(ODonnell II), where this court considered whether a modified injunction\ndealing with Texas’s bail system complied with the mandate rule. 900 F.3d 220\n(5th Cir. 2018). In a previous case, we had vacated the original preliminary\ninjunction over the bail system and remanded so that the district court could\n“craft a revised injunction—one that is narrowly tailored to cure the\nconstitutional deficiencies the district court properly identified.” ODonnell v.\nHarris Cty. (ODonnell I), 892 F.3d 147, 166–67 (5th Cir. 2018). In ODonnell II,\nthis court found that a particular provision fell “outside the confines of [the]\nnarrow remand” because it addressed a problem not “originally identified” by\nthe district court. 900 F.3d at 225. This court continued: “Remand is not the\ntime to bring new issues that could have been raised initially.” Id.\n Such is not the case here. In Stukenberg I, we recognized that the 24-\nhour-supervision requirement had remedied the “most egregious” problem\nwith the foster group homes: a “lack of adequate supervision.” 907 F.3d 237,\n270. The district court’s original injunction addressed that violation, albeit in\nan overbroad manner. Indeed, we invalidated the original provision\nprohibiting “any family-like placement that houses more than six children”\nbecause we failed to see why—absent the supervision problems—the\nconditions in the foster group homes unconstitutionally amplified the risk of\nharm to the children. Id. at 270, 282. In contrast, rather than outright banning\nplacements housing more than six children, the modified injunction simply\nrequires 24-hour-supervision. In doing so, it hews more closely to the violation\nidentified in Stukenberg I: the lack of proper supervision. Thus, this case is\nunlike ODonnell II, as the district court has not attempted to rectify a newly\nidentified problem.\n In addition to its primary argument, the State also notes that the\nmodified injunction’s 24-hour-supervision requirement would apply not only to\n 4\n\n Case: 18-40057 Document: 00515024789 Page: 5 Date Filed: 07/08/2019\n\n\n\n No. 18-40057\nLFC placements but also to unlicensed placements, such as kinship placements\nin which a child is placed with a relative. This would be problematic. Plaintiffs\ndo not object to modifying the requirement to clarify that it applies only to LFC\nplacements. So we do exactly that. The 24-hour-supervision requirement is\naffirmed with the modification that it applies only to LFC placements, not\nunlicensed placements.\n B.\n In Stukenberg I, we invalidated many “caseload-specific injunction\nprovisions.” 907 F.3d at 274. We did so because they “exceed[ed] what [was]\nrequired to achieve constitutional compliance or [did] not directly address the\nproblems giving rise to the caseload management violation.” Id. Among the\nprovisions struck down for these reasons was one prohibiting DFPS from using\nI-See-You (ISY) workers. 1 Id.\n Despite our elimination of this provision, the district court reinserted a\nsimilar one in the modified injunction. The injunction now requires that all\nmonthly face-to-face meetings with the PMC children be conducted by primary\ncaseworkers, not ISY workers. The State argues that the new provision is a\nreincarnation of the invalidated one banning the use of ISY workers. While\nnominally allowing ISY workers to exist, the new face-to-face provision\neliminates their primary responsibility. Thus, the State argues that it is\ninconsistent with Stukenberg I.\n In response, Plaintiffs exclaim that the face-to-face provision is one of\nthe modified injunction’s most important. On their account, it “directly\naddresses the fundamental problems with the State’s existing practices with\nregard to secondary caseworkers.” They then spill much ink pointing out the\n\n\n 1 ISY workers are secondary caseworkers who help the primary caseworkers. 907 F.3d\nat 245. They do so mainly by conducting in-home visits and confirming that the child “is still\nthere.” Id.\n 5\n\n Case: 18-40057 Document: 00515024789 Page: 6 Date Filed: 07/08/2019\n\n\n\n No. 18-40057\ndeficiencies of ISY workers when it comes to conducting face-to-face visits with\nthe PMC children and the virtues of requiring primary caseworkers (who have\nmore training and experience) to conduct all face-to-face visits.\n While Plaintiffs are correct that the State’s use of ISY workers has many\nproblems, their argument fails to acknowledge that we did not find those\nproblems constitutionally suspect in Stukenberg I. We discussed the\ninsufficiency of ISY workers solely to show that DFPS’s use of them did not\nshow a reasonable effort to alleviate the substantial risks associated with\noverburdened primary caseworkers. 907 F.3d at 262–63. It was the crushing\nworkload on primary caseworkers—not ISY workers’ face-to-face visits—that\nwe held violated Plaintiffs’ substantive-due-process rights. Id. at 264–65. And\nit is in relation to that violation that the district court was supposed to revise\nthe injunction.\n With this violation in mind, the modified injunction’s face-to-face\nprovision cannot stand. Imposing on primary caseworkers the additional duty\nof conducting all face-to-face visits no more “directly address[es] the problems\ngiving rise to the caseload management violation” than does the invalidated\nprovision eliminating ISY workers. Id. at 274. In fact, it would likely increase\ntheir workload. It appears that this provision was the district court’s well-\nintentioned attempt to fix the problems with ISY workers’ face-to-face visits.\nBut eliminating those problems was not what the district court was charged\nwith doing on remand.\n The face-to-face provision is vacated as being inconsistent with\nStukenberg I.\n C.\n The first time around, we struck down the caseload caps on primary\ncaseworkers and the Residential Child Care Licensing (RCCL) investigators,\nbut we also made clear that DFPS should “determine how many cases, on\n 6\n\n Case: 18-40057 Document: 00515024789 Page: 7 Date Filed: 07/08/2019\n\n\n\n No. 18-40057\naverage, caseworkers” and RCCL investigators can safely manage and should\nthen establish internal guidelines for caseload ranges. Stukenberg I, 907 F.3d\nat 274, 279. On remand, the district court implemented this recommendation\nby ordering DFPS to conduct workload studies as to both types of workers. Yet\nit did not leave the studies’ planning and execution solely in the hands of\nDFPS. Instead, it stated that “DFPS, in consultation with and under\nsupervision of the Monitors, shall propose [workload studies]” at which point\nthe court would “convene a hearing to review the proposal[s].”\n The State contends that by requiring the workload studies to be done\nunder the Monitors’ and the court’s supervision, the district court deviated\nfrom Stukenberg I’s instructions. The Stukenberg I opinion makes clear, the\nState says, that DFPS should be able to determine—all on its own—how many\ncases, on average, caseworkers and RCCL investigators can safely carry.\n We reject the State’s argument. The district court undoubtedly has the\nequitable power to oversee compliance with its own injunction. The supervision\nrequirement over the workload studies simply makes explicit that implicit\npower. We do not read Stukenberg I as forbidding the court from exercising\ncontrol and supervision over the workload studies—especially when the State\nhas a history of conducting them inadequately. See 907 F.3d at 261. Moreover,\ndespite the supervision and input from the Monitors and the district court,\nDFPS will still be involved in designing and conducting the workload studies,\nand reaching conclusions from them. All this is to say, the district court’s\nsupervision requirement is faithful to the spirit of Stukenberg I and does not\ndo clear violence to its letter. 2 See Lee, 358 F.3d at 321 (noting that the district\n\n\n\n\n 2 The State also complains that it is impossible to design and conduct the studies\nwithin the 60-day timeframe the district court imposed. Should that be the case, the State\ncan always move for an extension, which the court should generously consider.\n 7\n\n Case: 18-40057 Document: 00515024789 Page: 8 Date Filed: 07/08/2019\n\n\n\n No. 18-40057\ncourt must “implement both the letter and the spirit of the appellate court’s\nmandate”).\n D.\n Next, we turn to the integrated-computer-system requirement. We\npreviously upheld the original injunction’s provision demanding the creation\nof an “integrated computer system” containing the PMC children’s “complete\nrecords, including but not limited to a complete migration of all medical,\ndental, educational, placement recommendations, court records, mental health\nand caseworker records.” Stukenberg I, 907 F.3d at 282–83. The district court\nreincorporated this provision into the modified injunction and also included a\nprovision giving all relevant personnel access to the complete records in the\nintegrated computer system. 3\n The State does not deny that the district court faithfully adhered to\nStukenberg I by reincorporating these provisions. Nor could it. Rather, it seeks\nto reargue on the merits that the integrated-computer-system requirement\nshould be invalidated because it is unprecedented, tremendously expensive,\nand maybe even impossible to accomplish.\n We treat the State’s request as a quasi-motion for reconsideration on this\nissue. 4 And after careful review, we see that our initial decision upholding the\nintegrated computer system was erroneous. It is inconsistent with the broader\n\n\n\n 3 In Stukenberg I, we did not expressly validate the requirement that all personnel\nhave access to the complete records. We inadvertently listed the provision creating the\ncomputer system twice, instead of listing the accompanying access provision. 907 F.3d 282–\n83. No one disputes that Stukenberg I intended to validate the access provision as well.\n 4 We can do so because the mandate has not issued in Stukenberg I; the remand was\n\nlimited, and we retained jurisdiction. But by saying the mandate never issued, we do not\nmean to suggest that the district court was free to disregard Stukenberg I. It was not.\nConsequently, it is appropriate—as we have done throughout this opinion—to use the\nmandate rule (technically not quite on point) to evaluate the district court’s compliance with\nStukenberg I. We hold only that we, as the appellate panel that issued Stukenberg I, can\nreconsider our own prior holdings after a limited remand when the mandate never issued.\n 8\n\n Case: 18-40057 Document: 00515024789 Page: 9 Date Filed: 07/08/2019\n\n\n\n No. 18-40057\nremedial principles we laid out in Stukenberg I. The multimillion-dollar\ncomputer-system overhaul—while maybe a best practice—goes well beyond\nwhat is minimally required to remedy the caseload and oversight violations.\nIndeed, we find it (just like the caseload cap) to be “too blunt a remedy for a\ncomplex problem.” 907 F.3d at 274. An integrated computer system, which at\nmost two other States use, cannot represent the constitutional floor for record-\nkeeping.\n Accordingly, we now invalidate the integrated-computer-system\nrequirement and the accompanying access provision. The goal is a\nconstitutionally effective foster-care program, not a specific kind of computer\nsystem used to help achieve that goal.\n E.\n Invoking our expressed validation of the integrated computer system,\nthe district court ordered DFPS on remand “to address and remediate missing\nand nonexistent medical and mental health care records.” According to the\ndistrict court, a comprehensive computer system “would not be effective for\npreventing an unreasonable risk of serious harm if medical records were\nmissing or nonexistent.” Because we have invalidated the integrated computer\nsystem, there is no longer a justification for this provision. Therefore, it is\nvacated as well.\n F.\n Next up are the Monitor provisions. The original injunction contained 13\nprovisions appointing and listing the Monitors’ duties. We did not address\nthose provisions in Stukenberg I. The modified injunction includes those 13\noriginal provisions plus 3 new ones. The new provisions (1) give the Monitors\nremote access to the electronic systems DFPS uses to store data about the PMC\nchildren, (2) compel DFPS to “supply the Monitors [with] raw data relevant to\nthe 2015–2016 workstudy conducted by DFPS” and all the available data\n 9\n\n Case: 18-40057 Document: 00515024789 Page: 10 Date Filed: 07/08/2019\n\n\n\n No. 18-40057\n“relevant to all previous third-party studies,” and (3) command the State to\npay the Monitors. The State lodges both procedural and substantive attacks\nagainst these provisions.\n On the procedural side, the State argues that the limited remand is not\nthe time to impose new requirements that could have been included in the\noriginal permanent injunction. For support, the State again draws on\nODonnell II. But once more it is distinguishable. The problematic injunctive\nprovision in ODonnell II was substantive. It attempted to remedy a\nconstitutional deficiency the original injunction did not identify. 900 F.3d 220\nat 225. The Monitor provisions, on the other hand, are administrative. They do\nnot attempt to solve a new constitutional puzzle originally left unaddressed by\nthe district court; they simply represent the district court’s revised attempt to\nensure that the State fixes the constitutional problems it identified (and we\naffirmed) in the original injunction.\n As the State’s procedural argument is unavailing, we now turn to its\nsubstantive objections, which concern the remote access and third-party data. 5\n First, the State argues that the new provision providing the “Monitors,\ntheir staff[,] and consultants with unrestricted, routine and ongoing remote\naccess” to DFPS’s electronic systems is a serious confidentiality risk and could\nresult in the inadvertent alteration or destruction of vital records. The State is\nprimarily concerned with giving such unrestricted access to the staff and\nconsultants without requiring them to keep the information confidential. As\nthe State correctly points out, they may not be qualified to handle such\nsensitive information. The district court’s failure to address these legitimate\nconfidentiality concerns was an abuse of discretion. So while we affirm the\n\n\n\n 5The State has no substantive complaints about the provision compelling it to\ncompensate the Monitors.\n 10\n\n Case: 18-40057 Document: 00515024789 Page: 11 Date Filed: 07/08/2019\n\n\n\n No. 18-40057\nremote-access provision, we modify the injunction to require that any of the\nMonitors’ staff and consultants who have unrestricted, remote access to\nDFPS’s systems be qualified to handle the information (including screening for\ncriminal history), be taught how to use the systems, and be given\nconfidentiality agreements to sign.\n Second, the State argues that requiring DFPS to turn over “all available\nraw data relevant to all previous third-party studies” is overly burdensome,\nwasteful, and has no conceivable benefit. Plaintiffs do not contest this point in\ntheir brief. And we agree that requiring the State to turn over this data was\nan abuse of discretion. The district court made no findings justifying such an\nexpensive and time-consuming production. Nor did it state what the purpose\nof doing so would be. We vacate the injunctive provision dealing with the\nprevious third-party studies. This vacatur does not apply to the data relevant\nto the 2015–2016 workstudy to which the State has no objection.\n G.\n Finally, the State objects to the modified injunction’s termination\nprovisions. These same provisions were in the original injunction, yet we heard\nnothing from the State about them in the original appeal. The State cannot\nnow challenge these provisions. It is too late for that. The State’s arguments\nare waived. See Med. Ctr. Pharmacy v Holder, 634 F.3d 830, 834 (5th Cir. 2011)\n(“The waiver doctrine bars consideration of an issue that a party could have\nraised in an earlier appeal in the case.” (quotation omitted)).\n\n\n IV.\n As an administrative matter, Plaintiffs would like the stay lifted in full.\nWe decline to do so, and the stay will remain in place until the final mandate\nissues.\n\n\n 11\n\n Case: 18-40057 Document: 00515024789 Page: 12 Date Filed: 07/08/2019\n\n\n\n No. 18-40057\n * * *\n For the foregoing reasons, we AFFIRM in part, AFFIRM with\nMODIFICATION in part, and VACATE in part. The case is remanded to the\ndistrict court to begin implementing, without further changes, the modified\ninjunction with the alterations we have made.\n\n\n\n\n 12\n\n Case: 18-40057 Document: 00515024789 Page: 13 Date Filed: 07/08/2019\n\n\n\n No. 18-40057\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: M. D., BY NEXT FRIEND Sarah R. STUKENBERG ; Z. H., by Next Friend Carla B. Morrison ; S. A., by Next Friend Javier Solis ; A. M., by Next Friend Jennifer Talley; J. S., by Next Friend Anna J. Ricker; H. v. by Next Friend Anna J. Ricker; L. H., by Next Friend Estela C. Vasquez; C. H., by Next Friend Estela C. Vasquez; A. R., by Next Friend Tom McKenzie, Individually and on Behalf of All Other Similarly Situated, Plaintiffs-Appellees v. Greg ABBOTT, in His Official Capacity as Governor of the State of Texas; Courtney Phillips, in Her Official Capacity as Executive Commissioner of the Health and Human Services Commission of Texas; Henry Whitman, Jr., in His Official Capacity as Commissioner of the Department of Family and Protective Services of the State of Texas, Defendants-Appellants\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-08\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-40057 Document: 00515024789 Page: 1 Date Filed: 07/08/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n July 8, 2019\\n No. 18-40057\\n Lyle W. Cayce\\n Clerk\\nM. D., by next friend Sarah R. Stukenberg; Z. H., by next friend Carla B.\\nMorrison; S. A., by next friend Javier Solis; A. M., by next friend Jennifer\\nTalley; J. S., by next friend Anna J. Ricker; H. V., by next friend Anna J.\\nRicker; L. H., by next friend Estela C. Vasquez; C. H., by next friend Estela\\nC. Vasquez; A. R., by next friend Tom McKenzie, individually and on behalf\\nof all other similarly situated,\\n\\n Plaintiffs - Appellees\\n\\nv.\\n\\nGREG ABBOTT, in his official capacity as Governor of the State of Texas;\\nCOURTNEY PHILLIPS, in her official capacity as Executive Commissioner\\nof the Health and Human Services Commission of Texas; HENRY\\nWHITMAN, JR., in his official capacity as Commissioner of the Department\\nof Family and Protective Services of the State of Texas,\\n\\n Defendants - Appellants\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.\\nEDITH BROWN CLEMENT, Circuit Judge:\\n This case returns to us after a limited remand. After our opinion in M.D.\\nby Stukenberg v. Abbott (Stukenberg I), 907 F.3d 237 (5th Cir. 2018), the\\ndistrict court was tasked with modifying its injunction remedying certain\\nconstitutional deficiencies in Texas’s foster-care system. The State now asks\\n 35\\n\\n Case: 18-40057 Document: 00515024789 Page: 2 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\nus to vacate many of the modified injunction’s provisions. For the following\\nreasons, the modified injunction is affirmed in part, affirmed with modification\\nin part, and vacated in part.\\n I.\\n This case’s underlying facts are thoroughly laid out in Stukenberg I, 907\\nF.3d at 243–47. In short, this case is about the constitutionality of Texas’s\\nfoster-care system. Plaintiffs are a certified class of minor children in the\\npermanent management conservatorship (PMC) of the Department of Family\\nProtective Services (DFPS). We previously found that DFPS’s policies violated\\nPlaintiffs’ substantive-due-process rights in two ways: (1) by maintaining\\noverburdened caseworkers who are responsible for the children in the PMC;\\nand (2) by failing to adequately monitor and oversee the children in the\\nlicensed foster care (LFC) subclass. Id. at 256–68. But we reversed the district\\ncourt’s other two liability findings. Id. at 268–70. We did not believe that\\nDFPS’s placement array or the foster group homes—in and of themselves—\\ncreated a constitutionally cognizable harm to the children. Id.\\n Based on these findings, we evaluated the district court’s extensive\\ninjunction, which mandated dozens of specific remedial measures. Id. at 271–\\n87. We noted that an injunction must be narrowly tailored to cure the specific\\nconstitutional violations at issue and must not go beyond what is “minimally\\nrequired” to bring the State into constitutional compliance. Id. at 272. With\\nthis standard in mind, we validated and invalidated many of the injunction’s\\nspecific provisions. Id. at 271–87. We concluded by remanding the case to\\nmodify the permanent injunction “consistent with this opinion.” Id. at 288. The\\nremand was a limited one. Id.\\n After Stukenberg I issued, the district court promptly requested briefing\\non how to comply with Stukenberg I. And in November 2018, the district court\\n\\n\\n 2\\n\\n Case: 18-40057 Document: 00515024789 Page: 3 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\nissued the modified injunction. The State now appeals, unhappy with the\\ndistrict court’s revisions.\\n II.\\n Whether a modified injunction comports with a remand order is reviewed\\nde novo. See Ball v. LeBlanc, 881 F.3d 346, 350–51 (5th Cir. 2018). The district\\ncourt must “implement both the letter and the spirit of the appellate court’s\\nmandate and . . . not disregard the explicit directives of that court.” United\\nStates v. Lee, 358 F.3d 315, 321 (5th Cir. 2004). It cannot reopen issues\\nexpressly or implicitly decided by the appellate court. Gene & Gene, LLC v.\\nBioPay, LLC, 624 F.3d 698, 702 (5th Cir. 2010).\\n At the same time, the grant of a permanent injunction is reviewed for an\\nabuse of discretion. Stukenberg I, 907 F.3d at 248.\\n III.\\n The State argues that many of the modified injunction’s provisions are\\nimproper, either because they are inconsistent with Stukenberg I, are outside\\nthe scope of the limited remand, or are substantively problematic. The specific\\nprovisions at issue are: (1) the 24-hour-supervision provisions; (2) the face-to-\\nface-meeting provision; (3) the workload-study provisions; (4) the integrated-\\ncomputer-system provisions; (5) the missing-medical-records provision; (6) the\\nMonitor provisions; and (7) the termination provisions. We take them in that\\norder.\\n A.\\n In its 2015 liability opinion, the district court prohibited the State from\\nplacing children in “foster group homes that lack 24-hour awake-night\\nsupervision.” We did not disturb that ruling in Stukenberg I. On remand, the\\ndistrict court expanded the supervision requirement to apply to all PMC\\nplacements housing more than six children. The State urges that this\\nexpansion improperly exceeds the scope of the limited remand.\\n 3\\n\\n Case: 18-40057 Document: 00515024789 Page: 4 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\n In making this argument, the State misconstrues ODonnell v. Goodhart\\n(ODonnell II), where this court considered whether a modified injunction\\ndealing with Texas’s bail system complied with the mandate rule. 900 F.3d 220\\n(5th Cir. 2018). In a previous case, we had vacated the original preliminary\\ninjunction over the bail system and remanded so that the district court could\\n“craft a revised injunction—one that is narrowly tailored to cure the\\nconstitutional deficiencies the district court properly identified.” ODonnell v.\\nHarris Cty. (ODonnell I), 892 F.3d 147, 166–67 (5th Cir. 2018). In ODonnell II,\\nthis court found that a particular provision fell “outside the confines of [the]\\nnarrow remand” because it addressed a problem not “originally identified” by\\nthe district court. 900 F.3d at 225. This court continued: “Remand is not the\\ntime to bring new issues that could have been raised initially.” Id.\\n Such is not the case here. In Stukenberg I, we recognized that the 24-\\nhour-supervision requirement had remedied the “most egregious” problem\\nwith the foster group homes: a “lack of adequate supervision.” 907 F.3d 237,\\n270. The district court’s original injunction addressed that violation, albeit in\\nan overbroad manner. Indeed, we invalidated the original provision\\nprohibiting “any family-like placement that houses more than six children”\\nbecause we failed to see why—absent the supervision problems—the\\nconditions in the foster group homes unconstitutionally amplified the risk of\\nharm to the children. Id. at 270, 282. In contrast, rather than outright banning\\nplacements housing more than six children, the modified injunction simply\\nrequires 24-hour-supervision. In doing so, it hews more closely to the violation\\nidentified in Stukenberg I: the lack of proper supervision. Thus, this case is\\nunlike ODonnell II, as the district court has not attempted to rectify a newly\\nidentified problem.\\n In addition to its primary argument, the State also notes that the\\nmodified injunction’s 24-hour-supervision requirement would apply not only to\\n 4\\n\\n Case: 18-40057 Document: 00515024789 Page: 5 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\nLFC placements but also to unlicensed placements, such as kinship placements\\nin which a child is placed with a relative. This would be problematic. Plaintiffs\\ndo not object to modifying the requirement to clarify that it applies only to LFC\\nplacements. So we do exactly that. The 24-hour-supervision requirement is\\naffirmed with the modification that it applies only to LFC placements, not\\nunlicensed placements.\\n B.\\n In Stukenberg I, we invalidated many “caseload-specific injunction\\nprovisions.” 907 F.3d at 274. We did so because they “exceed[ed] what [was]\\nrequired to achieve constitutional compliance or [did] not directly address the\\nproblems giving rise to the caseload management violation.” Id. Among the\\nprovisions struck down for these reasons was one prohibiting DFPS from using\\nI-See-You (ISY) workers. 1 Id.\\n Despite our elimination of this provision, the district court reinserted a\\nsimilar one in the modified injunction. The injunction now requires that all\\nmonthly face-to-face meetings with the PMC children be conducted by primary\\ncaseworkers, not ISY workers. The State argues that the new provision is a\\nreincarnation of the invalidated one banning the use of ISY workers. While\\nnominally allowing ISY workers to exist, the new face-to-face provision\\neliminates their primary responsibility. Thus, the State argues that it is\\ninconsistent with Stukenberg I.\\n In response, Plaintiffs exclaim that the face-to-face provision is one of\\nthe modified injunction’s most important. On their account, it “directly\\naddresses the fundamental problems with the State’s existing practices with\\nregard to secondary caseworkers.” They then spill much ink pointing out the\\n\\n\\n 1 ISY workers are secondary caseworkers who help the primary caseworkers. 907 F.3d\\nat 245. They do so mainly by conducting in-home visits and confirming that the child “is still\\nthere.” Id.\\n 5\\n\\n Case: 18-40057 Document: 00515024789 Page: 6 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\ndeficiencies of ISY workers when it comes to conducting face-to-face visits with\\nthe PMC children and the virtues of requiring primary caseworkers (who have\\nmore training and experience) to conduct all face-to-face visits.\\n While Plaintiffs are correct that the State’s use of ISY workers has many\\nproblems, their argument fails to acknowledge that we did not find those\\nproblems constitutionally suspect in Stukenberg I. We discussed the\\ninsufficiency of ISY workers solely to show that DFPS’s use of them did not\\nshow a reasonable effort to alleviate the substantial risks associated with\\noverburdened primary caseworkers. 907 F.3d at 262–63. It was the crushing\\nworkload on primary caseworkers—not ISY workers’ face-to-face visits—that\\nwe held violated Plaintiffs’ substantive-due-process rights. Id. at 264–65. And\\nit is in relation to that violation that the district court was supposed to revise\\nthe injunction.\\n With this violation in mind, the modified injunction’s face-to-face\\nprovision cannot stand. Imposing on primary caseworkers the additional duty\\nof conducting all face-to-face visits no more “directly address[es] the problems\\ngiving rise to the caseload management violation” than does the invalidated\\nprovision eliminating ISY workers. Id. at 274. In fact, it would likely increase\\ntheir workload. It appears that this provision was the district court’s well-\\nintentioned attempt to fix the problems with ISY workers’ face-to-face visits.\\nBut eliminating those problems was not what the district court was charged\\nwith doing on remand.\\n The face-to-face provision is vacated as being inconsistent with\\nStukenberg I.\\n C.\\n The first time around, we struck down the caseload caps on primary\\ncaseworkers and the Residential Child Care Licensing (RCCL) investigators,\\nbut we also made clear that DFPS should “determine how many cases, on\\n 6\\n\\n Case: 18-40057 Document: 00515024789 Page: 7 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\naverage, caseworkers” and RCCL investigators can safely manage and should\\nthen establish internal guidelines for caseload ranges. Stukenberg I, 907 F.3d\\nat 274, 279. On remand, the district court implemented this recommendation\\nby ordering DFPS to conduct workload studies as to both types of workers. Yet\\nit did not leave the studies’ planning and execution solely in the hands of\\nDFPS. Instead, it stated that “DFPS, in consultation with and under\\nsupervision of the Monitors, shall propose [workload studies]” at which point\\nthe court would “convene a hearing to review the proposal[s].”\\n The State contends that by requiring the workload studies to be done\\nunder the Monitors’ and the court’s supervision, the district court deviated\\nfrom Stukenberg I’s instructions. The Stukenberg I opinion makes clear, the\\nState says, that DFPS should be able to determine—all on its own—how many\\ncases, on average, caseworkers and RCCL investigators can safely carry.\\n We reject the State’s argument. The district court undoubtedly has the\\nequitable power to oversee compliance with its own injunction. The supervision\\nrequirement over the workload studies simply makes explicit that implicit\\npower. We do not read Stukenberg I as forbidding the court from exercising\\ncontrol and supervision over the workload studies—especially when the State\\nhas a history of conducting them inadequately. See 907 F.3d at 261. Moreover,\\ndespite the supervision and input from the Monitors and the district court,\\nDFPS will still be involved in designing and conducting the workload studies,\\nand reaching conclusions from them. All this is to say, the district court’s\\nsupervision requirement is faithful to the spirit of Stukenberg I and does not\\ndo clear violence to its letter. 2 See Lee, 358 F.3d at 321 (noting that the district\\n\\n\\n\\n\\n 2 The State also complains that it is impossible to design and conduct the studies\\nwithin the 60-day timeframe the district court imposed. Should that be the case, the State\\ncan always move for an extension, which the court should generously consider.\\n 7\\n\\n Case: 18-40057 Document: 00515024789 Page: 8 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\ncourt must “implement both the letter and the spirit of the appellate court’s\\nmandate”).\\n D.\\n Next, we turn to the integrated-computer-system requirement. We\\npreviously upheld the original injunction’s provision demanding the creation\\nof an “integrated computer system” containing the PMC children’s “complete\\nrecords, including but not limited to a complete migration of all medical,\\ndental, educational, placement recommendations, court records, mental health\\nand caseworker records.” Stukenberg I, 907 F.3d at 282–83. The district court\\nreincorporated this provision into the modified injunction and also included a\\nprovision giving all relevant personnel access to the complete records in the\\nintegrated computer system. 3\\n The State does not deny that the district court faithfully adhered to\\nStukenberg I by reincorporating these provisions. Nor could it. Rather, it seeks\\nto reargue on the merits that the integrated-computer-system requirement\\nshould be invalidated because it is unprecedented, tremendously expensive,\\nand maybe even impossible to accomplish.\\n We treat the State’s request as a quasi-motion for reconsideration on this\\nissue. 4 And after careful review, we see that our initial decision upholding the\\nintegrated computer system was erroneous. It is inconsistent with the broader\\n\\n\\n\\n 3 In Stukenberg I, we did not expressly validate the requirement that all personnel\\nhave access to the complete records. We inadvertently listed the provision creating the\\ncomputer system twice, instead of listing the accompanying access provision. 907 F.3d 282–\\n83. No one disputes that Stukenberg I intended to validate the access provision as well.\\n 4 We can do so because the mandate has not issued in Stukenberg I; the remand was\\n\\nlimited, and we retained jurisdiction. But by saying the mandate never issued, we do not\\nmean to suggest that the district court was free to disregard Stukenberg I. It was not.\\nConsequently, it is appropriate—as we have done throughout this opinion—to use the\\nmandate rule (technically not quite on point) to evaluate the district court’s compliance with\\nStukenberg I. We hold only that we, as the appellate panel that issued Stukenberg I, can\\nreconsider our own prior holdings after a limited remand when the mandate never issued.\\n 8\\n\\n Case: 18-40057 Document: 00515024789 Page: 9 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\nremedial principles we laid out in Stukenberg I. The multimillion-dollar\\ncomputer-system overhaul—while maybe a best practice—goes well beyond\\nwhat is minimally required to remedy the caseload and oversight violations.\\nIndeed, we find it (just like the caseload cap) to be “too blunt a remedy for a\\ncomplex problem.” 907 F.3d at 274. An integrated computer system, which at\\nmost two other States use, cannot represent the constitutional floor for record-\\nkeeping.\\n Accordingly, we now invalidate the integrated-computer-system\\nrequirement and the accompanying access provision. The goal is a\\nconstitutionally effective foster-care program, not a specific kind of computer\\nsystem used to help achieve that goal.\\n E.\\n Invoking our expressed validation of the integrated computer system,\\nthe district court ordered DFPS on remand “to address and remediate missing\\nand nonexistent medical and mental health care records.” According to the\\ndistrict court, a comprehensive computer system “would not be effective for\\npreventing an unreasonable risk of serious harm if medical records were\\nmissing or nonexistent.” Because we have invalidated the integrated computer\\nsystem, there is no longer a justification for this provision. Therefore, it is\\nvacated as well.\\n F.\\n Next up are the Monitor provisions. The original injunction contained 13\\nprovisions appointing and listing the Monitors’ duties. We did not address\\nthose provisions in Stukenberg I. The modified injunction includes those 13\\noriginal provisions plus 3 new ones. The new provisions (1) give the Monitors\\nremote access to the electronic systems DFPS uses to store data about the PMC\\nchildren, (2) compel DFPS to “supply the Monitors [with] raw data relevant to\\nthe 2015–2016 workstudy conducted by DFPS” and all the available data\\n 9\\n\\n Case: 18-40057 Document: 00515024789 Page: 10 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\n“relevant to all previous third-party studies,” and (3) command the State to\\npay the Monitors. The State lodges both procedural and substantive attacks\\nagainst these provisions.\\n On the procedural side, the State argues that the limited remand is not\\nthe time to impose new requirements that could have been included in the\\noriginal permanent injunction. For support, the State again draws on\\nODonnell II. But once more it is distinguishable. The problematic injunctive\\nprovision in ODonnell II was substantive. It attempted to remedy a\\nconstitutional deficiency the original injunction did not identify. 900 F.3d 220\\nat 225. The Monitor provisions, on the other hand, are administrative. They do\\nnot attempt to solve a new constitutional puzzle originally left unaddressed by\\nthe district court; they simply represent the district court’s revised attempt to\\nensure that the State fixes the constitutional problems it identified (and we\\naffirmed) in the original injunction.\\n As the State’s procedural argument is unavailing, we now turn to its\\nsubstantive objections, which concern the remote access and third-party data. 5\\n First, the State argues that the new provision providing the “Monitors,\\ntheir staff[,] and consultants with unrestricted, routine and ongoing remote\\naccess” to DFPS’s electronic systems is a serious confidentiality risk and could\\nresult in the inadvertent alteration or destruction of vital records. The State is\\nprimarily concerned with giving such unrestricted access to the staff and\\nconsultants without requiring them to keep the information confidential. As\\nthe State correctly points out, they may not be qualified to handle such\\nsensitive information. The district court’s failure to address these legitimate\\nconfidentiality concerns was an abuse of discretion. So while we affirm the\\n\\n\\n\\n 5The State has no substantive complaints about the provision compelling it to\\ncompensate the Monitors.\\n 10\\n\\n Case: 18-40057 Document: 00515024789 Page: 11 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\nremote-access provision, we modify the injunction to require that any of the\\nMonitors’ staff and consultants who have unrestricted, remote access to\\nDFPS’s systems be qualified to handle the information (including screening for\\ncriminal history), be taught how to use the systems, and be given\\nconfidentiality agreements to sign.\\n Second, the State argues that requiring DFPS to turn over “all available\\nraw data relevant to all previous third-party studies” is overly burdensome,\\nwasteful, and has no conceivable benefit. Plaintiffs do not contest this point in\\ntheir brief. And we agree that requiring the State to turn over this data was\\nan abuse of discretion. The district court made no findings justifying such an\\nexpensive and time-consuming production. Nor did it state what the purpose\\nof doing so would be. We vacate the injunctive provision dealing with the\\nprevious third-party studies. This vacatur does not apply to the data relevant\\nto the 2015–2016 workstudy to which the State has no objection.\\n G.\\n Finally, the State objects to the modified injunction’s termination\\nprovisions. These same provisions were in the original injunction, yet we heard\\nnothing from the State about them in the original appeal. The State cannot\\nnow challenge these provisions. It is too late for that. The State’s arguments\\nare waived. See Med. Ctr. Pharmacy v Holder, 634 F.3d 830, 834 (5th Cir. 2011)\\n(“The waiver doctrine bars consideration of an issue that a party could have\\nraised in an earlier appeal in the case.” (quotation omitted)).\\n\\n\\n IV.\\n As an administrative matter, Plaintiffs would like the stay lifted in full.\\nWe decline to do so, and the stay will remain in place until the final mandate\\nissues.\\n\\n\\n 11\\n\\n Case: 18-40057 Document: 00515024789 Page: 12 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\n * * *\\n For the foregoing reasons, we AFFIRM in part, AFFIRM with\\nMODIFICATION in part, and VACATE in part. The case is remanded to the\\ndistrict court to begin implementing, without further changes, the modified\\ninjunction with the alterations we have made.\\n\\n\\n\\n\\n 12\\n\\n Case: 18-40057 Document: 00515024789 Page: 13 Date Filed: 07/08/2019\\n\\n\\n\\n No. 18-40057\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2985,"cells":{"id":{"kind":"number","value":4637472,"string":"4,637,472"},"name":{"kind":"string","value":"CITY OF HEARNE, TEXAS, Plaintiff v. Milton JOHNSON, Defendant-Cross Claimant-Appellee v. Bryan F. Russ, Jr., Cross Defendant-Appellant"},"name_abbreviation":{"kind":"string","value":"City of Hearne, Texas v. Milton Johnson"},"decision_date":{"kind":"string","value":"2019-07-08"},"docket_number":{"kind":"string","value":"17-50970"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Dennis, Owen, Southwick\", \"parties\": \"\", \"opinions\": [{\"author\": \"LESLIE H. SOUTHWICK, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-50970 Document: 00515025687 Page: 1 Date Filed: 07/08/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 17-50970 FILED\\n July 8, 2019\\n Lyle W. Cayce\\nCITY OF HEARNE, TEXAS Clerk\\n\\n Plaintiff\\nv.\\n\\nMILTON JOHNSON,\\n\\n Defendant-Cross Claimant - Appellee\\nv.\\n\\nBRYAN F. RUSS, JR.,\\n\\n Cross Defendant - Appellant\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore DENNIS, OWEN, and SOUTHWICK, Circuit Judges.\\nLESLIE H. SOUTHWICK, Circuit Judge:\\n This is an appeal from the denial of qualified immunity to a city attorney\\nin a Section 1983 suit. We conclude the plaintiff does not have standing to\\npursue the claim in federal court. We therefore VACATE and DISMISS.\\n FACTUAL AND PROCEDURAL BACKGROUND\\n Organizers in Hearne, Texas circulated an initiative petition to force a\\nforensic audit of the city’s finances. Under the City’s charter, a petition, after\\nbeing signed by a required number of voters, is submitted to the City. At that\\npoint, a designated City administrator has fifteen days to transmit the petition\\n\\n Case: 17-50970 Document: 00515025687 Page: 2 Date Filed: 07/08/2019\\n\\n\\n\\n No. 17-50970\\nto the city council. Within ten days of receiving the petition, the city council\\nmay adopt the measure the petition demands or send it to an election. Milton\\nJohnson, an organizer of the petition here, submitted the petition to the City’s\\nclerk in March 2016. Johnson alleges the City’s policy was to have the clerk\\nforward petitions to the county elections administrator for verification of the\\nrequired signatures. Here, though, he claims the city attorney Bryan Russ\\nobtained the signature pages to prevent their delivery to the county elections\\nadministrator in an effort to keep the initiative from appearing on a ballot.\\n While Russ was allegedly preventing the signatures’ certification and\\nbefore any of them were certified, the city council considered Johnson’s petition\\nand voted to challenge its validity. That challenge came in the form of a\\nlawsuit against Johnson in Texas state court on grounds having nothing to do\\nwith the signature requirement. By the end of April 2016, all of the signatures\\nwere delivered for certification.\\n Along with his answer to the City’s suit, Johnson filed a third-party\\ncomplaint against Russ and his law firm under 42 U.S.C. § 1983. Russ\\nremoved the suit to federal court in July 2016, relying on the right to remove\\nwhen federal and state law claims are joined. See 28 U.S.C. § 1441(c). The\\nCity and Johnson subsequently settled their dispute. Johnson’s claims against\\nthe law firm were dismissed for failure to state a claim. See FED. R. CIV. P.\\n12(b)(6). The only surviving dispute is Johnson’s Section 1983 claim against\\nRuss. Russ moved for summary judgment based on qualified immunity, but\\nthe motion was denied. He appealed.\\n DISCUSSION\\n Johnson alleges that Russ violated his “First Amendment right to\\npetition for redress of grievances as well as his Fourteenth Amendment right\\nto equal protection.” We decline to reach the merits of Russ’s qualified\\n\\n\\n 2\\n\\n Case: 17-50970 Document: 00515025687 Page: 3 Date Filed: 07/08/2019\\n\\n\\n\\n No. 17-50970\\nimmunity defense to these arguments because Johnson lacks standing to\\nassert either. 1\\n Neither party has questioned our jurisdiction over this appeal, but “we\\nmust raise the issue of jurisdiction on our own motion if necessary.” Bernhard\\nv. Whitney Nat’l Bank, 523 F.3d 546, 550 (5th Cir. 2008). This includes a sua\\nsponte examination of the district court’s jurisdiction. See United States v.\\nCreamer Indus. Inc., 349 F.2d 625, 626 (5th Cir. 1965). Johnson as the party\\nasserting federal jurisdiction must show it exists, an obligation that applies\\neven when we sua sponte raise the question in the review of a summary\\njudgment determination. Ford v. NYLCare Health Plans of Gulf Coast, Inc.,\\n301 F.3d 329, 332–33 (5th Cir. 2002).\\n It is true that Johnson involuntarily arrived in the federal court because\\nthe defendant Russ removed the case from state court. Once in federal court,\\nthough, Johnson sought the court’s resolution of Section 1983 claims against\\nRuss. In order to have the court resolve those claims, it is Johnson’s burden to\\ndemonstrate we have jurisdiction. DaimlerChrysler Corp. v. Cuno, 547 U.S.\\n332, 339, 342 n.3 (2006).\\n The jurisdictional question is whether Johnson has standing. He “must\\nshow: (1) [he] has suffered, or imminently will suffer, a concrete and\\nparticularized injury-in-fact; (2) the injury is fairly traceable to [Russ’s]\\nconduct; and (3) a favorable judgment is likely to redress the injury.” Houston\\nChronicle Publ’g Co. v. City of League City, 488 F.3d 613, 617 (5th Cir. 2007).\\n\\n\\n\\n\\n 1 On appeal, Johnson also asserts a First Amendment retaliation claim and argues\\nRuss’s actions would chill behavior protected by the First Amendment. He did not present\\nthese arguments in his amended complaint, and he only made passing reference to retaliation\\nin opposition to Russ’s motion for summary judgment. Plaintiffs waive an argument when\\n“they fail[] to argue or brief it to the district court” and instead only make general reference\\nto it. Davidson v. Fairchild Controls Corp., 882 F.3d 180, 185 (5th Cir. 2018). Johnson has\\nwaived these arguments.\\n 3\\n\\n Case: 17-50970 Document: 00515025687 Page: 4 Date Filed: 07/08/2019\\n\\n\\n\\n No. 17-50970\\nMere allegations are insufficient to defeat a motion for summary judgment.\\nInstead, through an affidavit or other evidence, the opponent of the motion\\nmust offer “specific facts” that “will be taken to be true.” Lujan v. Defs. of\\nWildlife, 504 U.S. 555, 561 (1992) (citations omitted). In our ana;ysis of\\nstanding, we grant Johnson “all reasonable factual inferences” in deciding\\nwhether any “genuine issue of material fact exists.” Barrett Comput. Servs.,\\nInc. v. PDA, Inc., 884 F.2d 214, 219 (5th Cir. 1989).\\n We separately examine standing for Johnson’s two current claims.\\n\\n\\n I. First Amendment claim\\n The First Amendment prohibits Congress from “mak[ing a] law . . .\\nabridging . . . the right of the people . . . to petition the Government for a redress\\nof grievances.” U.S. CONST. amend. I. The requirements of the First\\nAmendment generally apply to the states through the Fourteenth Amendment.\\nMeyer v. Grant, 486 U.S. 414, 420 (1988). States are not required to grant their\\ncitizens a right to seek reform through popular initiatives, but if they do so,\\nthey must comply with the First Amendment’s protection of freedom of\\nexpression. John Doe 1 v. Reed, 561 U.S. 186, 195 (2010). The First\\nAmendment does not mandate a result once such petitions are received. See\\nMinnesota State Bd. For Cmty. Colls. v. Knight, 465 U.S. 271, 285 (1984).\\nJohnson claims Russ violated his right to petition because he “tried to keep the\\ninitiative off the ballot by keeping the city council from knowing the number of\\neligible signatures on the petition.” Under the City’s charter, the signature\\nrequirement is a preliminary step to the city council’s review of a petition.\\nOnce the city council reviews a petition, it can decide to send it to a ballot or\\nunilaterally approve the proposed measure.\\n The sort of harm Johnson alleges is a “procedural injury.” “[T]he\\nclaimed injury arises from an alleged failure on the part of the injury-causing\\n 4\\n\\n Case: 17-50970 Document: 00515025687 Page: 5 Date Filed: 07/08/2019\\n\\n\\n\\n No. 17-50970\\nparty to adhere to a prescribed process in adjudicating the petitioner’s\\nsubstantive rights, rather than from the substantive decision itself.” Spectrum\\nFive LLC v. FCC, 758 F.3d 254, 264 n.10 (D.C. Cir. 2014). These injuries occur\\nwhen a defendant “fails to follow a . . . procedure, . . . and this failure increases\\nthe risk of future harm.” Christopher T. Burt, Procedural Injury Standing\\nafter Lujan v. Defenders of Wildlife, 62 U. CHI. L. REV. 275, 276 (1995). This\\nsquares with Johnson’s claims because Russ’s alleged misdeeds do not\\nintrinsically injure Johnson. They only injure him to the extent they affect his\\nability to place the petition before the city council and ultimately place the\\nissue on a ballot.\\n It is not enough to create standing to claim that the process for handling\\nJohnson’s petition was not followed. A “deprivation of a procedural right\\nwithout some concrete interest that is affected by the deprivation — a\\nprocedural right in vacuo — is insufficient to create Article III standing.”\\nSummers v. Earth Island Inst., 555 U.S. 488, 496 (2009). Johnson stipulated\\nin district court that the city council considered the petition and voted to\\nchallenge it in a Texas state court only seven days after he submitted it.\\nFurther, the City’s challenge to the petition was unrelated to the signature\\nrequirement. Johnson attempts to make a fact dispute out of whether the\\nCity’s challenge was related to the signature requirement. The record,\\nhowever, contains the complaint filed in Texas state court. There is no factual\\ndoubt that the City’s challenge to the petition’s validity was on grounds\\nunrelated to the signature requirement. Johnson also stipulated all of the\\nsignatures were submitted in a timeframe sufficient to place the petition on a\\nballot before federal jurisdiction was invoked. See TEX. ELEC. CODE ANN. §§\\n3.005(c), 41.001(a) (detailing statutory deadlines for placing issues on a ballot).\\n Thus, even if Russ failed to follow some required procedure regarding\\nthe petition signatures, his alleged actions were not an injury “connected to [a]\\n 5\\n\\n Case: 17-50970 Document: 00515025687 Page: 6 Date Filed: 07/08/2019\\n\\n\\n\\n No. 17-50970\\nsubstantive result.” Massachusetts v. EPA, 549 U.S. 497, 518 (2007) (quoting\\nSugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 94–95 (D.C. Cir.\\n2002)). Because Johnson’s claimed procedural injury does not impact any\\nconcrete interest, he lacks standing to claim that Russ violated his First\\nAmendment right to petition.\\n\\n\\n II. Equal Protection claim\\n Johnson’s equal protection claim relies on a theory sometimes referred\\nto as a “class-of-one” claim. He argues Russ intentionally singled him out for\\ntreatment “different[] from others similarly situated” with “no rational basis\\nfor the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562,\\n564 (2000). Although Russ’s alleged treatment of the signatures is a\\nprocedural injury in the context of the First Amendment right to petition, it\\nmight also be an equal protection injury. A constitutional violation can occur\\nsimply with “the denial of equal treatment resulting from the imposition of [a]\\nbarrier [to a benefit], not the ultimate inability to obtain the benefit.”\\nNortheastern Fla. Chapter of Associated Gen. Contractors of Am. v. City of\\nJacksonville, 508 U.S. 656, 666 (1993). That is, an equal protection injury\\noccurs in “the inability to compete on an equal footing in the . . . process,”\\nregardless of whether there was any loss of a substantive benefit. Id.\\n Here, Russ’s alleged actions did not create any barrier for Johnson.\\nAgain, the city council considered the petition and acted on it seven days after\\nJohnson submitted it and before any of the signatures were certified. By the\\ntime Johnson’s claims arrived at the district court, the City had processed the\\npetition as completely as it could have within the necessary timeframes.\\nJohnson did not encounter any barrier erected by Russ in the processing of the\\npetition, and he does not have standing to bring his equal protection claim.\\n ***\\n 6\\n\\n Case: 17-50970 Document: 00515025687 Page: 7 Date Filed: 07/08/2019\\n\\n\\n\\n No. 17-50970\\n In deciding the proper order to conclude our review, we are guided by the\\nfact that even though this case was removed from state court, the only claims\\nare under Section 1983 for violations of the United States Constitution. In a\\nsimilar combination of a suit removed from state court that pursued only\\nfederal claims for which the plaintiff had no standing, we affirmed dismissal\\nof the action and did not consider a remand to state court. Williams v. Parker,\\n843 F.3d 617, 623 (5th Cir. 2016). Nothing in the current case suggests a\\ndifferent order.\\n The district court’s decision is VACATED and the case is DISMISSED.\\n\\n\\n\\n\\n 7\\n\\n Case: 17-50970 Document: 00515025687 Page: 8 Date Filed: 07/08/2019\\n\\n\\n\\n No. 17-50970\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4414725/\", \"author_raw\": \"LESLIE H. SOUTHWICK, Circuit Judge:\"}, {\"author\": \"JAMES L. DENNIS, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"JAMES L. DENNIS, Circuit Judge, dissenting:\\n Plaintiff Milton Johnson challenges the City of Hearne’s response to a\\npetition he submitted seeking to place on the ballot an initiative requiring the\\nCity to conduct a forensic audit of its finances. Johnson alleges that the City’s\\nmishandling of his petition, on which he and others had secured 517\\nsignatures, violated his First Amendment right to petition the government for\\nthe redress of grievances. 1 Instead of deciding whether the alleged\\nmishandling violates the Constitution, the majority incorrectly determines\\nthat Johnson lacks a sufficiently concrete injury-in-fact to pursue his claims of\\nconstitutional violation. Because I disagree with this conclusion and instead\\nbelieve Johnson has demonstrated an injury-in-fact, I respectfully dissent.\\n To reach this result, the majority relies on the proposition that Johnson\\nasserts merely a “procedural injury” claiming violation of “a procedural right\\nin vacuo,” and for that reason his injury is insufficiently concrete to confer\\nstanding under the Supreme Court’s decision in Summers v. Earth Island\\nInstitute, 555 U.S. 488 (2009). Because Johnson’s contention that Russ\\nmishandled his initiative petition was not, according to the majority,\\n“connected to a substantive result,” his “procedural injury does not impact any\\nconcrete interest.” Respectfully, the majority’s use of the “procedural injury”\\nconcept here is mistaken. The Supreme Court in Spokeo, Inc. v. Robins\\n\\n\\n\\n 1 Although it appears unfair that Johnson should be required to demonstrate standing\\nto a degree that would survive summary judgment when he was never put on notice that he\\nwould be required to make such a showing because no one moved for summary judgment on\\nthe basis of lack of standing below, see Ford v. NYLCare Health Plans of Gulf Coast, Inc., 301\\nF.3d 329, 334–39 (5th Cir. 2002) (Benavides, J., specially concurring), Johnson meets even\\nthis heightened requirement. Johnson points to evidence demonstrating that Russ submitted\\ncertain signature pages to the county election administrator belatedly and did not inform the\\nCity Council of a letter from the administrator stating that the petition had insufficient\\nsignatures.\\n 8\\n\\n Case: 17-50970 Document: 00515025687 Page: 9 Date Filed: 07/08/2019\\n\\n\\n\\n No. 17-50970\\nexplained that “a bare procedural violation, divorced from any concrete harm,\\n[could not] satisfy the injury-in-fact requirement of Article III” because “Article\\nIII requires a concrete injury even in the context of a statutory violation.” 136\\nS. Ct. 1540, 1549 (2016), as revised (May 24, 2016). The key word in this\\nSupreme Court opinion for Johnson’s constitutional claim is “statutory.” Id.\\n(emphasis added). The Supreme Court’s precedent makes clear that the\\n“procedural injury” concept was meant for application only to statutory rights\\ncreated by Congress, not rights conferred by the Constitution itself, such as\\nJohnson’s First Amendment claim. See id. (“Congress’ role in identifying and\\nelevating intangible harms does not mean that a plaintiff automatically\\nsatisfies the injury-in-fact requirement whenever a statute grants a person a\\nstatutory right and purports to authorize that person to sue to vindicate that\\nright.” (emphasis added)); Summers, 555 U.S. at 497 (noting that conferral of\\na procedural right by Congress does not lower the threshold requirement for\\ndemonstrating an injury-in-fact); Massachusetts v. E.P.A., 549 U.S. 497, 517–\\n18 (2007) (explaining that the right to sue for a procedural injury is vested in\\n“a litigant to whom Congress has accorded a procedural right to protect his\\nconcrete interests” (internal quotation marks omitted)).\\n Although couched in the language and case law of standing, the\\nmajority’s “procedural injury” analysis is, in reality, a veiled determination\\nthat Johnson’s claims lack merit. As the majority states, “Russ’s alleged\\nmisdeeds . . . . only injure [Johnson] to the extent they affect his ability to place\\nthe petition before the city council and ultimately on the ballot.” This logic,\\nthough perhaps initially appealing, essentially states that Russ’s conduct did\\nnot violate Johnson’s First Amendment rights. That is, the majority\\nessentially finds that the First Amendment’s scope is narrower than Johnson\\nasserts. Whether that is an accurate statement of the law aside, it is certainly\\n 9\\n\\n Case: 17-50970 Document: 00515025687 Page: 10 Date Filed: 07/08/2019\\n\\n\\n\\n No. 17-50970\\nnot a determination to be made under the guise of a dismissal on standing\\ngrounds for lack of subject-matter jurisdiction. The Supreme Court has\\ncautioned against passing on the merits of a case through a determination of\\nlack of jurisdiction: “Dismissal for lack of subject-matter jurisdiction because\\nof the inadequacy of the federal claim is proper only when the claim is ‘so\\ninsubstantial, implausible, foreclosed by prior decisions of this Court, or\\notherwise completely devoid of merit as not to involve a federal controversy.’”\\nSteel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (quoting Oneida\\nIndian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666 (1974)); see also\\nBell v. Hood, 327 U.S. 678, 684–85 (1946) (holding jurisdiction existed where\\n“the right of the petitioners to recover under their complaint will be sustained\\nif the Constitution and laws of the United States are given one construction\\nand will be defeated if they are given another”). And, as the Supreme Court\\nfurther stated, “[i]t is firmly established in our cases that the absence of a valid\\n(as opposed to arguable) cause of action does not implicate subject-matter\\njurisdiction, i.e., the courts’ statutory or constitutional power to adjudicate the\\ncase.” Steel Co., 523 U.S. at 89.\\n Properly considered, the injury-in-fact analysis for Johnson’s First\\nAmendment claim is simple. The standard injury-in-fact analysis required by\\nLujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) makes quick work of\\nthe injury-in-fact requirement: Where “the plaintiff is himself an object of the\\naction (or forgone action) at issue,” “there is ordinarily little question that the\\naction or inaction has caused him injury, and that a judgment preventing or\\nrequiring the action will redress it.” Lujan v. Defs. of Wildlife, 504 U.S. 555,\\n561 (1992). Stated another way, “the requirement of standing ‘focuses on the\\nparty seeking to get his complaint before a federal court and not on the issues\\nhe wishes to have adjudicated.’” Valley Forge Christian Coll. v. Americans\\n 10\\n\\n Case: 17-50970 Document: 00515025687 Page: 11 Date Filed: 07/08/2019\\n\\n\\n\\n No. 17-50970\\nUnited for Separation of Church & State, Inc., 454 U.S. 464, 484 (1982)\\n(quoting Flast v. Cohen, 392 U.S. 83, 99 (1968)). Johnson claims that Russ\\ninterfered with his constitutional right to petition the government by\\nmishandling his initiative petition, and the Supreme Court has expressly\\nrecognized that initiative petitions enjoy protection from government\\ninterference under the First Amendment and circulation of an initiative\\npetition is “an area in which the importance of First Amendment protections\\nis at its zenith.” Meyer v. Grant, 486 U.S. 414, 421–24 (1988) (internal\\nquotation marks omitted) (finding unconstitutional a Colorado law prohibiting\\npayments to petition circulators as infringing on First Amendment\\nprotections). I submit that, based on this claimed violation, Johnson easily\\ndemonstrates a sufficiently concrete and particular injury-in-fact.\\n For these reasons, I respectfully dissent.\\n\\n\\n\\n\\n 11\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4414725/\", \"author_raw\": \"JAMES L. DENNIS, Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"DENNIS"},"judge2":{"kind":"string","value":"OWEN"},"judge3":{"kind":"string","value":"SOUTHWICK"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":1,"string":"1"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4637472/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: CITY OF HEARNE, TEXAS, Plaintiff v. Milton JOHNSON, Defendant-Cross Claimant-Appellee v. Bryan F. Russ, Jr., Cross Defendant-Appellant\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-08\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-50970 Document: 00515025687 Page: 1 Date Filed: 07/08/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 17-50970 FILED\n July 8, 2019\n Lyle W. Cayce\nCITY OF HEARNE, TEXAS Clerk\n\n Plaintiff\nv.\n\nMILTON JOHNSON,\n\n Defendant-Cross Claimant - Appellee\nv.\n\nBRYAN F. RUSS, JR.,\n\n Cross Defendant - Appellant\n\n\n\n Appeal from the United States District Court\n for the Western District of Texas\n\n\nBefore DENNIS, OWEN, and SOUTHWICK, Circuit Judges.\nLESLIE H. SOUTHWICK, Circuit Judge:\n This is an appeal from the denial of qualified immunity to a city attorney\nin a Section 1983 suit. We conclude the plaintiff does not have standing to\npursue the claim in federal court. We therefore VACATE and DISMISS.\n FACTUAL AND PROCEDURAL BACKGROUND\n Organizers in Hearne, Texas circulated an initiative petition to force a\nforensic audit of the city’s finances. Under the City’s charter, a petition, after\nbeing signed by a required number of voters, is submitted to the City. At that\npoint, a designated City administrator has fifteen days to transmit the petition\n\n Case: 17-50970 Document: 00515025687 Page: 2 Date Filed: 07/08/2019\n\n\n\n No. 17-50970\nto the city council. Within ten days of receiving the petition, the city council\nmay adopt the measure the petition demands or send it to an election. Milton\nJohnson, an organizer of the petition here, submitted the petition to the City’s\nclerk in March 2016. Johnson alleges the City’s policy was to have the clerk\nforward petitions to the county elections administrator for verification of the\nrequired signatures. Here, though, he claims the city attorney Bryan Russ\nobtained the signature pages to prevent their delivery to the county elections\nadministrator in an effort to keep the initiative from appearing on a ballot.\n While Russ was allegedly preventing the signatures’ certification and\nbefore any of them were certified, the city council considered Johnson’s petition\nand voted to challenge its validity. That challenge came in the form of a\nlawsuit against Johnson in Texas state court on grounds having nothing to do\nwith the signature requirement. By the end of April 2016, all of the signatures\nwere delivered for certification.\n Along with his answer to the City’s suit, Johnson filed a third-party\ncomplaint against Russ and his law firm under 42 U.S.C. § 1983. Russ\nremoved the suit to federal court in July 2016, relying on the right to remove\nwhen federal and state law claims are joined. See 28 U.S.C. § 1441(c). The\nCity and Johnson subsequently settled their dispute. Johnson’s claims against\nthe law firm were dismissed for failure to state a claim. See FED. R. CIV. P.\n12(b)(6). The only surviving dispute is Johnson’s Section 1983 claim against\nRuss. Russ moved for summary judgment based on qualified immunity, but\nthe motion was denied. He appealed.\n DISCUSSION\n Johnson alleges that Russ violated his “First Amendment right to\npetition for redress of grievances as well as his Fourteenth Amendment right\nto equal protection.” We decline to reach the merits of Russ’s qualified\n\n\n 2\n\n Case: 17-50970 Document: 00515025687 Page: 3 Date Filed: 07/08/2019\n\n\n\n No. 17-50970\nimmunity defense to these arguments because Johnson lacks standing to\nassert either. 1\n Neither party has questioned our jurisdiction over this appeal, but “we\nmust raise the issue of jurisdiction on our own motion if necessary.” Bernhard\nv. Whitney Nat’l Bank, 523 F.3d 546, 550 (5th Cir. 2008). This includes a sua\nsponte examination of the district court’s jurisdiction. See United States v.\nCreamer Indus. Inc., 349 F.2d 625, 626 (5th Cir. 1965). Johnson as the party\nasserting federal jurisdiction must show it exists, an obligation that applies\neven when we sua sponte raise the question in the review of a summary\njudgment determination. Ford v. NYLCare Health Plans of Gulf Coast, Inc.,\n301 F.3d 329, 332–33 (5th Cir. 2002).\n It is true that Johnson involuntarily arrived in the federal court because\nthe defendant Russ removed the case from state court. Once in federal court,\nthough, Johnson sought the court’s resolution of Section 1983 claims against\nRuss. In order to have the court resolve those claims, it is Johnson’s burden to\ndemonstrate we have jurisdiction. DaimlerChrysler Corp. v. Cuno, 547 U.S.\n332, 339, 342 n.3 (2006).\n The jurisdictional question is whether Johnson has standing. He “must\nshow: (1) [he] has suffered, or imminently will suffer, a concrete and\nparticularized injury-in-fact; (2) the injury is fairly traceable to [Russ’s]\nconduct; and (3) a favorable judgment is likely to redress the injury.” Houston\nChronicle Publ’g Co. v. City of League City, 488 F.3d 613, 617 (5th Cir. 2007).\n\n\n\n\n 1 On appeal, Johnson also asserts a First Amendment retaliation claim and argues\nRuss’s actions would chill behavior protected by the First Amendment. He did not present\nthese arguments in his amended complaint, and he only made passing reference to retaliation\nin opposition to Russ’s motion for summary judgment. Plaintiffs waive an argument when\n“they fail[] to argue or brief it to the district court” and instead only make general reference\nto it. Davidson v. Fairchild Controls Corp., 882 F.3d 180, 185 (5th Cir. 2018). Johnson has\nwaived these arguments.\n 3\n\n Case: 17-50970 Document: 00515025687 Page: 4 Date Filed: 07/08/2019\n\n\n\n No. 17-50970\nMere allegations are insufficient to defeat a motion for summary judgment.\nInstead, through an affidavit or other evidence, the opponent of the motion\nmust offer “specific facts” that “will be taken to be true.” Lujan v. Defs. of\nWildlife, 504 U.S. 555, 561 (1992) (citations omitted). In our ana;ysis of\nstanding, we grant Johnson “all reasonable factual inferences” in deciding\nwhether any “genuine issue of material fact exists.” Barrett Comput. Servs.,\nInc. v. PDA, Inc., 884 F.2d 214, 219 (5th Cir. 1989).\n We separately examine standing for Johnson’s two current claims.\n\n\n I. First Amendment claim\n The First Amendment prohibits Congress from “mak[ing a] law . . .\nabridging . . . the right of the people . . . to petition the Government for a redress\nof grievances.” U.S. CONST. amend. I. The requirements of the First\nAmendment generally apply to the states through the Fourteenth Amendment.\nMeyer v. Grant, 486 U.S. 414, 420 (1988). States are not required to grant their\ncitizens a right to seek reform through popular initiatives, but if they do so,\nthey must comply with the First Amendment’s protection of freedom of\nexpression. John Doe 1 v. Reed, 561 U.S. 186, 195 (2010). The First\nAmendment does not mandate a result once such petitions are received. See\nMinnesota State Bd. For Cmty. Colls. v. Knight, 465 U.S. 271, 285 (1984).\nJohnson claims Russ violated his right to petition because he “tried to keep the\ninitiative off the ballot by keeping the city council from knowing the number of\neligible signatures on the petition.” Under the City’s charter, the signature\nrequirement is a preliminary step to the city council’s review of a petition.\nOnce the city council reviews a petition, it can decide to send it to a ballot or\nunilaterally approve the proposed measure.\n The sort of harm Johnson alleges is a “procedural injury.” “[T]he\nclaimed injury arises from an alleged failure on the part of the injury-causing\n 4\n\n Case: 17-50970 Document: 00515025687 Page: 5 Date Filed: 07/08/2019\n\n\n\n No. 17-50970\nparty to adhere to a prescribed process in adjudicating the petitioner’s\nsubstantive rights, rather than from the substantive decision itself.” Spectrum\nFive LLC v. FCC, 758 F.3d 254, 264 n.10 (D.C. Cir. 2014). These injuries occur\nwhen a defendant “fails to follow a . . . procedure, . . . and this failure increases\nthe risk of future harm.” Christopher T. Burt, Procedural Injury Standing\nafter Lujan v. Defenders of Wildlife, 62 U. CHI. L. REV. 275, 276 (1995). This\nsquares with Johnson’s claims because Russ’s alleged misdeeds do not\nintrinsically injure Johnson. They only injure him to the extent they affect his\nability to place the petition before the city council and ultimately place the\nissue on a ballot.\n It is not enough to create standing to claim that the process for handling\nJohnson’s petition was not followed. A “deprivation of a procedural right\nwithout some concrete interest that is affected by the deprivation — a\nprocedural right in vacuo — is insufficient to create Article III standing.”\nSummers v. Earth Island Inst., 555 U.S. 488, 496 (2009). Johnson stipulated\nin district court that the city council considered the petition and voted to\nchallenge it in a Texas state court only seven days after he submitted it.\nFurther, the City’s challenge to the petition was unrelated to the signature\nrequirement. Johnson attempts to make a fact dispute out of whether the\nCity’s challenge was related to the signature requirement. The record,\nhowever, contains the complaint filed in Texas state court. There is no factual\ndoubt that the City’s challenge to the petition’s validity was on grounds\nunrelated to the signature requirement. Johnson also stipulated all of the\nsignatures were submitted in a timeframe sufficient to place the petition on a\nballot before federal jurisdiction was invoked. See TEX. ELEC. CODE ANN. §§\n3.005(c), 41.001(a) (detailing statutory deadlines for placing issues on a ballot).\n Thus, even if Russ failed to follow some required procedure regarding\nthe petition signatures, his alleged actions were not an injury “connected to [a]\n 5\n\n Case: 17-50970 Document: 00515025687 Page: 6 Date Filed: 07/08/2019\n\n\n\n No. 17-50970\nsubstantive result.” Massachusetts v. EPA, 549 U.S. 497, 518 (2007) (quoting\nSugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 94–95 (D.C. Cir.\n2002)). Because Johnson’s claimed procedural injury does not impact any\nconcrete interest, he lacks standing to claim that Russ violated his First\nAmendment right to petition.\n\n\n II. Equal Protection claim\n Johnson’s equal protection claim relies on a theory sometimes referred\nto as a “class-of-one” claim. He argues Russ intentionally singled him out for\ntreatment “different[] from others similarly situated” with “no rational basis\nfor the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562,\n564 (2000). Although Russ’s alleged treatment of the signatures is a\nprocedural injury in the context of the First Amendment right to petition, it\nmight also be an equal protection injury. A constitutional violation can occur\nsimply with “the denial of equal treatment resulting from the imposition of [a]\nbarrier [to a benefit], not the ultimate inability to obtain the benefit.”\nNortheastern Fla. Chapter of Associated Gen. Contractors of Am. v. City of\nJacksonville, 508 U.S. 656, 666 (1993). That is, an equal protection injury\noccurs in “the inability to compete on an equal footing in the . . . process,”\nregardless of whether there was any loss of a substantive benefit. Id.\n Here, Russ’s alleged actions did not create any barrier for Johnson.\nAgain, the city council considered the petition and acted on it seven days after\nJohnson submitted it and before any of the signatures were certified. By the\ntime Johnson’s claims arrived at the district court, the City had processed the\npetition as completely as it could have within the necessary timeframes.\nJohnson did not encounter any barrier erected by Russ in the processing of the\npetition, and he does not have standing to bring his equal protection claim.\n ***\n 6\n\n Case: 17-50970 Document: 00515025687 Page: 7 Date Filed: 07/08/2019\n\n\n\n No. 17-50970\n In deciding the proper order to conclude our review, we are guided by the\nfact that even though this case was removed from state court, the only claims\nare under Section 1983 for violations of the United States Constitution. In a\nsimilar combination of a suit removed from state court that pursued only\nfederal claims for which the plaintiff had no standing, we affirmed dismissal\nof the action and did not consider a remand to state court. Williams v. Parker,\n843 F.3d 617, 623 (5th Cir. 2016). Nothing in the current case suggests a\ndifferent order.\n The district court’s decision is VACATED and the case is DISMISSED.\n\n\n\n\n 7\n\n Case: 17-50970 Document: 00515025687 Page: 8 Date Filed: 07/08/2019\n\n\n\n No. 17-50970\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: CITY OF HEARNE, TEXAS, Plaintiff v. Milton JOHNSON, Defendant-Cross Claimant-Appellee v. Bryan F. Russ, Jr., Cross Defendant-Appellant\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-08\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-50970 Document: 00515025687 Page: 1 Date Filed: 07/08/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 17-50970 FILED\\n July 8, 2019\\n Lyle W. Cayce\\nCITY OF HEARNE, TEXAS Clerk\\n\\n Plaintiff\\nv.\\n\\nMILTON JOHNSON,\\n\\n Defendant-Cross Claimant - Appellee\\nv.\\n\\nBRYAN F. RUSS, JR.,\\n\\n Cross Defendant - Appellant\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore DENNIS, OWEN, and SOUTHWICK, Circuit Judges.\\nLESLIE H. SOUTHWICK, Circuit Judge:\\n This is an appeal from the denial of qualified immunity to a city attorney\\nin a Section 1983 suit. We conclude the plaintiff does not have standing to\\npursue the claim in federal court. We therefore VACATE and DISMISS.\\n FACTUAL AND PROCEDURAL BACKGROUND\\n Organizers in Hearne, Texas circulated an initiative petition to force a\\nforensic audit of the city’s finances. Under the City’s charter, a petition, after\\nbeing signed by a required number of voters, is submitted to the City. At that\\npoint, a designated City administrator has fifteen days to transmit the petition\\n\\n Case: 17-50970 Document: 00515025687 Page: 2 Date Filed: 07/08/2019\\n\\n\\n\\n No. 17-50970\\nto the city council. Within ten days of receiving the petition, the city council\\nmay adopt the measure the petition demands or send it to an election. Milton\\nJohnson, an organizer of the petition here, submitted the petition to the City’s\\nclerk in March 2016. Johnson alleges the City’s policy was to have the clerk\\nforward petitions to the county elections administrator for verification of the\\nrequired signatures. Here, though, he claims the city attorney Bryan Russ\\nobtained the signature pages to prevent their delivery to the county elections\\nadministrator in an effort to keep the initiative from appearing on a ballot.\\n While Russ was allegedly preventing the signatures’ certification and\\nbefore any of them were certified, the city council considered Johnson’s petition\\nand voted to challenge its validity. That challenge came in the form of a\\nlawsuit against Johnson in Texas state court on grounds having nothing to do\\nwith the signature requirement. By the end of April 2016, all of the signatures\\nwere delivered for certification.\\n Along with his answer to the City’s suit, Johnson filed a third-party\\ncomplaint against Russ and his law firm under 42 U.S.C. § 1983. Russ\\nremoved the suit to federal court in July 2016, relying on the right to remove\\nwhen federal and state law claims are joined. See 28 U.S.C. § 1441(c). The\\nCity and Johnson subsequently settled their dispute. Johnson’s claims against\\nthe law firm were dismissed for failure to state a claim. See FED. R. CIV. P.\\n12(b)(6). The only surviving dispute is Johnson’s Section 1983 claim against\\nRuss. Russ moved for summary judgment based on qualified immunity, but\\nthe motion was denied. He appealed.\\n DISCUSSION\\n Johnson alleges that Russ violated his “First Amendment right to\\npetition for redress of grievances as well as his Fourteenth Amendment right\\nto equal protection.” We decline to reach the merits of Russ’s qualified\\n\\n\\n 2\\n\\n Case: 17-50970 Document: 00515025687 Page: 3 Date Filed: 07/08/2019\\n\\n\\n\\n No. 17-50970\\nimmunity defense to these arguments because Johnson lacks standing to\\nassert either. 1\\n Neither party has questioned our jurisdiction over this appeal, but “we\\nmust raise the issue of jurisdiction on our own motion if necessary.” Bernhard\\nv. Whitney Nat’l Bank, 523 F.3d 546, 550 (5th Cir. 2008). This includes a sua\\nsponte examination of the district court’s jurisdiction. See United States v.\\nCreamer Indus. Inc., 349 F.2d 625, 626 (5th Cir. 1965). Johnson as the party\\nasserting federal jurisdiction must show it exists, an obligation that applies\\neven when we sua sponte raise the question in the review of a summary\\njudgment determination. Ford v. NYLCare Health Plans of Gulf Coast, Inc.,\\n301 F.3d 329, 332–33 (5th Cir. 2002).\\n It is true that Johnson involuntarily arrived in the federal court because\\nthe defendant Russ removed the case from state court. Once in federal court,\\nthough, Johnson sought the court’s resolution of Section 1983 claims against\\nRuss. In order to have the court resolve those claims, it is Johnson’s burden to\\ndemonstrate we have jurisdiction. DaimlerChrysler Corp. v. Cuno, 547 U.S.\\n332, 339, 342 n.3 (2006).\\n The jurisdictional question is whether Johnson has standing. He “must\\nshow: (1) [he] has suffered, or imminently will suffer, a concrete and\\nparticularized injury-in-fact; (2) the injury is fairly traceable to [Russ’s]\\nconduct; and (3) a favorable judgment is likely to redress the injury.” Houston\\nChronicle Publ’g Co. v. City of League City, 488 F.3d 613, 617 (5th Cir. 2007).\\n\\n\\n\\n\\n 1 On appeal, Johnson also asserts a First Amendment retaliation claim and argues\\nRuss’s actions would chill behavior protected by the First Amendment. He did not present\\nthese arguments in his amended complaint, and he only made passing reference to retaliation\\nin opposition to Russ’s motion for summary judgment. Plaintiffs waive an argument when\\n“they fail[] to argue or brief it to the district court” and instead only make general reference\\nto it. Davidson v. Fairchild Controls Corp., 882 F.3d 180, 185 (5th Cir. 2018). Johnson has\\nwaived these arguments.\\n 3\\n\\n Case: 17-50970 Document: 00515025687 Page: 4 Date Filed: 07/08/2019\\n\\n\\n\\n No. 17-50970\\nMere allegations are insufficient to defeat a motion for summary judgment.\\nInstead, through an affidavit or other evidence, the opponent of the motion\\nmust offer “specific facts” that “will be taken to be true.” Lujan v. Defs. of\\nWildlife, 504 U.S. 555, 561 (1992) (citations omitted). In our ana;ysis of\\nstanding, we grant Johnson “all reasonable factual inferences” in deciding\\nwhether any “genuine issue of material fact exists.” Barrett Comput. Servs.,\\nInc. v. PDA, Inc., 884 F.2d 214, 219 (5th Cir. 1989).\\n We separately examine standing for Johnson’s two current claims.\\n\\n\\n I. First Amendment claim\\n The First Amendment prohibits Congress from “mak[ing a] law . . .\\nabridging . . . the right of the people . . . to petition the Government for a redress\\nof grievances.” U.S. CONST. amend. I. The requirements of the First\\nAmendment generally apply to the states through the Fourteenth Amendment.\\nMeyer v. Grant, 486 U.S. 414, 420 (1988). States are not required to grant their\\ncitizens a right to seek reform through popular initiatives, but if they do so,\\nthey must comply with the First Amendment’s protection of freedom of\\nexpression. John Doe 1 v. Reed, 561 U.S. 186, 195 (2010). The First\\nAmendment does not mandate a result once such petitions are received. See\\nMinnesota State Bd. For Cmty. Colls. v. Knight, 465 U.S. 271, 285 (1984).\\nJohnson claims Russ violated his right to petition because he “tried to keep the\\ninitiative off the ballot by keeping the city council from knowing the number of\\neligible signatures on the petition.” Under the City’s charter, the signature\\nrequirement is a preliminary step to the city council’s review of a petition.\\nOnce the city council reviews a petition, it can decide to send it to a ballot or\\nunilaterally approve the proposed measure.\\n The sort of harm Johnson alleges is a “procedural injury.” “[T]he\\nclaimed injury arises from an alleged failure on the part of the injury-causing\\n 4\\n\\n Case: 17-50970 Document: 00515025687 Page: 5 Date Filed: 07/08/2019\\n\\n\\n\\n No. 17-50970\\nparty to adhere to a prescribed process in adjudicating the petitioner’s\\nsubstantive rights, rather than from the substantive decision itself.” Spectrum\\nFive LLC v. FCC, 758 F.3d 254, 264 n.10 (D.C. Cir. 2014). These injuries occur\\nwhen a defendant “fails to follow a . . . procedure, . . . and this failure increases\\nthe risk of future harm.” Christopher T. Burt, Procedural Injury Standing\\nafter Lujan v. Defenders of Wildlife, 62 U. CHI. L. REV. 275, 276 (1995). This\\nsquares with Johnson’s claims because Russ’s alleged misdeeds do not\\nintrinsically injure Johnson. They only injure him to the extent they affect his\\nability to place the petition before the city council and ultimately place the\\nissue on a ballot.\\n It is not enough to create standing to claim that the process for handling\\nJohnson’s petition was not followed. A “deprivation of a procedural right\\nwithout some concrete interest that is affected by the deprivation — a\\nprocedural right in vacuo — is insufficient to create Article III standing.”\\nSummers v. Earth Island Inst., 555 U.S. 488, 496 (2009). Johnson stipulated\\nin district court that the city council considered the petition and voted to\\nchallenge it in a Texas state court only seven days after he submitted it.\\nFurther, the City’s challenge to the petition was unrelated to the signature\\nrequirement. Johnson attempts to make a fact dispute out of whether the\\nCity’s challenge was related to the signature requirement. The record,\\nhowever, contains the complaint filed in Texas state court. There is no factual\\ndoubt that the City’s challenge to the petition’s validity was on grounds\\nunrelated to the signature requirement. Johnson also stipulated all of the\\nsignatures were submitted in a timeframe sufficient to place the petition on a\\nballot before federal jurisdiction was invoked. See TEX. ELEC. CODE ANN. §§\\n3.005(c), 41.001(a) (detailing statutory deadlines for placing issues on a ballot).\\n Thus, even if Russ failed to follow some required procedure regarding\\nthe petition signatures, his alleged actions were not an injury “connected to [a]\\n 5\\n\\n Case: 17-50970 Document: 00515025687 Page: 6 Date Filed: 07/08/2019\\n\\n\\n\\n No. 17-50970\\nsubstantive result.” Massachusetts v. EPA, 549 U.S. 497, 518 (2007) (quoting\\nSugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 94–95 (D.C. Cir.\\n2002)). Because Johnson’s claimed procedural injury does not impact any\\nconcrete interest, he lacks standing to claim that Russ violated his First\\nAmendment right to petition.\\n\\n\\n II. Equal Protection claim\\n Johnson’s equal protection claim relies on a theory sometimes referred\\nto as a “class-of-one” claim. He argues Russ intentionally singled him out for\\ntreatment “different[] from others similarly situated” with “no rational basis\\nfor the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562,\\n564 (2000). Although Russ’s alleged treatment of the signatures is a\\nprocedural injury in the context of the First Amendment right to petition, it\\nmight also be an equal protection injury. A constitutional violation can occur\\nsimply with “the denial of equal treatment resulting from the imposition of [a]\\nbarrier [to a benefit], not the ultimate inability to obtain the benefit.”\\nNortheastern Fla. Chapter of Associated Gen. Contractors of Am. v. City of\\nJacksonville, 508 U.S. 656, 666 (1993). That is, an equal protection injury\\noccurs in “the inability to compete on an equal footing in the . . . process,”\\nregardless of whether there was any loss of a substantive benefit. Id.\\n Here, Russ’s alleged actions did not create any barrier for Johnson.\\nAgain, the city council considered the petition and acted on it seven days after\\nJohnson submitted it and before any of the signatures were certified. By the\\ntime Johnson’s claims arrived at the district court, the City had processed the\\npetition as completely as it could have within the necessary timeframes.\\nJohnson did not encounter any barrier erected by Russ in the processing of the\\npetition, and he does not have standing to bring his equal protection claim.\\n ***\\n 6\\n\\n Case: 17-50970 Document: 00515025687 Page: 7 Date Filed: 07/08/2019\\n\\n\\n\\n No. 17-50970\\n In deciding the proper order to conclude our review, we are guided by the\\nfact that even though this case was removed from state court, the only claims\\nare under Section 1983 for violations of the United States Constitution. In a\\nsimilar combination of a suit removed from state court that pursued only\\nfederal claims for which the plaintiff had no standing, we affirmed dismissal\\nof the action and did not consider a remand to state court. Williams v. Parker,\\n843 F.3d 617, 623 (5th Cir. 2016). Nothing in the current case suggests a\\ndifferent order.\\n The district court’s decision is VACATED and the case is DISMISSED.\\n\\n\\n\\n\\n 7\\n\\n Case: 17-50970 Document: 00515025687 Page: 8 Date Filed: 07/08/2019\\n\\n\\n\\n No. 17-50970\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2986,"cells":{"id":{"kind":"number","value":4637721,"string":"4,637,721"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee v. Bekir BULUC, Also Known as Celebi Buluc, Also Known as Bekir Celibi, Defendant - Appellant"},"name_abbreviation":{"kind":"string","value":"United States v. Bekir Buluc"},"decision_date":{"kind":"string","value":"2019-07-09"},"docket_number":{"kind":"string","value":"17-20694"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Clement, Duncan, Oldham\", \"parties\": \"\", \"opinions\": [{\"author\": \"STUART KYLE DUNCAN, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-20694 Document: 00515026218 Page: 1 Date Filed: 07/09/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 17-20694 July 9, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nBEKIR BULUC, also known as Celebi Buluc, also known as Bekir Celibi,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore CLEMENT, DUNCAN, and OLDHAM, Circuit Judges.\\nSTUART KYLE DUNCAN, Circuit Judge:\\n A jury convicted Turkish national Bekir Buluc under 8 U.S.C.\\n§ 1253(a)(1)(C) for “tak[ing] . . . action” that was “designed to prevent or\\nhamper” his removal from the United States. While immigration officers were\\nescorting Buluc onto a commercial flight to Turkey, Buluc announced he would\\nnot board the plane and vigorously resisted the officers’ attempts to carry him\\naboard. Airline personnel, witnessing the fracas, barred Buluc’s boarding. At\\ntrial, Buluc claimed that the subsection under which he was prosecuted\\nrequires “joint” action. Invoking the canons of construction ejusdem generis\\nand noscitur a sociis, Buluc argued that the meaning of “takes action” in\\n§ 1253(a)(1)(C) is colored by the nearby verbs “connives” and “conspires,” which\\n\\f Case: 17-20694 Document: 00515026218 Page: 2 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-20694\\nconnote joint action. Id. (penalizing an alien who “connives or conspires, or\\ntakes any other action, designed to prevent or hamper . . . [his] departure\\npursuant to [a final order of removal]”). Buluc therefore moved for acquittal\\nbecause there was no evidence that he acted with anyone else to prevent his\\nremoval. Buluc also objected on Confrontation Clause grounds to the officers’\\ntestimony that airline personnel denied him boarding after witnessing his\\ntantrum. The district court disagreed with Buluc on both points.\\n On appeal, Buluc again wheels out the statutory canons to cabin the\\nphrase “takes any other action” to joint action. We are unpersuaded. The\\nrelevant phrase—“connives or conspires, or takes any other action”—contains\\nnone of the contextual fuses that trigger those canons. Instead, the phrase’s\\nstructure conveys that “takes any other action” has independent meaning,\\nwhich easily encompasses Buluc’s solo efforts to thwart his removal. We also\\ndisagree with Buluc’s Confrontation Clause arguments. The officers’ testimony\\nthat airline personnel denied Buluc boarding did not implicate the\\nConfrontation Clause. Even if it did, any error was harmless. We affirm.\\n I.\\n Pursuant to a final order of removal, the United States attempted to\\ndeport Buluc via a commercial flight to Turkey on October 4, 2016. Since Buluc\\nhad “caused problems” during his four previous removals, Immigration and\\nCustoms Enforcement (“ICE”) arranged for extra help. Several ICE officers,\\nincluding Richard Rawls (“Officer Rawls”) and Michael Nugent (“Officer\\nNugent”), escorted Buluc to the Bush Intercontinental Airport in Houston,\\nTexas. En route, Buluc warned officers that he intended to resist. He told them:\\n“I am not going to get on that flight.” He also stated: “You can’t use force\\nputting me on a commercial flight. You are going to have to put me on a charter\\nflight because there you can use force.”\\n\\n\\n 2\\n\\f Case: 17-20694 Document: 00515026218 Page: 3 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-20694\\n To avoid a scene in the airport, ICE arranged for a Houston police officer\\nto meet them on the tarmac and board Buluc plane-side. But once they arrived,\\nBuluc refused to exit the vehicle, again stating that he did not want to go.\\nOfficers then pulled Buluc from the vehicle, put him on the ground, and\\nsearched him. Then they tried to carry a still-intransigent Buluc to the plane.\\nBuluc “remained rigid” until the officers approached the plane’s stairs. He then\\n“started kicking and physically resisting” and “violently pik[ing] and mov[ing]\\nabout to where it was difficult to continue to carry him,” and so the officers put\\nhim down.\\n In light of this commotion, Turkish Airlines refused to board Buluc. An\\nairline representative, Mr. Ozel, observed the “ruckus” and denied Buluc\\nboarding. After Buluc realized the airline would not permit him to board, he\\nstopped resisting and walked back to the vehicle. The officers then returned\\nhim to the detention center.\\n The government charged Buluc with preventing his departure under\\nSubsection (C) of 8 U.S.C. § 1253(a)(1) (“Subsection (C)”), which penalizes\\n“[a]ny alien” who “connives or conspires, or takes any other action, designed to\\nprevent or hamper or with the purpose of preventing or hampering the alien’s\\ndeparture pursuant to [a final order of removal].” Following the government’s\\ncase at trial, Buluc moved for a judgment of acquittal under Federal Rule of\\nCriminal Procedure 29. He argued that the trial evidence fatally varied the\\ncharges in the indictment, because Subsection (C) requires proof of a “joint act”\\nto prevent an alien’s departure, and the government had not proved that.\\nBuluc’s attorney argued, “You can’t conspire alone or with a government agent.\\nThe government must prove that he connived, conspired or took some other\\nsimilar action. And I don’t think they have proven any of that.” The district\\njudge denied the motion, however, reasoning that the pertinent statutory\\nterms—“connives or conspires, or takes any other action”—are phrased\\n 3\\n\\f Case: 17-20694 Document: 00515026218 Page: 4 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-20694\\ndisjunctively, and that the government had presented sufficient evidence that\\nBuluc “took action” to prevent his departure.\\n Buluc also challenged on Confrontation Clause grounds statements\\nintroduced by the prosecution that Buluc was denied boarding by the airline\\nrepresentative. Buluc objected to the prosecutor’s opening statement that the\\njury would hear about the airline’s refusal to let Buluc board because “[t]hat’s\\nnot what they want the customers to see.” Buluc also objected to testimony\\nfrom Officers Rawls and Nugent. Specifically, Rawls testified that the airline\\n“denied his boarding,” and Nugent similarly testified that “[w]e were denied\\nboarding.” Buluc timely objected on Confrontation Clause grounds, and the\\njudge permitted Buluc to enter an ongoing objection. Ultimately, the court\\noverruled Buluc’s objections, concluding the officers had testified about\\n“whether or not they were allowed to put him on the airplane,” and not “what\\nwas said” by the airline representative.\\n Buluc rested without presenting a case. The jury found him guilty, and\\nthe judge sentenced him to 46 months imprisonment and one year supervised\\nrelease. Buluc now appeals the district court’s denial of his acquittal motion\\nand its Confrontation Clause ruling.\\n II.\\n We review de novo a district court’s denial of a motion for judgment of\\nacquittal under Rule 29. United States v. Campbell, 52 F.3d 521, 522 (5th Cir.\\n1995) (per curiam). In doing so, we ask “whether a reasonable jury could\\nconclude that the evidence presented, viewed in the light most favorable to the\\ngovernment, established the defendant’s guilt beyond a reasonable doubt.”\\nUnited States v. Duncan, 164 F.3d 239, 242 (5th Cir. 1999). The district court’s\\ndecision on the motion is accorded no deference. Id. Additionally, whether\\nintroduction of testimony violated the Confrontation Clause is reviewed de\\nnovo, “subject to a harmless error analysis.” United States v. Polidore, 690 F.3d\\n 4\\n\\f Case: 17-20694 Document: 00515026218 Page: 5 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-20694\\n705, 710 (5th Cir. 2012). “Harmless error means that there is [no] reasonable\\npossibility that the evidence complained of might have contributed to the\\nconviction.” United States v. Kizzee, 877 F.3d 650, 661 (5th Cir. 2017)\\n(alteration in original) (internal quotation marks omitted).\\n III.\\n A.\\n Appealing the denial of his acquittal motion, Buluc argues the district\\ncourt misconstrued 8 U.S.C. § 1253(a)(1)(C) by failing to recognize that it\\nrequires “joint action.” In several unpublished opinions, we have affirmed the\\nevidentiary sufficiency of convictions under Subsection (C) that do not involve\\njoint action, albeit without addressing the interpretive arguments Buluc\\nraises. 1 We now make explicit what was implicit in those non-precedential\\ndecisions: A defendant may be convicted of “taking . . . action” to “prevent or\\nhamper” his deportation under Subsection (C) without any proof that he acted\\nin concert with someone else.\\n Subsection (C) appears within this broader context:\\n\\n\\n\\n\\n 1 See United States v. Ngay, 708 F. App’x 192, 193 (5th Cir. 2018) (per curiam)\\n(affirming Subsection (C) conviction where alien being deported “unequivocally declared to\\nthe deportation officer . . . that he would not go[,]” “physically resisted the deportation officers’\\nefforts” to take him through security “by stiffening his legs to avoid moving forward” and by\\n“jerking his arms and thrashing about to escape the officers’ hold”); United States v.\\nNzamubereka, 666 F. App’x 327, 327–28 (5th Cir. 2016) (per curiam) (affirming where\\ndefendant “refused to sign a transit visa application necessary to remove him to Rwanda”);\\nUnited States v. Sat, 572 F. App’x 278, 279 (5th Cir. 2014) (per curiam) (affirming where\\ndefendant “refus[ed] . . . to board a flight to India” on designated departure date); United\\nStates v. Diallo, 569 F. App’x 221, 222 (5th Cir. 2014) (per curiam) (finding defendant\\n“connived or took other actions designed to prevent or hamper . . . his removal” by “becoming\\ndisruptive and physically resisting the immigration enforcement agents when they\\nattempted to escort him onto commercial flights bound for the Central African Republic”).\\n\\n 5\\n\\f Case: 17-20694 Document: 00515026218 Page: 6 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-20694\\n (a) Penalty for failure to depart\\n (1) In general\\n Any alien against whom a final order of removal is outstanding\\n by reason of being a member of any of the classes described in\\n section 1227(a) of this title, who—\\n (A) willfully fails or refuses to depart from the United States\\n within a period of 90 days from the date of the final order\\n of removal under administrative processes, or if judicial\\n review is had, then from the date of the final order of the\\n court,\\n (B) willfully fails or refuses to make timely application in\\n good faith for travel or other documents necessary to the\\n alien’s departure,\\n (C) connives or conspires, or takes any other action, designed to\\n prevent or hamper or with the purpose of preventing or\\n hampering the alien’s departure pursuant to such, or\\n (D) willfully fails or refuses to present himself or herself for\\n removal at the time and place required by the Attorney\\n General pursuant to such order,\\n shall be fined under Title 18, or imprisoned not more than four\\n years (or 10 years if the alien is a member of any of the classes\\n described in paragraph (1)(E), (2), (3), or (4) of section 1227(a)\\n of this title), or both.\\n\\n8 U.S.C. § 1253(a)(1) (emphasis added). On appeal, Buluc argues that the\\ndistrict court failed to apply two canons of construction—ejusdem generis and\\nnoscitur a sociis—to the Subsection (C) phrase “takes any other action.” Buluc\\nmaintains the phrase must be limited by the nearby verbs “connives or\\nconspires” to require joint or concerted action with another. Because there was\\nno such evidence—the evidence shows Buluc acted alone—Buluc asserts the\\ndistrict court erred by denying his acquittal motion. For its part, the district\\ncourt disagreed that Subsection (C) requires a joint act. “It seems to me[,]” the\\ncourt stated, “the way I read the statute is that he either connived or conspired\\nor took any other action. Those are disjunctive, and so I think that [Buluc] took\\n 6\\n\\f Case: 17-20694 Document: 00515026218 Page: 7 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-20694\\naction to prevent his deportation.” The government relies on the district court’s\\nreasoning on appeal. We agree with the district court and the government that\\nthe cited canons do not require Buluc’s “joint-action” interpretation of “takes\\nany other action.”\\n First, the contextual canon ejusdem generis does not help Buluc.\\nEjusdem generis (“of the same kind”) describes the “principle that ‘when a\\ngeneral term follows a specific one, the general term should be understood as\\na reference to subjects akin to the one with specific enumeration.’” Ali v. Fed.\\nBureau of Prisons, 552 U.S. 214, 223 (2008) (quoting Norfolk & W. R. Co. v.\\nTrain Dispatchers, 499 U.S. 117, 129 (1991)) 2; see also generally ANTONIN\\nSCALIA & BRYAN GARNER, READING LAW: THE INTERPRETATION OF LEGAL\\nTEXTS (2012), 199 (“SCALIA & GARNER”) (ejusdem generis signifies “[w]here\\ngeneral words follow an enumeration of two or more things, they apply only to\\npersons or things of the same general kind or class specifically mentioned”).\\nBuluc argues this canon limits the general phrase “takes any other action” to\\njointly undertaken acts because it follows the specific terms “connives or\\nconspires,” both of which require joint actions. See BLACK’S LAW DICTIONARY\\nat 375 (10th ed. 2014) (defining “conspiracy” as an “agreement by two or more\\npersons to commit an unlawful act”); id. at 366 (defining “connive” as\\n“knowingly overlook[ing] another’s wrongdoing”). We disagree.\\n\\n\\n\\n\\n 2 See also, e.g., Reed v. Taylor, 923 F.3d 411, 416 (5th Cir. 2019) (quoting Circuit City\\nStores, Inc. v. Adams, 532 U.S. 105, 114–15 (2001) & 2A N. SINGER, SUTHERLAND ON\\nSTATUTES AND STATUTORY CONSTRUCTION § 47.17 (1991)) (“[T]he ejusdem generis canon”\\nmeans “‘[w]here general words follow specific words in a statutory enumeration, the general\\nwords are construed to embrace only objects similar in nature to those objects enumerated\\nby the preceding specific words’”); United States v. Kaluza, 780 F.3d 647, 660–61 (5th Cir.\\n2015) (quoting Garcia v. United States, 469 U.S. 70, 74 (1984)) (explaining “[u]nder the\\nprinciple of ejusdem generis, ‘where general words follow an enumeration of specific terms,\\nthe general words are read to apply only to other items like those specifically enumerated’”).\\n 7\\n\\f Case: 17-20694 Document: 00515026218 Page: 8 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-20694\\n Subsection (C) lacks the basic premise for applying ejusdem generis—a\\nlist of specific terms followed by a catchall generic term or terms. See, e.g.,\\nCircuit City Stores, 532 U.S. at 114 (canon applies “[w]here general words\\nfollow specific words in a statutory enumeration”) (alteration in original); see\\nalso SCALIA & GARNER at 200 (charting canon’s application to “syntactic\\nconstructions that have particularized lists followed by a broad, generic\\nphrase” and collecting decisions). For example, in one decision the Supreme\\nCourt applied the canon to the list “execution, levy, attachment, garnishment,\\nor other legal process,” and concluded that the catchall “‘other legal process’\\nwas limited to legal processes of the same nature as the specific items listed.”\\nAli, 552 U.S. at 224 (discussing Wash. State Dep’t of Soc. and Health Servs. v.\\nGuardianship Estate of Keffeler, 537 U.S. 371, 375, 384–85 (2003)); see also\\nReed, 923 F.3d at 416 (discussing Keffeler’s application of ejusdem generis).\\nSimilarly, in another case the Supreme Court applied the canon to the\\nenumeration “contracts of employment of seamen, railroad employees, or any\\nother class of workers engaged in . . . commerce,” and concluded that the\\nresidual clause (“any other class of workers”) was limited “by reference to the\\nenumerated categories of workers which are recited just before it.” Circuit City\\nStores, 532 U.S. at 112, 114–15. Thus ejusdem generis relies on the “familiar\\nsemantic structure” in which an enumeration of specific terms imparts a\\nrestrictive meaning to a generic “follow-on phrase.” Reed, 923 F.3d at 416. That\\nsignature structure justifies the “inference embodied in ejusdem generis that\\nCongress remained focused on the common attribute [of the specific terms]\\nwhen it used the catchall phrase.” Ali, 552 U.S. at 225.\\n Subsection (C) is not structured that way. To the contrary, it has a\\ndistinct structure that repels application of ejusdem generis. As the Supreme\\nCourt has explained, ejusdem generis does not apply when the relevant\\n“phrase is disjunctive, with one specific and one general category, not . . . a list\\n 8\\n\\f Case: 17-20694 Document: 00515026218 Page: 9 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-20694\\nof specific items separated by commas and followed by a general or collective\\nterm.” Id. Thus, in Ali the Supreme Court declined to apply the canon to the\\nphrase “any officer of customs or excise or any other law enforcement officer.”\\nId. The phrase did not present the ejusdem generis trademark of a list of\\nspecifics followed by a “‘general or collective term.’” Id. (quoting United States\\nv. Aguilar, 515 U.S. 593, 615 (1995) (Scalia, J., concurring in part and\\ndissenting in part)). Instead, it featured the “disjunctive” pairing of “one\\nspecific [category]” (“any officer of customs or excise”) and “one general\\ncategory” (“any other law enforcement officer”).\\n So too here. The verbs in Subsection (C)—“connives or conspires, or\\ntakes any other action”—are not structured grammatically as a list of specifics\\nfollowed by a generic catchall. See, e.g., SCALIA & GARNER at 197 (explaining\\nthat a list is “usually a parallel series of nouns and noun phrases, or verbs and\\nverb phrases”). Instead, the subsection disjunctively places one category of\\nverbs (“connives or conspires”) alongside a second category (“takes any other\\naction”). Like the three nouns in Ali, the verbs’ grouping as distinct categories\\nsignals contextually that they have independent meaning. 3 The punctuation\\nof Subsection (C) underscores this point: “connives or conspires” is cordoned\\noff from “takes any other action” by a conspicuous set of commas. See 8 U.S.C.\\n§ 1253(a)(1)(C) (penalizing an alien who, inter alia, “connives or conspires, or\\n\\n\\n\\n 3 See, e.g., United States v. Turkette, 452 U.S. 576, 582 (1981) (determining ejusdem\\ngeneris inapplicable where a statute listed two categories, one of which was not “merely a\\nmore general description of the first”); United States v. EME Homer City Generation, L.P.,\\n727 F.3d 274, 293 (3rd Cir. 2013) (citing Ali, 552 U.S. at 226; Watt v. W. Nuclear, Inc., 462\\nU.S. 36, 44 n.5 (1983) (explaining that “[s]ome statutes use a general phrase not as a residual\\ncategory intended to be a more general description of the preceding terms, but instead use\\neach of the terms, including the general phrase, as independent and unrelated statutory\\ncategories”)); cf. United States v. Lauderdale Cty., 914 F.3d 960, 967 (5th Cir. 2019)\\n(concluding that the clause “‘conduct by law enforcement officers or by officials or employees\\nof any governmental agency’ does not contain a string of terms; rather, it contains two\\nindependent clauses separated by a disjunctive ‘or’”).\\n 9\\n\\f Case: 17-20694 Document: 00515026218 Page: 10 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-20694\\ntakes any other action, designed to prevent or hamper” his removal) (emphasis\\nadded); see also, e.g., U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc.,\\n508 U.S. 439, 454 (1993) (observing that “the meaning of a statute will\\ntypically heed the commands of its punctuation”); United States v. Ron Pair\\nEnters., Inc., 489 U.S. 235, 241 (1989) (relying on “grammatical structure” to\\ninterpret a statute and reasoning that a phrase “set aside by commas . . .\\nstands independent of the language that follows”); SCALIA & GARNER at 161\\n(stating that “[n]o intelligent construction of a text can ignore its\\npunctuation”). Consequently, we conclude that the ejusdem generis canon fails\\nto support Buluc’s reading of Subsection (C).\\n Second, the related contextual canon noscitur a sociis also does not help\\nBuluc. Noscitur a sociis (“it is known by its associates”) applies “‘when a string\\nof statutory terms raises the implication that the words grouped in a list should\\nbe given related meaning.’” Lauderdale Cty., 914 F.3d at 967 (quoting S.D.\\nWarren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370, 378 (2006)); see SCALIA &\\nGARNER at 195 (quoting Third Nat’l Bank in Nashville v. Impac Ltd., 432 U.S.\\n312, 322 (1977)) (explaining the canon “especially holds that ‘words grouped in\\na list should be given related meanings’”). Here the operative phrase in\\nSubsection (C) lacks the “string of statutory terms” necessary to invoke the\\ncanon. For instance, in Lauderdale County, we declined to apply noscitur a\\nsociis to the phrase “conduct by law enforcement officers or by officials or\\nemployees of any governmental agency,” reasoning the phrase “does not\\ncontain a string of terms” but “rather . . . contains two independent clauses\\nseparated by a disjunctive ‘or.’” 914 F.3d at 967; see also, e.g., S.D. Warren Co.,\\n547 U.S. at 379–80 (explaining that “noscitur a sociis is no help absent some\\nsort of gathering with a common feature to extrapolate”); SCALIA & GARNER at\\n196 (explaining that “[f]or the associated-words canon to apply, the terms must\\nbe conjoined in such a way as to indicate that they have some quality in\\n 10\\n\\f Case: 17-20694 Document: 00515026218 Page: 11 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-20694\\ncommon”). That principle defeats application of the canon here: As we have\\nexplained, Subsection (C) features, not a list of verbs with common features,\\nbut two grammatically distinct categories of verbs (“connives or conspires” and\\n“takes any other action”) separated by a disjunctive. We therefore decline to\\napply noscitur a sociis to “takes any other action.” Doing so would unjustifiably\\n“rob” that broad phrase “of its independent and ordinary significance.” Graham\\nCty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 559 U.S. 280, 288\\n(2010) (quoting Rieter v. Sonotone Corp., 442 U.S. 330, 338–39 (1979) (internal\\nmarks omitted)).\\n In sum, we reject Buluc’s arguments that the cited canons limit the\\nSubsection (C) phrase “takes any other action” to “takes any other joint action.”\\nLeaving aside the fact that the contextual triggers for those canons are absent,\\ndeploying the canons as Buluc suggests would “render [the] general words [of\\nSubsection (C)] meaningless.” Kaluza, 780 F.3d at 661 (quoting Christopher v.\\nSmithKline Beecham Corp., 567 U.S. 142, 163 (2012)). Nothing in the text or\\nsurrounding context of Subsection (C) suggests that Congress meant to limit\\nthe phrase “takes any other action” to actions taken in concert with others.\\nCongress could have easily enacted a different text conveying that meaning—\\nfor instance, “connives or conspires, or takes any other joint action” or\\n“connives or conspires, or takes any other similar action.” Instead Congress\\nchose the broad, unqualified phrase—“takes any other action”—and fenced it\\noff from nearby verbs by commas. We must give effect to that choice. See, e.g.,\\nAli, 552 U.S. at 227–28 (declining to deploy canons to limit “the unmodified,\\nall-encompassing phrase ‘any other law enforcement officer,’” where Congress\\n\\n\\n\\n\\n 11\\n\\f Case: 17-20694 Document: 00515026218 Page: 12 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-20694\\n“easily could have written” a narrower phrase); see also SCALIA & GARNER at\\n59 (“No canon of interpretation is absolute.”). 4\\n We therefore hold that the phrase “takes any other action” in 8 U.S.C.\\n§ 1253(a)(1)(C) is not limited to acts requiring joint or concerted action by the\\ndefendant. Because a reasonable jury could conclude that the government’s\\nevidence established Buluc’s guilt under Subsection (C) beyond a reasonable\\ndoubt, we affirm the denial of Buluc’s motion for judgment of acquittal.\\n B.\\n Buluc next argues certain evidentiary rulings of the district court\\nviolated the Confrontation Clause. That clause bars “admission of testimonial\\nstatements of a witness who did not appear at trial unless he was unavailable\\nto testify, and the defendant . . . had a prior opportunity for cross-\\nexamination.” Crawford v. Washington, 541 U.S. 36, 53–54 (2004); U.S. CONST.\\namend. VI. Specifically, Buluc challenges the prosecution’s opening statement\\nand two officers’ testimony about Turkish Airline representative Ozel’s refusal\\nto allow Buluc on the plane. During his opening statement, the prosecutor told\\nthe jury it would hear officers’ testimony that Ozel refused to board Buluc.\\nOfficers Rawls and Nugent subsequently testified that Ozel denied Buluc\\npermission to board. Rawls testified Ozel “denied his boarding.” Nugent\\nsimilarly testified, “We were denied boarding,” and observed he was “pretty\\n\\n\\n\\n 4 In his reply brief, Buluc also argues this reading of Subsection (C) renders\\nsuperfluous Subsection (A), which penalizes an alien who “willfully fails or refuses to depart\\nfrom the United States within a period of 90 days[.]” 8 U.S.C. § 1253(a)(1)(A); see, e.g.,\\nHoward Hughes Co., L.L.C. v. Comm’r, 805 F.3d 175, 183 (5th Cir. 2015) (discussing “the rule\\nagainst superfluities, [which] instructs courts to interpret a statute to effectuate all its\\nprovisions, so that no part is rendered superfluous”) (alteration in original) (quoting Hibbs v.\\nWinn, 542 U.S. 88, 89 (2004)). “By failing to raise this argument until [his] reply brief, [Buluc]\\nha[s] waived it.” Unida v. Levi Strauss & Co., 986 F.2d 970, 976, n.4 (5th Cir. 1993). In any\\nevent, Buluc is wrong. Subsection (A) accounts for different conduct than Subsection (C): It\\npenalizes an alien for willfully failing to leave the United States within a specific time period\\n(90 days) after being ordered to do so.\\n 12\\n\\f Case: 17-20694 Document: 00515026218 Page: 13 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-20694\\ncertain” Buluc heard Ozel’s denial. Buluc argues these were Confrontation\\nClause violations because the officers referred to Ozel’s out-of-court statement\\nto prove that Buluc was denied boarding and because Buluc had no opportunity\\nto cross-examine Ozel. The district court overruled Buluc’s objections, finding\\nthe officers’ testimony did not implicate the Confrontation Clause. We agree.\\n The admission of an out-of-court statement triggers the Confrontation\\nClause only if the statement was “testimonial,” meaning its “‘primary purpose’\\n. . . was to ‘creat[e] an out-of-court substitute for trial testimony.’” Ohio v.\\nClark, 135 S. Ct. 2173, 2180 (2015) (quoting Michigan v. Bryant, 562 U.S. 344,\\n358 (2011)) (alteration in original). Even assuming the officers’ testimony\\nreferenced Ozel’s statement 5 denying Buluc boarding, that statement was not\\n“testimonial” for Confrontation Clause purposes. Ozel’s statement was made,\\nnot in response to police questioning, but instead during the heated encounter\\ncaused by Buluc’s violent resistance to being boarded. Under those\\ncircumstances, we do not find the primary purpose of the statement was to\\ncreate evidence to incriminate Buluc at trial. See, e.g., id. (citing Bryant, 562\\nU.S. at 358) (statement was non-testimonial where “the circumstances\\nobjectively indicated that the conversation was primarily aimed at quelling an\\nongoing emergency, not establishing evidence for the prosecution”); United\\nStates v. Barker, 820 F.3d 167, 170 (5th Cir. 2016) (quoting Clark, 135 U.S. at\\n2180) (in discerning whether statement was non-testimonial, court examines\\n“factors such as ‘whether an ongoing emergency exists’ and ‘the informality of\\nthe situation and the interrogation’”). Ozel’s statement therefore fell outside\\nthe purview of the Confrontation Clause.\\n\\n\\n\\n\\n 5 That is a generous assumption. One may reasonably read the record, as the district\\ncourt did, to show that the officers testified only about “whether or not they were allowed to\\nput [Buluc] on the airplane,” and not about “what was said” by the airline representative.\\n 13\\n\\f Case: 17-20694 Document: 00515026218 Page: 14 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-20694\\n Alternatively, any error in admitting the officers’ testimony was\\nharmless beyond a reasonable doubt. United States v. Jimenez, 464 F.3d 555,\\n562 (5th Cir. 2006) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).\\nThe government meets that standard by showing there was “‘no reasonable\\npossibility that the tainted evidence might have contributed to the jury’s\\nverdict of guilty.’” United States v. Jones, __ F.3d __, 2019 WL 2754760, at *8\\n(5th Cir. July 2, 2019) (quoting Lowery v. Collins, 988 F.2d 1364, 1373 (5th Cir.\\n1993)). We see no reasonable possibility here. The testimony about Ozel’s\\nrefusal to board Buluc was unnecessary to prove Buluc acted to hamper his\\ndeparture under Subsection (C). See 8 U.S.C. § 1253(a)(1)(C) (requiring that\\ndefendant only “take . . . action” to “prevent or hamper” his departure).\\nMoreover, that testimony was tangential to the evidence establishing Buluc’s\\nguilt. The record reflects that Buluc candidly told the officers on the way to the\\nairport that he did not intend to get on the flight. Buluc refused to get out of\\nthe vehicle once they arrived at the airport. And Buluc vigorously resisted the\\nofficers’ attempts to board him, to the extent that the officers had to carry him\\nto the plane. Even indulging the assumption that the district court erroneously\\nadmitted testimony concerning the airline’s refusal to board Buluc, we discern\\nno reasonable possibility that it contributed to Buluc’s conviction.\\n AFFIRMED\\n\\n\\n\\n\\n 14\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4414974/\", \"author_raw\": \"STUART KYLE DUNCAN, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"CLEMENT"},"judge2":{"kind":"string","value":"DUNCAN"},"judge3":{"kind":"string","value":"OLDHAM"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4637721/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Bekir BULUC, Also Known as Celebi Buluc, Also Known as Bekir Celibi, Defendant - Appellant\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-09\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-20694 Document: 00515026218 Page: 1 Date Filed: 07/09/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 17-20694 July 9, 2019\n Lyle W. Cayce\nUNITED STATES OF AMERICA, Clerk\n\n\n Plaintiff - Appellee\n\nv.\n\nBEKIR BULUC, also known as Celebi Buluc, also known as Bekir Celibi,\n\n Defendant - Appellant\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore CLEMENT, DUNCAN, and OLDHAM, Circuit Judges.\nSTUART KYLE DUNCAN, Circuit Judge:\n A jury convicted Turkish national Bekir Buluc under 8 U.S.C.\n§ 1253(a)(1)(C) for “tak[ing] . . . action” that was “designed to prevent or\nhamper” his removal from the United States. While immigration officers were\nescorting Buluc onto a commercial flight to Turkey, Buluc announced he would\nnot board the plane and vigorously resisted the officers’ attempts to carry him\naboard. Airline personnel, witnessing the fracas, barred Buluc’s boarding. At\ntrial, Buluc claimed that the subsection under which he was prosecuted\nrequires “joint” action. Invoking the canons of construction ejusdem generis\nand noscitur a sociis, Buluc argued that the meaning of “takes action” in\n§ 1253(a)(1)(C) is colored by the nearby verbs “connives” and “conspires,” which\n\f Case: 17-20694 Document: 00515026218 Page: 2 Date Filed: 07/09/2019\n\n\n\n No. 17-20694\nconnote joint action. Id. (penalizing an alien who “connives or conspires, or\ntakes any other action, designed to prevent or hamper . . . [his] departure\npursuant to [a final order of removal]”). Buluc therefore moved for acquittal\nbecause there was no evidence that he acted with anyone else to prevent his\nremoval. Buluc also objected on Confrontation Clause grounds to the officers’\ntestimony that airline personnel denied him boarding after witnessing his\ntantrum. The district court disagreed with Buluc on both points.\n On appeal, Buluc again wheels out the statutory canons to cabin the\nphrase “takes any other action” to joint action. We are unpersuaded. The\nrelevant phrase—“connives or conspires, or takes any other action”—contains\nnone of the contextual fuses that trigger those canons. Instead, the phrase’s\nstructure conveys that “takes any other action” has independent meaning,\nwhich easily encompasses Buluc’s solo efforts to thwart his removal. We also\ndisagree with Buluc’s Confrontation Clause arguments. The officers’ testimony\nthat airline personnel denied Buluc boarding did not implicate the\nConfrontation Clause. Even if it did, any error was harmless. We affirm.\n I.\n Pursuant to a final order of removal, the United States attempted to\ndeport Buluc via a commercial flight to Turkey on October 4, 2016. Since Buluc\nhad “caused problems” during his four previous removals, Immigration and\nCustoms Enforcement (“ICE”) arranged for extra help. Several ICE officers,\nincluding Richard Rawls (“Officer Rawls”) and Michael Nugent (“Officer\nNugent”), escorted Buluc to the Bush Intercontinental Airport in Houston,\nTexas. En route, Buluc warned officers that he intended to resist. He told them:\n“I am not going to get on that flight.” He also stated: “You can’t use force\nputting me on a commercial flight. You are going to have to put me on a charter\nflight because there you can use force.”\n\n\n 2\n\f Case: 17-20694 Document: 00515026218 Page: 3 Date Filed: 07/09/2019\n\n\n\n No. 17-20694\n To avoid a scene in the airport, ICE arranged for a Houston police officer\nto meet them on the tarmac and board Buluc plane-side. But once they arrived,\nBuluc refused to exit the vehicle, again stating that he did not want to go.\nOfficers then pulled Buluc from the vehicle, put him on the ground, and\nsearched him. Then they tried to carry a still-intransigent Buluc to the plane.\nBuluc “remained rigid” until the officers approached the plane’s stairs. He then\n“started kicking and physically resisting” and “violently pik[ing] and mov[ing]\nabout to where it was difficult to continue to carry him,” and so the officers put\nhim down.\n In light of this commotion, Turkish Airlines refused to board Buluc. An\nairline representative, Mr. Ozel, observed the “ruckus” and denied Buluc\nboarding. After Buluc realized the airline would not permit him to board, he\nstopped resisting and walked back to the vehicle. The officers then returned\nhim to the detention center.\n The government charged Buluc with preventing his departure under\nSubsection (C) of 8 U.S.C. § 1253(a)(1) (“Subsection (C)”), which penalizes\n“[a]ny alien” who “connives or conspires, or takes any other action, designed to\nprevent or hamper or with the purpose of preventing or hampering the alien’s\ndeparture pursuant to [a final order of removal].” Following the government’s\ncase at trial, Buluc moved for a judgment of acquittal under Federal Rule of\nCriminal Procedure 29. He argued that the trial evidence fatally varied the\ncharges in the indictment, because Subsection (C) requires proof of a “joint act”\nto prevent an alien’s departure, and the government had not proved that.\nBuluc’s attorney argued, “You can’t conspire alone or with a government agent.\nThe government must prove that he connived, conspired or took some other\nsimilar action. And I don’t think they have proven any of that.” The district\njudge denied the motion, however, reasoning that the pertinent statutory\nterms—“connives or conspires, or takes any other action”—are phrased\n 3\n\f Case: 17-20694 Document: 00515026218 Page: 4 Date Filed: 07/09/2019\n\n\n\n No. 17-20694\ndisjunctively, and that the government had presented sufficient evidence that\nBuluc “took action” to prevent his departure.\n Buluc also challenged on Confrontation Clause grounds statements\nintroduced by the prosecution that Buluc was denied boarding by the airline\nrepresentative. Buluc objected to the prosecutor’s opening statement that the\njury would hear about the airline’s refusal to let Buluc board because “[t]hat’s\nnot what they want the customers to see.” Buluc also objected to testimony\nfrom Officers Rawls and Nugent. Specifically, Rawls testified that the airline\n“denied his boarding,” and Nugent similarly testified that “[w]e were denied\nboarding.” Buluc timely objected on Confrontation Clause grounds, and the\njudge permitted Buluc to enter an ongoing objection. Ultimately, the court\noverruled Buluc’s objections, concluding the officers had testified about\n“whether or not they were allowed to put him on the airplane,” and not “what\nwas said” by the airline representative.\n Buluc rested without presenting a case. The jury found him guilty, and\nthe judge sentenced him to 46 months imprisonment and one year supervised\nrelease. Buluc now appeals the district court’s denial of his acquittal motion\nand its Confrontation Clause ruling.\n II.\n We review de novo a district court’s denial of a motion for judgment of\nacquittal under Rule 29. United States v. Campbell, 52 F.3d 521, 522 (5th Cir.\n1995) (per curiam). In doing so, we ask “whether a reasonable jury could\nconclude that the evidence presented, viewed in the light most favorable to the\ngovernment, established the defendant’s guilt beyond a reasonable doubt.”\nUnited States v. Duncan, 164 F.3d 239, 242 (5th Cir. 1999). The district court’s\ndecision on the motion is accorded no deference. Id. Additionally, whether\nintroduction of testimony violated the Confrontation Clause is reviewed de\nnovo, “subject to a harmless error analysis.” United States v. Polidore, 690 F.3d\n 4\n\f Case: 17-20694 Document: 00515026218 Page: 5 Date Filed: 07/09/2019\n\n\n\n No. 17-20694\n705, 710 (5th Cir. 2012). “Harmless error means that there is [no] reasonable\npossibility that the evidence complained of might have contributed to the\nconviction.” United States v. Kizzee, 877 F.3d 650, 661 (5th Cir. 2017)\n(alteration in original) (internal quotation marks omitted).\n III.\n A.\n Appealing the denial of his acquittal motion, Buluc argues the district\ncourt misconstrued 8 U.S.C. § 1253(a)(1)(C) by failing to recognize that it\nrequires “joint action.” In several unpublished opinions, we have affirmed the\nevidentiary sufficiency of convictions under Subsection (C) that do not involve\njoint action, albeit without addressing the interpretive arguments Buluc\nraises. 1 We now make explicit what was implicit in those non-precedential\ndecisions: A defendant may be convicted of “taking . . . action” to “prevent or\nhamper” his deportation under Subsection (C) without any proof that he acted\nin concert with someone else.\n Subsection (C) appears within this broader context:\n\n\n\n\n 1 See United States v. Ngay, 708 F. App’x 192, 193 (5th Cir. 2018) (per curiam)\n(affirming Subsection (C) conviction where alien being deported “unequivocally declared to\nthe deportation officer . . . that he would not go[,]” “physically resisted the deportation officers’\nefforts” to take him through security “by stiffening his legs to avoid moving forward” and by\n“jerking his arms and thrashing about to escape the officers’ hold”); United States v.\nNzamubereka, 666 F. App’x 327, 327–28 (5th Cir. 2016) (per curiam) (affirming where\ndefendant “refused to sign a transit visa application necessary to remove him to Rwanda”);\nUnited States v. Sat, 572 F. App’x 278, 279 (5th Cir. 2014) (per curiam) (affirming where\ndefendant “refus[ed] . . . to board a flight to India” on designated departure date); United\nStates v. Diallo, 569 F. App’x 221, 222 (5th Cir. 2014) (per curiam) (finding defendant\n“connived or took other actions designed to prevent or hamper . . . his removal” by “becoming\ndisruptive and physically resisting the immigration enforcement agents when they\nattempted to escort him onto commercial flights bound for the Central African Republic”).\n\n 5\n\f Case: 17-20694 Document: 00515026218 Page: 6 Date Filed: 07/09/2019\n\n\n\n No. 17-20694\n (a) Penalty for failure to depart\n (1) In general\n Any alien against whom a final order of removal is outstanding\n by reason of being a member of any of the classes described in\n section 1227(a) of this title, who—\n (A) willfully fails or refuses to depart from the United States\n within a period of 90 days from the date of the final order\n of removal under administrative processes, or if judicial\n review is had, then from the date of the final order of the\n court,\n (B) willfully fails or refuses to make timely application in\n good faith for travel or other documents necessary to the\n alien’s departure,\n (C) connives or conspires, or takes any other action, designed to\n prevent or hamper or with the purpose of preventing or\n hampering the alien’s departure pursuant to such, or\n (D) willfully fails or refuses to present himself or herself for\n removal at the time and place required by the Attorney\n General pursuant to such order,\n shall be fined under Title 18, or imprisoned not more than four\n years (or 10 years if the alien is a member of any of the classes\n described in paragraph (1)(E), (2), (3), or (4) of section 1227(a)\n of this title), or both.\n\n8 U.S.C. § 1253(a)(1) (emphasis added). On appeal, Buluc argues that the\ndistrict court failed to apply two canons of construction—ejusdem generis and\nnoscitur a sociis—to the Subsection (C) phrase “takes any other action.” Buluc\nmaintains the phrase must be limited by the nearby verbs “connives or\nconspires” to require joint or concerted action with another. Because there was\nno such evidence—the evidence shows Buluc acted alone—Buluc asserts the\ndistrict court erred by denying his acquittal motion. For its part, the district\ncourt disagreed that Subsection (C) requires a joint act. “It seems to me[,]” the\ncourt stated, “the way I read the statute is that he either connived or conspired\nor took any other action. Those are disjunctive, and so I think that [Buluc] took\n 6\n\f Case: 17-20694 Document: 00515026218 Page: 7 Date Filed: 07/09/2019\n\n\n\n No. 17-20694\naction to prevent his deportation.” The government relies on the district court’s\nreasoning on appeal. We agree with the district court and the government that\nthe cited canons do not require Buluc’s “joint-action” interpretation of “takes\nany other action.”\n First, the contextual canon ejusdem generis does not help Buluc.\nEjusdem generis (“of the same kind”) describes the “principle that ‘when a\ngeneral term follows a specific one, the general term should be understood as\na reference to subjects akin to the one with specific enumeration.’” Ali v. Fed.\nBureau of Prisons, 552 U.S. 214, 223 (2008) (quoting Norfolk & W. R. Co. v.\nTrain Dispatchers, 499 U.S. 117, 129 (1991)) 2; see also generally ANTONIN\nSCALIA & BRYAN GARNER, READING LAW: THE INTERPRETATION OF LEGAL\nTEXTS (2012), 199 (“SCALIA & GARNER”) (ejusdem generis signifies “[w]here\ngeneral words follow an enumeration of two or more things, they apply only to\npersons or things of the same general kind or class specifically mentioned”).\nBuluc argues this canon limits the general phrase “takes any other action” to\njointly undertaken acts because it follows the specific terms “connives or\nconspires,” both of which require joint actions. See BLACK’S LAW DICTIONARY\nat 375 (10th ed. 2014) (defining “conspiracy” as an “agreement by two or more\npersons to commit an unlawful act”); id. at 366 (defining “connive” as\n“knowingly overlook[ing] another’s wrongdoing”). We disagree.\n\n\n\n\n 2 See also, e.g., Reed v. Taylor, 923 F.3d 411, 416 (5th Cir. 2019) (quoting Circuit City\nStores, Inc. v. Adams, 532 U.S. 105, 114–15 (2001) & 2A N. SINGER, SUTHERLAND ON\nSTATUTES AND STATUTORY CONSTRUCTION § 47.17 (1991)) (“[T]he ejusdem generis canon”\nmeans “‘[w]here general words follow specific words in a statutory enumeration, the general\nwords are construed to embrace only objects similar in nature to those objects enumerated\nby the preceding specific words’”); United States v. Kaluza, 780 F.3d 647, 660–61 (5th Cir.\n2015) (quoting Garcia v. United States, 469 U.S. 70, 74 (1984)) (explaining “[u]nder the\nprinciple of ejusdem generis, ‘where general words follow an enumeration of specific terms,\nthe general words are read to apply only to other items like those specifically enumerated’”).\n 7\n\f Case: 17-20694 Document: 00515026218 Page: 8 Date Filed: 07/09/2019\n\n\n\n No. 17-20694\n Subsection (C) lacks the basic premise for applying ejusdem generis—a\nlist of specific terms followed by a catchall generic term or terms. See, e.g.,\nCircuit City Stores, 532 U.S. at 114 (canon applies “[w]here general words\nfollow specific words in a statutory enumeration”) (alteration in original); see\nalso SCALIA & GARNER at 200 (charting canon’s application to “syntactic\nconstructions that have particularized lists followed by a broad, generic\nphrase” and collecting decisions). For example, in one decision the Supreme\nCourt applied the canon to the list “execution, levy, attachment, garnishment,\nor other legal process,” and concluded that the catchall “‘other legal process’\nwas limited to legal processes of the same nature as the specific items listed.”\nAli, 552 U.S. at 224 (discussing Wash. State Dep’t of Soc. and Health Servs. v.\nGuardianship Estate of Keffeler, 537 U.S. 371, 375, 384–85 (2003)); see also\nReed, 923 F.3d at 416 (discussing Keffeler’s application of ejusdem generis).\nSimilarly, in another case the Supreme Court applied the canon to the\nenumeration “contracts of employment of seamen, railroad employees, or any\nother class of workers engaged in . . . commerce,” and concluded that the\nresidual clause (“any other class of workers”) was limited “by reference to the\nenumerated categories of workers which are recited just before it.” Circuit City\nStores, 532 U.S. at 112, 114–15. Thus ejusdem generis relies on the “familiar\nsemantic structure” in which an enumeration of specific terms imparts a\nrestrictive meaning to a generic “follow-on phrase.” Reed, 923 F.3d at 416. That\nsignature structure justifies the “inference embodied in ejusdem generis that\nCongress remained focused on the common attribute [of the specific terms]\nwhen it used the catchall phrase.” Ali, 552 U.S. at 225.\n Subsection (C) is not structured that way. To the contrary, it has a\ndistinct structure that repels application of ejusdem generis. As the Supreme\nCourt has explained, ejusdem generis does not apply when the relevant\n“phrase is disjunctive, with one specific and one general category, not . . . a list\n 8\n\f Case: 17-20694 Document: 00515026218 Page: 9 Date Filed: 07/09/2019\n\n\n\n No. 17-20694\nof specific items separated by commas and followed by a general or collective\nterm.” Id. Thus, in Ali the Supreme Court declined to apply the canon to the\nphrase “any officer of customs or excise or any other law enforcement officer.”\nId. The phrase did not present the ejusdem generis trademark of a list of\nspecifics followed by a “‘general or collective term.’” Id. (quoting United States\nv. Aguilar, 515 U.S. 593, 615 (1995) (Scalia, J., concurring in part and\ndissenting in part)). Instead, it featured the “disjunctive” pairing of “one\nspecific [category]” (“any officer of customs or excise”) and “one general\ncategory” (“any other law enforcement officer”).\n So too here. The verbs in Subsection (C)—“connives or conspires, or\ntakes any other action”—are not structured grammatically as a list of specifics\nfollowed by a generic catchall. See, e.g., SCALIA & GARNER at 197 (explaining\nthat a list is “usually a parallel series of nouns and noun phrases, or verbs and\nverb phrases”). Instead, the subsection disjunctively places one category of\nverbs (“connives or conspires”) alongside a second category (“takes any other\naction”). Like the three nouns in Ali, the verbs’ grouping as distinct categories\nsignals contextually that they have independent meaning. 3 The punctuation\nof Subsection (C) underscores this point: “connives or conspires” is cordoned\noff from “takes any other action” by a conspicuous set of commas. See 8 U.S.C.\n§ 1253(a)(1)(C) (penalizing an alien who, inter alia, “connives or conspires, or\n\n\n\n 3 See, e.g., United States v. Turkette, 452 U.S. 576, 582 (1981) (determining ejusdem\ngeneris inapplicable where a statute listed two categories, one of which was not “merely a\nmore general description of the first”); United States v. EME Homer City Generation, L.P.,\n727 F.3d 274, 293 (3rd Cir. 2013) (citing Ali, 552 U.S. at 226; Watt v. W. Nuclear, Inc., 462\nU.S. 36, 44 n.5 (1983) (explaining that “[s]ome statutes use a general phrase not as a residual\ncategory intended to be a more general description of the preceding terms, but instead use\neach of the terms, including the general phrase, as independent and unrelated statutory\ncategories”)); cf. United States v. Lauderdale Cty., 914 F.3d 960, 967 (5th Cir. 2019)\n(concluding that the clause “‘conduct by law enforcement officers or by officials or employees\nof any governmental agency’ does not contain a string of terms; rather, it contains two\nindependent clauses separated by a disjunctive ‘or’”).\n 9\n\f Case: 17-20694 Document: 00515026218 Page: 10 Date Filed: 07/09/2019\n\n\n\n No. 17-20694\ntakes any other action, designed to prevent or hamper” his removal) (emphasis\nadded); see also, e.g., U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc.,\n508 U.S. 439, 454 (1993) (observing that “the meaning of a statute will\ntypically heed the commands of its punctuation”); United States v. Ron Pair\nEnters., Inc., 489 U.S. 235, 241 (1989) (relying on “grammatical structure” to\ninterpret a statute and reasoning that a phrase “set aside by commas . . .\nstands independent of the language that follows”); SCALIA & GARNER at 161\n(stating that “[n]o intelligent construction of a text can ignore its\npunctuation”). Consequently, we conclude that the ejusdem generis canon fails\nto support Buluc’s reading of Subsection (C).\n Second, the related contextual canon noscitur a sociis also does not help\nBuluc. Noscitur a sociis (“it is known by its associates”) applies “‘when a string\nof statutory terms raises the implication that the words grouped in a list should\nbe given related meaning.’” Lauderdale Cty., 914 F.3d at 967 (quoting S.D.\nWarren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370, 378 (2006)); see SCALIA &\nGARNER at 195 (quoting Third Nat’l Bank in Nashville v. Impac Ltd., 432 U.S.\n312, 322 (1977)) (explaining the canon “especially holds that ‘words grouped in\na list should be given related meanings’”). Here the operative phrase in\nSubsection (C) lacks the “string of statutory terms” necessary to invoke the\ncanon. For instance, in Lauderdale County, we declined to apply noscitur a\nsociis to the phrase “conduct by law enforcement officers or by officials or\nemployees of any governmental agency,” reasoning the phrase “does not\ncontain a string of terms” but “rather . . . contains two independent clauses\nseparated by a disjunctive ‘or.’” 914 F.3d at 967; see also, e.g., S.D. Warren Co.,\n547 U.S. at 379–80 (explaining that “noscitur a sociis is no help absent some\nsort of gathering with a common feature to extrapolate”); SCALIA & GARNER at\n196 (explaining that “[f]or the associated-words canon to apply, the terms must\nbe conjoined in such a way as to indicate that they have some quality in\n 10\n\f Case: 17-20694 Document: 00515026218 Page: 11 Date Filed: 07/09/2019\n\n\n\n No. 17-20694\ncommon”). That principle defeats application of the canon here: As we have\nexplained, Subsection (C) features, not a list of verbs with common features,\nbut two grammatically distinct categories of verbs (“connives or conspires” and\n“takes any other action”) separated by a disjunctive. We therefore decline to\napply noscitur a sociis to “takes any other action.” Doing so would unjustifiably\n“rob” that broad phrase “of its independent and ordinary significance.” Graham\nCty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 559 U.S. 280, 288\n(2010) (quoting Rieter v. Sonotone Corp., 442 U.S. 330, 338–39 (1979) (internal\nmarks omitted)).\n In sum, we reject Buluc’s arguments that the cited canons limit the\nSubsection (C) phrase “takes any other action” to “takes any other joint action.”\nLeaving aside the fact that the contextual triggers for those canons are absent,\ndeploying the canons as Buluc suggests would “render [the] general words [of\nSubsection (C)] meaningless.” Kaluza, 780 F.3d at 661 (quoting Christopher v.\nSmithKline Beecham Corp., 567 U.S. 142, 163 (2012)). Nothing in the text or\nsurrounding context of Subsection (C) suggests that Congress meant to limit\nthe phrase “takes any other action” to actions taken in concert with others.\nCongress could have easily enacted a different text conveying that meaning—\nfor instance, “connives or conspires, or takes any other joint action” or\n“connives or conspires, or takes any other similar action.” Instead Congress\nchose the broad, unqualified phrase—“takes any other action”—and fenced it\noff from nearby verbs by commas. We must give effect to that choice. See, e.g.,\nAli, 552 U.S. at 227–28 (declining to deploy canons to limit “the unmodified,\nall-encompassing phrase ‘any other law enforcement officer,’” where Congress\n\n\n\n\n 11\n\f Case: 17-20694 Document: 00515026218 Page: 12 Date Filed: 07/09/2019\n\n\n\n No. 17-20694\n“easily could have written” a narrower phrase); see also SCALIA & GARNER at\n59 (“No canon of interpretation is absolute.”). 4\n We therefore hold that the phrase “takes any other action” in 8 U.S.C.\n§ 1253(a)(1)(C) is not limited to acts requiring joint or concerted action by the\ndefendant. Because a reasonable jury could conclude that the government’s\nevidence established Buluc’s guilt under Subsection (C) beyond a reasonable\ndoubt, we affirm the denial of Buluc’s motion for judgment of acquittal.\n B.\n Buluc next argues certain evidentiary rulings of the district court\nviolated the Confrontation Clause. That clause bars “admission of testimonial\nstatements of a witness who did not appear at trial unless he was unavailable\nto testify, and the defendant . . . had a prior opportunity for cross-\nexamination.” Crawford v. Washington, 541 U.S. 36, 53–54 (2004); U.S. CONST.\namend. VI. Specifically, Buluc challenges the prosecution’s opening statement\nand two officers’ testimony about Turkish Airline representative Ozel’s refusal\nto allow Buluc on the plane. During his opening statement, the prosecutor told\nthe jury it would hear officers’ testimony that Ozel refused to board Buluc.\nOfficers Rawls and Nugent subsequently testified that Ozel denied Buluc\npermission to board. Rawls testified Ozel “denied his boarding.” Nugent\nsimilarly testified, “We were denied boarding,” and observed he was “pretty\n\n\n\n 4 In his reply brief, Buluc also argues this reading of Subsection (C) renders\nsuperfluous Subsection (A), which penalizes an alien who “willfully fails or refuses to depart\nfrom the United States within a period of 90 days[.]” 8 U.S.C. § 1253(a)(1)(A); see, e.g.,\nHoward Hughes Co., L.L.C. v. Comm’r, 805 F.3d 175, 183 (5th Cir. 2015) (discussing “the rule\nagainst superfluities, [which] instructs courts to interpret a statute to effectuate all its\nprovisions, so that no part is rendered superfluous”) (alteration in original) (quoting Hibbs v.\nWinn, 542 U.S. 88, 89 (2004)). “By failing to raise this argument until [his] reply brief, [Buluc]\nha[s] waived it.” Unida v. Levi Strauss & Co., 986 F.2d 970, 976, n.4 (5th Cir. 1993). In any\nevent, Buluc is wrong. Subsection (A) accounts for different conduct than Subsection (C): It\npenalizes an alien for willfully failing to leave the United States within a specific time period\n(90 days) after being ordered to do so.\n 12\n\f Case: 17-20694 Document: 00515026218 Page: 13 Date Filed: 07/09/2019\n\n\n\n No. 17-20694\ncertain” Buluc heard Ozel’s denial. Buluc argues these were Confrontation\nClause violations because the officers referred to Ozel’s out-of-court statement\nto prove that Buluc was denied boarding and because Buluc had no opportunity\nto cross-examine Ozel. The district court overruled Buluc’s objections, finding\nthe officers’ testimony did not implicate the Confrontation Clause. We agree.\n The admission of an out-of-court statement triggers the Confrontation\nClause only if the statement was “testimonial,” meaning its “‘primary purpose’\n. . . was to ‘creat[e] an out-of-court substitute for trial testimony.’” Ohio v.\nClark, 135 S. Ct. 2173, 2180 (2015) (quoting Michigan v. Bryant, 562 U.S. 344,\n358 (2011)) (alteration in original). Even assuming the officers’ testimony\nreferenced Ozel’s statement 5 denying Buluc boarding, that statement was not\n“testimonial” for Confrontation Clause purposes. Ozel’s statement was made,\nnot in response to police questioning, but instead during the heated encounter\ncaused by Buluc’s violent resistance to being boarded. Under those\ncircumstances, we do not find the primary purpose of the statement was to\ncreate evidence to incriminate Buluc at trial. See, e.g., id. (citing Bryant, 562\nU.S. at 358) (statement was non-testimonial where “the circumstances\nobjectively indicated that the conversation was primarily aimed at quelling an\nongoing emergency, not establishing evidence for the prosecution”); United\nStates v. Barker, 820 F.3d 167, 170 (5th Cir. 2016) (quoting Clark, 135 U.S. at\n2180) (in discerning whether statement was non-testimonial, court examines\n“factors such as ‘whether an ongoing emergency exists’ and ‘the informality of\nthe situation and the interrogation’”). Ozel’s statement therefore fell outside\nthe purview of the Confrontation Clause.\n\n\n\n\n 5 That is a generous assumption. One may reasonably read the record, as the district\ncourt did, to show that the officers testified only about “whether or not they were allowed to\nput [Buluc] on the airplane,” and not about “what was said” by the airline representative.\n 13\n\f Case: 17-20694 Document: 00515026218 Page: 14 Date Filed: 07/09/2019\n\n\n\n No. 17-20694\n Alternatively, any error in admitting the officers’ testimony was\nharmless beyond a reasonable doubt. United States v. Jimenez, 464 F.3d 555,\n562 (5th Cir. 2006) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).\nThe government meets that standard by showing there was “‘no reasonable\npossibility that the tainted evidence might have contributed to the jury’s\nverdict of guilty.’” United States v. Jones, __ F.3d __, 2019 WL 2754760, at *8\n(5th Cir. July 2, 2019) (quoting Lowery v. Collins, 988 F.2d 1364, 1373 (5th Cir.\n1993)). We see no reasonable possibility here. The testimony about Ozel’s\nrefusal to board Buluc was unnecessary to prove Buluc acted to hamper his\ndeparture under Subsection (C). See 8 U.S.C. § 1253(a)(1)(C) (requiring that\ndefendant only “take . . . action” to “prevent or hamper” his departure).\nMoreover, that testimony was tangential to the evidence establishing Buluc’s\nguilt. The record reflects that Buluc candidly told the officers on the way to the\nairport that he did not intend to get on the flight. Buluc refused to get out of\nthe vehicle once they arrived at the airport. And Buluc vigorously resisted the\nofficers’ attempts to board him, to the extent that the officers had to carry him\nto the plane. Even indulging the assumption that the district court erroneously\nadmitted testimony concerning the airline’s refusal to board Buluc, we discern\nno reasonable possibility that it contributed to Buluc’s conviction.\n AFFIRMED\n\n\n\n\n 14\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Bekir BULUC, Also Known as Celebi Buluc, Also Known as Bekir Celibi, Defendant - Appellant\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-09\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-20694 Document: 00515026218 Page: 1 Date Filed: 07/09/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 17-20694 July 9, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nBEKIR BULUC, also known as Celebi Buluc, also known as Bekir Celibi,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore CLEMENT, DUNCAN, and OLDHAM, Circuit Judges.\\nSTUART KYLE DUNCAN, Circuit Judge:\\n A jury convicted Turkish national Bekir Buluc under 8 U.S.C.\\n§ 1253(a)(1)(C) for “tak[ing] . . . action” that was “designed to prevent or\\nhamper” his removal from the United States. While immigration officers were\\nescorting Buluc onto a commercial flight to Turkey, Buluc announced he would\\nnot board the plane and vigorously resisted the officers’ attempts to carry him\\naboard. Airline personnel, witnessing the fracas, barred Buluc’s boarding. At\\ntrial, Buluc claimed that the subsection under which he was prosecuted\\nrequires “joint” action. Invoking the canons of construction ejusdem generis\\nand noscitur a sociis, Buluc argued that the meaning of “takes action” in\\n§ 1253(a)(1)(C) is colored by the nearby verbs “connives” and “conspires,” which\\n\\f Case: 17-20694 Document: 00515026218 Page: 2 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-20694\\nconnote joint action. Id. (penalizing an alien who “connives or conspires, or\\ntakes any other action, designed to prevent or hamper . . . [his] departure\\npursuant to [a final order of removal]”). Buluc therefore moved for acquittal\\nbecause there was no evidence that he acted with anyone else to prevent his\\nremoval. Buluc also objected on Confrontation Clause grounds to the officers’\\ntestimony that airline personnel denied him boarding after witnessing his\\ntantrum. The district court disagreed with Buluc on both points.\\n On appeal, Buluc again wheels out the statutory canons to cabin the\\nphrase “takes any other action” to joint action. We are unpersuaded. The\\nrelevant phrase—“connives or conspires, or takes any other action”—contains\\nnone of the contextual fuses that trigger those canons. Instead, the phrase’s\\nstructure conveys that “takes any other action” has independent meaning,\\nwhich easily encompasses Buluc’s solo efforts to thwart his removal. We also\\ndisagree with Buluc’s Confrontation Clause arguments. The officers’ testimony\\nthat airline personnel denied Buluc boarding did not implicate the\\nConfrontation Clause. Even if it did, any error was harmless. We affirm.\\n I.\\n Pursuant to a final order of removal, the United States attempted to\\ndeport Buluc via a commercial flight to Turkey on October 4, 2016. Since Buluc\\nhad “caused problems” during his four previous removals, Immigration and\\nCustoms Enforcement (“ICE”) arranged for extra help. Several ICE officers,\\nincluding Richard Rawls (“Officer Rawls”) and Michael Nugent (“Officer\\nNugent”), escorted Buluc to the Bush Intercontinental Airport in Houston,\\nTexas. En route, Buluc warned officers that he intended to resist. He told them:\\n“I am not going to get on that flight.” He also stated: “You can’t use force\\nputting me on a commercial flight. You are going to have to put me on a charter\\nflight because there you can use force.”\\n\\n\\n 2\\n\\f Case: 17-20694 Document: 00515026218 Page: 3 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-20694\\n To avoid a scene in the airport, ICE arranged for a Houston police officer\\nto meet them on the tarmac and board Buluc plane-side. But once they arrived,\\nBuluc refused to exit the vehicle, again stating that he did not want to go.\\nOfficers then pulled Buluc from the vehicle, put him on the ground, and\\nsearched him. Then they tried to carry a still-intransigent Buluc to the plane.\\nBuluc “remained rigid” until the officers approached the plane’s stairs. He then\\n“started kicking and physically resisting” and “violently pik[ing] and mov[ing]\\nabout to where it was difficult to continue to carry him,” and so the officers put\\nhim down.\\n In light of this commotion, Turkish Airlines refused to board Buluc. An\\nairline representative, Mr. Ozel, observed the “ruckus” and denied Buluc\\nboarding. After Buluc realized the airline would not permit him to board, he\\nstopped resisting and walked back to the vehicle. The officers then returned\\nhim to the detention center.\\n The government charged Buluc with preventing his departure under\\nSubsection (C) of 8 U.S.C. § 1253(a)(1) (“Subsection (C)”), which penalizes\\n“[a]ny alien” who “connives or conspires, or takes any other action, designed to\\nprevent or hamper or with the purpose of preventing or hampering the alien’s\\ndeparture pursuant to [a final order of removal].” Following the government’s\\ncase at trial, Buluc moved for a judgment of acquittal under Federal Rule of\\nCriminal Procedure 29. He argued that the trial evidence fatally varied the\\ncharges in the indictment, because Subsection (C) requires proof of a “joint act”\\nto prevent an alien’s departure, and the government had not proved that.\\nBuluc’s attorney argued, “You can’t conspire alone or with a government agent.\\nThe government must prove that he connived, conspired or took some other\\nsimilar action. And I don’t think they have proven any of that.” The district\\njudge denied the motion, however, reasoning that the pertinent statutory\\nterms—“connives or conspires, or takes any other action”—are phrased\\n 3\\n\\f Case: 17-20694 Document: 00515026218 Page: 4 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-20694\\ndisjunctively, and that the government had presented sufficient evidence that\\nBuluc “took action” to prevent his departure.\\n Buluc also challenged on Confrontation Clause grounds statements\\nintroduced by the prosecution that Buluc was denied boarding by the airline\\nrepresentative. Buluc objected to the prosecutor’s opening statement that the\\njury would hear about the airline’s refusal to let Buluc board because “[t]hat’s\\nnot what they want the customers to see.” Buluc also objected to testimony\\nfrom Officers Rawls and Nugent. Specifically, Rawls testified that the airline\\n“denied his boarding,” and Nugent similarly testified that “[w]e were denied\\nboarding.” Buluc timely objected on Confrontation Clause grounds, and the\\njudge permitted Buluc to enter an ongoing objection. Ultimately, the court\\noverruled Buluc’s objections, concluding the officers had testified about\\n“whether or not they were allowed to put him on the airplane,” and not “what\\nwas said” by the airline representative.\\n Buluc rested without presenting a case. The jury found him guilty, and\\nthe judge sentenced him to 46 months imprisonment and one year supervised\\nrelease. Buluc now appeals the district court’s denial of his acquittal motion\\nand its Confrontation Clause ruling.\\n II.\\n We review de novo a district court’s denial of a motion for judgment of\\nacquittal under Rule 29. United States v. Campbell, 52 F.3d 521, 522 (5th Cir.\\n1995) (per curiam). In doing so, we ask “whether a reasonable jury could\\nconclude that the evidence presented, viewed in the light most favorable to the\\ngovernment, established the defendant’s guilt beyond a reasonable doubt.”\\nUnited States v. Duncan, 164 F.3d 239, 242 (5th Cir. 1999). The district court’s\\ndecision on the motion is accorded no deference. Id. Additionally, whether\\nintroduction of testimony violated the Confrontation Clause is reviewed de\\nnovo, “subject to a harmless error analysis.” United States v. Polidore, 690 F.3d\\n 4\\n\\f Case: 17-20694 Document: 00515026218 Page: 5 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-20694\\n705, 710 (5th Cir. 2012). “Harmless error means that there is [no] reasonable\\npossibility that the evidence complained of might have contributed to the\\nconviction.” United States v. Kizzee, 877 F.3d 650, 661 (5th Cir. 2017)\\n(alteration in original) (internal quotation marks omitted).\\n III.\\n A.\\n Appealing the denial of his acquittal motion, Buluc argues the district\\ncourt misconstrued 8 U.S.C. § 1253(a)(1)(C) by failing to recognize that it\\nrequires “joint action.” In several unpublished opinions, we have affirmed the\\nevidentiary sufficiency of convictions under Subsection (C) that do not involve\\njoint action, albeit without addressing the interpretive arguments Buluc\\nraises. 1 We now make explicit what was implicit in those non-precedential\\ndecisions: A defendant may be convicted of “taking . . . action” to “prevent or\\nhamper” his deportation under Subsection (C) without any proof that he acted\\nin concert with someone else.\\n Subsection (C) appears within this broader context:\\n\\n\\n\\n\\n 1 See United States v. Ngay, 708 F. App’x 192, 193 (5th Cir. 2018) (per curiam)\\n(affirming Subsection (C) conviction where alien being deported “unequivocally declared to\\nthe deportation officer . . . that he would not go[,]” “physically resisted the deportation officers’\\nefforts” to take him through security “by stiffening his legs to avoid moving forward” and by\\n“jerking his arms and thrashing about to escape the officers’ hold”); United States v.\\nNzamubereka, 666 F. App’x 327, 327–28 (5th Cir. 2016) (per curiam) (affirming where\\ndefendant “refused to sign a transit visa application necessary to remove him to Rwanda”);\\nUnited States v. Sat, 572 F. App’x 278, 279 (5th Cir. 2014) (per curiam) (affirming where\\ndefendant “refus[ed] . . . to board a flight to India” on designated departure date); United\\nStates v. Diallo, 569 F. App’x 221, 222 (5th Cir. 2014) (per curiam) (finding defendant\\n“connived or took other actions designed to prevent or hamper . . . his removal” by “becoming\\ndisruptive and physically resisting the immigration enforcement agents when they\\nattempted to escort him onto commercial flights bound for the Central African Republic”).\\n\\n 5\\n\\f Case: 17-20694 Document: 00515026218 Page: 6 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-20694\\n (a) Penalty for failure to depart\\n (1) In general\\n Any alien against whom a final order of removal is outstanding\\n by reason of being a member of any of the classes described in\\n section 1227(a) of this title, who—\\n (A) willfully fails or refuses to depart from the United States\\n within a period of 90 days from the date of the final order\\n of removal under administrative processes, or if judicial\\n review is had, then from the date of the final order of the\\n court,\\n (B) willfully fails or refuses to make timely application in\\n good faith for travel or other documents necessary to the\\n alien’s departure,\\n (C) connives or conspires, or takes any other action, designed to\\n prevent or hamper or with the purpose of preventing or\\n hampering the alien’s departure pursuant to such, or\\n (D) willfully fails or refuses to present himself or herself for\\n removal at the time and place required by the Attorney\\n General pursuant to such order,\\n shall be fined under Title 18, or imprisoned not more than four\\n years (or 10 years if the alien is a member of any of the classes\\n described in paragraph (1)(E), (2), (3), or (4) of section 1227(a)\\n of this title), or both.\\n\\n8 U.S.C. § 1253(a)(1) (emphasis added). On appeal, Buluc argues that the\\ndistrict court failed to apply two canons of construction—ejusdem generis and\\nnoscitur a sociis—to the Subsection (C) phrase “takes any other action.” Buluc\\nmaintains the phrase must be limited by the nearby verbs “connives or\\nconspires” to require joint or concerted action with another. Because there was\\nno such evidence—the evidence shows Buluc acted alone—Buluc asserts the\\ndistrict court erred by denying his acquittal motion. For its part, the district\\ncourt disagreed that Subsection (C) requires a joint act. “It seems to me[,]” the\\ncourt stated, “the way I read the statute is that he either connived or conspired\\nor took any other action. Those are disjunctive, and so I think that [Buluc] took\\n 6\\n\\f Case: 17-20694 Document: 00515026218 Page: 7 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-20694\\naction to prevent his deportation.” The government relies on the district court’s\\nreasoning on appeal. We agree with the district court and the government that\\nthe cited canons do not require Buluc’s “joint-action” interpretation of “takes\\nany other action.”\\n First, the contextual canon ejusdem generis does not help Buluc.\\nEjusdem generis (“of the same kind”) describes the “principle that ‘when a\\ngeneral term follows a specific one, the general term should be understood as\\na reference to subjects akin to the one with specific enumeration.’” Ali v. Fed.\\nBureau of Prisons, 552 U.S. 214, 223 (2008) (quoting Norfolk & W. R. Co. v.\\nTrain Dispatchers, 499 U.S. 117, 129 (1991)) 2; see also generally ANTONIN\\nSCALIA & BRYAN GARNER, READING LAW: THE INTERPRETATION OF LEGAL\\nTEXTS (2012), 199 (“SCALIA & GARNER”) (ejusdem generis signifies “[w]here\\ngeneral words follow an enumeration of two or more things, they apply only to\\npersons or things of the same general kind or class specifically mentioned”).\\nBuluc argues this canon limits the general phrase “takes any other action” to\\njointly undertaken acts because it follows the specific terms “connives or\\nconspires,” both of which require joint actions. See BLACK’S LAW DICTIONARY\\nat 375 (10th ed. 2014) (defining “conspiracy” as an “agreement by two or more\\npersons to commit an unlawful act”); id. at 366 (defining “connive” as\\n“knowingly overlook[ing] another’s wrongdoing”). We disagree.\\n\\n\\n\\n\\n 2 See also, e.g., Reed v. Taylor, 923 F.3d 411, 416 (5th Cir. 2019) (quoting Circuit City\\nStores, Inc. v. Adams, 532 U.S. 105, 114–15 (2001) & 2A N. SINGER, SUTHERLAND ON\\nSTATUTES AND STATUTORY CONSTRUCTION § 47.17 (1991)) (“[T]he ejusdem generis canon”\\nmeans “‘[w]here general words follow specific words in a statutory enumeration, the general\\nwords are construed to embrace only objects similar in nature to those objects enumerated\\nby the preceding specific words’”); United States v. Kaluza, 780 F.3d 647, 660–61 (5th Cir.\\n2015) (quoting Garcia v. United States, 469 U.S. 70, 74 (1984)) (explaining “[u]nder the\\nprinciple of ejusdem generis, ‘where general words follow an enumeration of specific terms,\\nthe general words are read to apply only to other items like those specifically enumerated’”).\\n 7\\n\\f Case: 17-20694 Document: 00515026218 Page: 8 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-20694\\n Subsection (C) lacks the basic premise for applying ejusdem generis—a\\nlist of specific terms followed by a catchall generic term or terms. See, e.g.,\\nCircuit City Stores, 532 U.S. at 114 (canon applies “[w]here general words\\nfollow specific words in a statutory enumeration”) (alteration in original); see\\nalso SCALIA & GARNER at 200 (charting canon’s application to “syntactic\\nconstructions that have particularized lists followed by a broad, generic\\nphrase” and collecting decisions). For example, in one decision the Supreme\\nCourt applied the canon to the list “execution, levy, attachment, garnishment,\\nor other legal process,” and concluded that the catchall “‘other legal process’\\nwas limited to legal processes of the same nature as the specific items listed.”\\nAli, 552 U.S. at 224 (discussing Wash. State Dep’t of Soc. and Health Servs. v.\\nGuardianship Estate of Keffeler, 537 U.S. 371, 375, 384–85 (2003)); see also\\nReed, 923 F.3d at 416 (discussing Keffeler’s application of ejusdem generis).\\nSimilarly, in another case the Supreme Court applied the canon to the\\nenumeration “contracts of employment of seamen, railroad employees, or any\\nother class of workers engaged in . . . commerce,” and concluded that the\\nresidual clause (“any other class of workers”) was limited “by reference to the\\nenumerated categories of workers which are recited just before it.” Circuit City\\nStores, 532 U.S. at 112, 114–15. Thus ejusdem generis relies on the “familiar\\nsemantic structure” in which an enumeration of specific terms imparts a\\nrestrictive meaning to a generic “follow-on phrase.” Reed, 923 F.3d at 416. That\\nsignature structure justifies the “inference embodied in ejusdem generis that\\nCongress remained focused on the common attribute [of the specific terms]\\nwhen it used the catchall phrase.” Ali, 552 U.S. at 225.\\n Subsection (C) is not structured that way. To the contrary, it has a\\ndistinct structure that repels application of ejusdem generis. As the Supreme\\nCourt has explained, ejusdem generis does not apply when the relevant\\n“phrase is disjunctive, with one specific and one general category, not . . . a list\\n 8\\n\\f Case: 17-20694 Document: 00515026218 Page: 9 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-20694\\nof specific items separated by commas and followed by a general or collective\\nterm.” Id. Thus, in Ali the Supreme Court declined to apply the canon to the\\nphrase “any officer of customs or excise or any other law enforcement officer.”\\nId. The phrase did not present the ejusdem generis trademark of a list of\\nspecifics followed by a “‘general or collective term.’” Id. (quoting United States\\nv. Aguilar, 515 U.S. 593, 615 (1995) (Scalia, J., concurring in part and\\ndissenting in part)). Instead, it featured the “disjunctive” pairing of “one\\nspecific [category]” (“any officer of customs or excise”) and “one general\\ncategory” (“any other law enforcement officer”).\\n So too here. The verbs in Subsection (C)—“connives or conspires, or\\ntakes any other action”—are not structured grammatically as a list of specifics\\nfollowed by a generic catchall. See, e.g., SCALIA & GARNER at 197 (explaining\\nthat a list is “usually a parallel series of nouns and noun phrases, or verbs and\\nverb phrases”). Instead, the subsection disjunctively places one category of\\nverbs (“connives or conspires”) alongside a second category (“takes any other\\naction”). Like the three nouns in Ali, the verbs’ grouping as distinct categories\\nsignals contextually that they have independent meaning. 3 The punctuation\\nof Subsection (C) underscores this point: “connives or conspires” is cordoned\\noff from “takes any other action” by a conspicuous set of commas. See 8 U.S.C.\\n§ 1253(a)(1)(C) (penalizing an alien who, inter alia, “connives or conspires, or\\n\\n\\n\\n 3 See, e.g., United States v. Turkette, 452 U.S. 576, 582 (1981) (determining ejusdem\\ngeneris inapplicable where a statute listed two categories, one of which was not “merely a\\nmore general description of the first”); United States v. EME Homer City Generation, L.P.,\\n727 F.3d 274, 293 (3rd Cir. 2013) (citing Ali, 552 U.S. at 226; Watt v. W. Nuclear, Inc., 462\\nU.S. 36, 44 n.5 (1983) (explaining that “[s]ome statutes use a general phrase not as a residual\\ncategory intended to be a more general description of the preceding terms, but instead use\\neach of the terms, including the general phrase, as independent and unrelated statutory\\ncategories”)); cf. United States v. Lauderdale Cty., 914 F.3d 960, 967 (5th Cir. 2019)\\n(concluding that the clause “‘conduct by law enforcement officers or by officials or employees\\nof any governmental agency’ does not contain a string of terms; rather, it contains two\\nindependent clauses separated by a disjunctive ‘or’”).\\n 9\\n\\f Case: 17-20694 Document: 00515026218 Page: 10 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-20694\\ntakes any other action, designed to prevent or hamper” his removal) (emphasis\\nadded); see also, e.g., U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc.,\\n508 U.S. 439, 454 (1993) (observing that “the meaning of a statute will\\ntypically heed the commands of its punctuation”); United States v. Ron Pair\\nEnters., Inc., 489 U.S. 235, 241 (1989) (relying on “grammatical structure” to\\ninterpret a statute and reasoning that a phrase “set aside by commas . . .\\nstands independent of the language that follows”); SCALIA & GARNER at 161\\n(stating that “[n]o intelligent construction of a text can ignore its\\npunctuation”). Consequently, we conclude that the ejusdem generis canon fails\\nto support Buluc’s reading of Subsection (C).\\n Second, the related contextual canon noscitur a sociis also does not help\\nBuluc. Noscitur a sociis (“it is known by its associates”) applies “‘when a string\\nof statutory terms raises the implication that the words grouped in a list should\\nbe given related meaning.’” Lauderdale Cty., 914 F.3d at 967 (quoting S.D.\\nWarren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370, 378 (2006)); see SCALIA &\\nGARNER at 195 (quoting Third Nat’l Bank in Nashville v. Impac Ltd., 432 U.S.\\n312, 322 (1977)) (explaining the canon “especially holds that ‘words grouped in\\na list should be given related meanings’”). Here the operative phrase in\\nSubsection (C) lacks the “string of statutory terms” necessary to invoke the\\ncanon. For instance, in Lauderdale County, we declined to apply noscitur a\\nsociis to the phrase “conduct by law enforcement officers or by officials or\\nemployees of any governmental agency,” reasoning the phrase “does not\\ncontain a string of terms” but “rather . . . contains two independent clauses\\nseparated by a disjunctive ‘or.’” 914 F.3d at 967; see also, e.g., S.D. Warren Co.,\\n547 U.S. at 379–80 (explaining that “noscitur a sociis is no help absent some\\nsort of gathering with a common feature to extrapolate”); SCALIA & GARNER at\\n196 (explaining that “[f]or the associated-words canon to apply, the terms must\\nbe conjoined in such a way as to indicate that they have some quality in\\n 10\\n\\f Case: 17-20694 Document: 00515026218 Page: 11 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-20694\\ncommon”). That principle defeats application of the canon here: As we have\\nexplained, Subsection (C) features, not a list of verbs with common features,\\nbut two grammatically distinct categories of verbs (“connives or conspires” and\\n“takes any other action”) separated by a disjunctive. We therefore decline to\\napply noscitur a sociis to “takes any other action.” Doing so would unjustifiably\\n“rob” that broad phrase “of its independent and ordinary significance.” Graham\\nCty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 559 U.S. 280, 288\\n(2010) (quoting Rieter v. Sonotone Corp., 442 U.S. 330, 338–39 (1979) (internal\\nmarks omitted)).\\n In sum, we reject Buluc’s arguments that the cited canons limit the\\nSubsection (C) phrase “takes any other action” to “takes any other joint action.”\\nLeaving aside the fact that the contextual triggers for those canons are absent,\\ndeploying the canons as Buluc suggests would “render [the] general words [of\\nSubsection (C)] meaningless.” Kaluza, 780 F.3d at 661 (quoting Christopher v.\\nSmithKline Beecham Corp., 567 U.S. 142, 163 (2012)). Nothing in the text or\\nsurrounding context of Subsection (C) suggests that Congress meant to limit\\nthe phrase “takes any other action” to actions taken in concert with others.\\nCongress could have easily enacted a different text conveying that meaning—\\nfor instance, “connives or conspires, or takes any other joint action” or\\n“connives or conspires, or takes any other similar action.” Instead Congress\\nchose the broad, unqualified phrase—“takes any other action”—and fenced it\\noff from nearby verbs by commas. We must give effect to that choice. See, e.g.,\\nAli, 552 U.S. at 227–28 (declining to deploy canons to limit “the unmodified,\\nall-encompassing phrase ‘any other law enforcement officer,’” where Congress\\n\\n\\n\\n\\n 11\\n\\f Case: 17-20694 Document: 00515026218 Page: 12 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-20694\\n“easily could have written” a narrower phrase); see also SCALIA & GARNER at\\n59 (“No canon of interpretation is absolute.”). 4\\n We therefore hold that the phrase “takes any other action” in 8 U.S.C.\\n§ 1253(a)(1)(C) is not limited to acts requiring joint or concerted action by the\\ndefendant. Because a reasonable jury could conclude that the government’s\\nevidence established Buluc’s guilt under Subsection (C) beyond a reasonable\\ndoubt, we affirm the denial of Buluc’s motion for judgment of acquittal.\\n B.\\n Buluc next argues certain evidentiary rulings of the district court\\nviolated the Confrontation Clause. That clause bars “admission of testimonial\\nstatements of a witness who did not appear at trial unless he was unavailable\\nto testify, and the defendant . . . had a prior opportunity for cross-\\nexamination.” Crawford v. Washington, 541 U.S. 36, 53–54 (2004); U.S. CONST.\\namend. VI. Specifically, Buluc challenges the prosecution’s opening statement\\nand two officers’ testimony about Turkish Airline representative Ozel’s refusal\\nto allow Buluc on the plane. During his opening statement, the prosecutor told\\nthe jury it would hear officers’ testimony that Ozel refused to board Buluc.\\nOfficers Rawls and Nugent subsequently testified that Ozel denied Buluc\\npermission to board. Rawls testified Ozel “denied his boarding.” Nugent\\nsimilarly testified, “We were denied boarding,” and observed he was “pretty\\n\\n\\n\\n 4 In his reply brief, Buluc also argues this reading of Subsection (C) renders\\nsuperfluous Subsection (A), which penalizes an alien who “willfully fails or refuses to depart\\nfrom the United States within a period of 90 days[.]” 8 U.S.C. § 1253(a)(1)(A); see, e.g.,\\nHoward Hughes Co., L.L.C. v. Comm’r, 805 F.3d 175, 183 (5th Cir. 2015) (discussing “the rule\\nagainst superfluities, [which] instructs courts to interpret a statute to effectuate all its\\nprovisions, so that no part is rendered superfluous”) (alteration in original) (quoting Hibbs v.\\nWinn, 542 U.S. 88, 89 (2004)). “By failing to raise this argument until [his] reply brief, [Buluc]\\nha[s] waived it.” Unida v. Levi Strauss & Co., 986 F.2d 970, 976, n.4 (5th Cir. 1993). In any\\nevent, Buluc is wrong. Subsection (A) accounts for different conduct than Subsection (C): It\\npenalizes an alien for willfully failing to leave the United States within a specific time period\\n(90 days) after being ordered to do so.\\n 12\\n\\f Case: 17-20694 Document: 00515026218 Page: 13 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-20694\\ncertain” Buluc heard Ozel’s denial. Buluc argues these were Confrontation\\nClause violations because the officers referred to Ozel’s out-of-court statement\\nto prove that Buluc was denied boarding and because Buluc had no opportunity\\nto cross-examine Ozel. The district court overruled Buluc’s objections, finding\\nthe officers’ testimony did not implicate the Confrontation Clause. We agree.\\n The admission of an out-of-court statement triggers the Confrontation\\nClause only if the statement was “testimonial,” meaning its “‘primary purpose’\\n. . . was to ‘creat[e] an out-of-court substitute for trial testimony.’” Ohio v.\\nClark, 135 S. Ct. 2173, 2180 (2015) (quoting Michigan v. Bryant, 562 U.S. 344,\\n358 (2011)) (alteration in original). Even assuming the officers’ testimony\\nreferenced Ozel’s statement 5 denying Buluc boarding, that statement was not\\n“testimonial” for Confrontation Clause purposes. Ozel’s statement was made,\\nnot in response to police questioning, but instead during the heated encounter\\ncaused by Buluc’s violent resistance to being boarded. Under those\\ncircumstances, we do not find the primary purpose of the statement was to\\ncreate evidence to incriminate Buluc at trial. See, e.g., id. (citing Bryant, 562\\nU.S. at 358) (statement was non-testimonial where “the circumstances\\nobjectively indicated that the conversation was primarily aimed at quelling an\\nongoing emergency, not establishing evidence for the prosecution”); United\\nStates v. Barker, 820 F.3d 167, 170 (5th Cir. 2016) (quoting Clark, 135 U.S. at\\n2180) (in discerning whether statement was non-testimonial, court examines\\n“factors such as ‘whether an ongoing emergency exists’ and ‘the informality of\\nthe situation and the interrogation’”). Ozel’s statement therefore fell outside\\nthe purview of the Confrontation Clause.\\n\\n\\n\\n\\n 5 That is a generous assumption. One may reasonably read the record, as the district\\ncourt did, to show that the officers testified only about “whether or not they were allowed to\\nput [Buluc] on the airplane,” and not about “what was said” by the airline representative.\\n 13\\n\\f Case: 17-20694 Document: 00515026218 Page: 14 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-20694\\n Alternatively, any error in admitting the officers’ testimony was\\nharmless beyond a reasonable doubt. United States v. Jimenez, 464 F.3d 555,\\n562 (5th Cir. 2006) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).\\nThe government meets that standard by showing there was “‘no reasonable\\npossibility that the tainted evidence might have contributed to the jury’s\\nverdict of guilty.’” United States v. Jones, __ F.3d __, 2019 WL 2754760, at *8\\n(5th Cir. July 2, 2019) (quoting Lowery v. Collins, 988 F.2d 1364, 1373 (5th Cir.\\n1993)). We see no reasonable possibility here. The testimony about Ozel’s\\nrefusal to board Buluc was unnecessary to prove Buluc acted to hamper his\\ndeparture under Subsection (C). See 8 U.S.C. § 1253(a)(1)(C) (requiring that\\ndefendant only “take . . . action” to “prevent or hamper” his departure).\\nMoreover, that testimony was tangential to the evidence establishing Buluc’s\\nguilt. The record reflects that Buluc candidly told the officers on the way to the\\nairport that he did not intend to get on the flight. Buluc refused to get out of\\nthe vehicle once they arrived at the airport. And Buluc vigorously resisted the\\nofficers’ attempts to board him, to the extent that the officers had to carry him\\nto the plane. Even indulging the assumption that the district court erroneously\\nadmitted testimony concerning the airline’s refusal to board Buluc, we discern\\nno reasonable possibility that it contributed to Buluc’s conviction.\\n AFFIRMED\\n\\n\\n\\n\\n 14\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2987,"cells":{"id":{"kind":"number","value":4637723,"string":"4,637,723"},"name":{"kind":"string","value":"MIDCAP MEDIA FINANCE, L.L.C., Plaintiff-Appellee Cross-Appellant, v. PATHWAY DATA, INCORPORATED, Doing Business as Consumer Direct, Defendant-Appellant Cross-Appellee."},"name_abbreviation":{"kind":"string","value":"MidCap Media Finance, L.L.C. v. Pathway Data, Inco"},"decision_date":{"kind":"string","value":"2019-07-09"},"docket_number":{"kind":"string","value":"18-50650"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Clement, Duncan, Oldham\", \"parties\": \"\", \"opinions\": [{\"author\": \"ANDREW S. OLDHAM, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-50650 Document: 00515026469 Page: 1 Date Filed: 07/09/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 18-50650 FILED\\n July 9, 2019\\n Lyle W. Cayce\\nMIDCAP MEDIA FINANCE, L.L.C., Clerk\\n\\n Plaintiff-Appellee Cross-Appellant,\\n\\nv.\\n\\nPATHWAY DATA, INCORPORATED, doing business as Consumer Direct,\\n\\n Defendant-Appellant Cross-Appellee.\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore CLEMENT, DUNCAN, and OLDHAM, Circuit Judges.\\nANDREW S. OLDHAM, Circuit Judge:\\n This appeal involves a contract dispute that pits MidCap Media Finance,\\nL.L.C., against Pathway Data, Inc., and Pathway’s CEO, David Coulter. But\\nwe cannot reach the merits because the parties have failed to establish\\ndiversity of citizenship. We remand to allow the district court to consider\\nadditional evidence regarding jurisdiction.\\n I.\\n MidCap agreed to loan Pathway up to $1.5 million for online advertising\\nunder the Media Financing, Security and Assignment Agreement (the\\n“Agreement”). Coulter executed a Guaranty of Repayment (the “Guaranty”)\\nthat personally obligated him to pay MidCap damages in certain\\n\\f Case: 18-50650 Document: 00515026469 Page: 2 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-50650\\ncircumstances. When Pathway stopped making the required periodic\\npayments and refused to repay the outstanding amount—despite receiving a\\nnotice to cure and a default notice—MidCap sued Pathway and Coulter.\\nPathway asserted counterclaims and defenses.\\n After a bench trial, the trial court concluded Pathway breached the\\nAgreement and awarded damages to MidCap. The trial court, however, found\\nCoulter was not personally liable for those damages under the Guaranty.\\nPathway appealed the trial court’s determination that MidCap did not\\nmaterially breach the Agreement. MidCap cross-appealed, contending the\\ntrial court erred in concluding Coulter was not personally liable.\\n II.\\n In their opening appellate briefs, the parties agreed the district court\\nhad diversity jurisdiction under 28 U.S.C. § 1332. And they said we have\\njurisdiction under 28 U.S.C. § 1291. Notwithstanding the parties’ agreement,\\nwe have an independent obligation to assess our own jurisdiction before\\nexercising the judicial power of the United States. See, e.g., Ruhrgas AG v.\\nMarathon Oil Co., 526 U.S. 574, 583 (1999).\\n When we did so at the outset of this case, we could not find proper\\nallegations or evidence of the parties’ citizenship. So we asked for and received\\nsupplemental briefs on the issue. We are now convinced the evidence does not\\nexist in this record.\\n A.\\n Because federal courts have limited jurisdiction, parties must make\\n“clear, distinct, and precise affirmative jurisdictional allegations” in their\\npleadings. Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1259 (5th Cir.\\n1988). To properly allege diversity jurisdiction under § 1332, the parties need\\nto allege “complete diversity.” McLaughlin v. Miss. Power Co., 376 F.3d 344,\\n353 (5th Cir. 2004) (per curiam). That means “all persons on one side of the\\n 2\\n\\f Case: 18-50650 Document: 00515026469 Page: 3 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-50650\\ncontroversy [must] be citizens of different states than all persons on the other\\nside.” Ibid. (quotation omitted).\\n The difference between citizenship and residency is a frequent source of\\nconfusion. For individuals, “citizenship has the same meaning as domicile,”\\nand “the place of residence is prima facie the domicile.” Stine v. Moore, 213\\nF.2d 446, 448 (5th Cir. 1954). Nevertheless, “[c]itizenship and residence, as\\noften declared by this court, are not synonymous terms.” Robertson v. Cease,\\n97 U.S. 646, 648 (1878). Citizenship requires not only “[r]esidence in fact” but\\nalso “the purpose to make the place of residence one’s home.” Texas v. Florida,\\n306 U.S. 398, 424 (1939). Therefore, an allegation of residency alone “does not\\nsatisfy the requirement of an allegation of citizenship.” Strain v. Harrelson\\nRubber Co., 742 F.2d 888, 889 (5th Cir. 1984) (per curiam).\\n This distinction is not empty formalism. Take for example the Supreme\\nCourt’s decision in Robertson v. Cease. Robertson was a citizen of Texas. But\\nthe complaint relied on Cease’s residency instead of his citizenship:\\n [T]here is no allegation as to the citizenship of Cease. The\\n averment as to him is, that he resides in the county of Mason and\\n State of Illinois. It is, however, claimed by counsel to be apparent,\\n or to be fairly inferred from certain documents or papers copied\\n into the transcript, that Cease was, at the commencement of the\\n action, a citizen of Illinois.\\n97 U.S. at 647 (quotation omitted). One of the documents was Cease’s\\ndeposition in which he described his “residence” as “Mason County, Illinois.”\\nIbid. The Supreme Court held that was insufficient to prove citizenship,\\nreversed a final judgment, and ordered a new trial. Id. at 651.\\n The rules regarding non-natural persons are equally unforgiving. A\\ncorporation is “a citizen of every State and foreign state by which it has been\\nincorporated and of the State or foreign state where it has its principal place\\nof business.” 28 U.S.C. § 1332(c)(1). Accordingly, “allegations regarding the\\ncitizenship of a corporation must set out the principal place of business of the\\n 3\\n\\f Case: 18-50650 Document: 00515026469 Page: 4 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-50650\\ncorporation as well as the state of its incorporation.” Neeley v. Bankers Tr. Co.\\nof Tex., 757 F.2d 621, 634 n.18 (5th Cir. 1985). In contrast, “the citizenship of\\na[n] LLC is determined by the citizenship of all of its members.” Harvey v.\\nGrey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008). So, to establish\\ndiversity jurisdiction, a party “must specifically allege the citizenship of every\\nmember of every LLC.” Settlement Funding, L.L.C. v. Rapid Settlements, Ltd.,\\n851 F.3d 530, 536 (5th Cir. 2017).\\n The parties in this case failed to properly allege diversity of citizenship.\\nFirst, they alleged only that Coulter was a California resident, not that he was\\na California citizen. See Robertson, 97 U.S. at 647–48; Strain, 742 F.2d at 889;\\nStine, 213 F.2d at 448. Second, because MidCap is an LLC, the pleadings\\nneeded to identify MidCap’s members and allege their citizenship. See Harvey,\\n542 F.3d at 1080. The parties, however, alleged only that MidCap was\\n“organized and existing under the laws of the State of Texas and had its\\nprincipal place of business” in Texas. They did at least properly allege\\nPathway’s place of incorporation (Nevada) and principal place of business\\n(California). But establishing the citizenship of one party is insufficient to\\ndemonstrate complete diversity under § 1332. See McLaughlin, 376 F.3d at\\n353.\\n B.\\n The parties cannot fix that problem here. True, we can allow parties to\\namend defective jurisdictional allegations on appeal under 28 U.S.C. § 1653.\\nSee Molett v. Penrod Drilling Co., 872 F.2d 1221, 1228 (5th Cir. 1989) (per\\ncuriam) (collecting cases). But § 1653 “addresses only incorrect statements\\nabout jurisdiction that actually exists”; it doesn’t provide a mechanism for\\nparties to remedy “defects in the jurisdictional facts themselves.” Newman-\\nGreen, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 831 (1989). In other words, § 1653\\nallows us to “overlook [a party’s] failure to plead diversity if [a party] can\\n 4\\n\\f Case: 18-50650 Document: 00515026469 Page: 5 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-50650\\nidentify allegations and evidence in the record demonstrating diversity.”\\nHowery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001) (emphasis added).\\nIf, on the other hand, “there is no evidence of diversity on the record, we cannot\\nfind diversity jurisdiction, and we must dismiss the action for lack of\\njurisdiction.” Id. at 920 (emphasis added).\\n What should we do if there is some evidence that jurisdiction exists, but\\nit’s not conclusive? It depends. * “Where . . . jurisdiction is not clear from the\\nrecord, but there is some reason to believe that jurisdiction exists, the Court\\nmay remand the case to the district court for amendment of the allegations and\\nfor the record to be supplemented.” Molett, 872 F.2d at 1228. Alternatively,\\nwe have taken judicial notice of jurisdictional facts “not subject to reasonable\\ndispute” from certain sources such as public filings with state agencies. See\\nSwindol v. Aurora Flight Sciences Corp., 805 F.3d 516, 519 (5th Cir. 2015)\\n(quoting FED. R. EVID. 201(b)).\\n Here we must remand. After we called attention to this issue in our\\nsupplemental briefing order, MidCap insisted that Coulter is a citizen of\\nCalifornia. But underscoring the general confusion over what that term\\nmeans, MidCap cites only:\\n • The original complaint, which alleges Coulter “resides and works in\\n Riverside County, California”;\\n • Pathway’s answer and amended answer, which said Coulter “resided\\n in Riverside County, California and worked in Orange County,\\n California”;\\n • Coulter’s testimony at trial, which said “I live in California”;\\n\\n\\n\\n * Of course, how much evidence is required also depends on the stage of litigation.\\nCitizenship issues, like every “factual issue necessary to support subject matter jurisdiction[,]\\n‘must be supported in the same way as any other matter on which the plaintiff bears the\\nburden of proof, i.e., with the manner and degree of evidence required at the successive stages\\nof the litigation.’ ” Sharkey v. Quarantillo, 541 F.3d 75, 83 (2d Cir. 2008) (quoting Lujan v.\\nDefs. of Wildlife, 504 U.S. 555, 561 (1992)).\\n 5\\n\\f Case: 18-50650 Document: 00515026469 Page: 6 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-50650\\n • Letters mailed to Coulter’s business office in California—which say\\n nothing about where he resides, much less where he’s domiciled; and\\n • Pathway’s admission that Coulter “may be served at his principal\\n place of business” in California—which again, says nothing about\\n where he resides much less where he’s domiciled.\\nEmphases added.\\n We need not decide whether the parties can cure the Coulter allegations\\non appeal because we hold the proof of MidCap’s citizenship fails. MidCap is\\nan LLC, so we look for the citizenship of its members. It has two. The first is\\nJeff Black who, we’re told, is a citizen of Texas. But the only record evidence\\nMidCap cites to prove that jurisdictional fact is an email signature block that\\nlists Jeff Black’s position at a different LLC and a Texas address for that LLC.\\nThat’s insufficient.\\n MidCap’s second member is MidCap Media LLC (“Media”). MidCap cites\\na mixture of record evidence and new exhibits containing public tax filings to\\ntrace the membership interests of Media through a variety of still more LLCs\\nto the ultimate interest owners: Jeff Black and Joe Black. And MidCap asks\\nus to consider new exhibits attached to its supplemental briefing that include\\ndeclarations claiming Jeff and Joe are Texas and Georgia citizens respectively.\\n We cannot. True, we can take judicial notice of MidCap’s members based\\non the public tax filings in its exhibits. See FED. R. EVID. 201; Swindol, 805\\nF.3d at 519. But we agree with Pathway that it would be improper for us to\\nconsider the Blacks’ declarations. Since at least 1878, the Supreme Court has\\nprohibited us from receiving jurisdictional evidence on appeal. See Robertson,\\n97 U.S. at 648 (refusing to consider documents that “clearly do not constitute\\nany legitimate part of the record” below). Rule 201 does not change that\\nprohibition. See Bd. of Miss. Levee Comm’rs v. EPA, 674 F.3d 409, 417 n.4 (5th\\nCir. 2012) (“[A] party may not avoid the rule against supplementing the record\\nwith a document not before the district court by requesting that the appellate\\n 6\\n\\f Case: 18-50650 Document: 00515026469 Page: 7 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-50650\\ncourt take judicial notice of the document.”). Nor does § 1653; that provision\\nauthorizes us to correct “formal mistakes,” not “to receive new evidence.”\\nNadler v. Am. Motors Sales Corp., 764 F.2d 409, 413 (5th Cir. 1985) (quotation\\nomitted); accord Jebaco, Inc. v. Harrah’s Operating Co., 587 F.3d 314, 323 (5th\\nCir. 2009) (explaining that, if the Court granted a motion to amend the\\npleadings under § 1653, it would still need to remand so jurisdictional facts\\ncould be established before the district court); Stafford v. Mobil Oil Corp., 945\\nF.2d 803, 805–06 (5th Cir. 1991) (denying motion to amend under § 1653 where\\nthe defect was not “merely one of form, rather than one of substance,” because\\nthe record below was “insufficient to factually establish diversity jurisdiction”);\\nStrain, 742 F.2d at 890 & n.2 (remanding a case back to the district court to\\ndetermine “whether jurisdictional grounds exist” because “we do not sit to\\nreceive new evidence” and must “conform[ ] to our role as an appellate\\ntribunal”); cf. Schwarz v. Folloder, 767 F.2d 125, 128 n.2 (5th Cir. 1985)\\n(rejecting parties’ attempt to attach a new affidavit as an appendix to their\\nbrief as an improper “attempt to introduce new evidence on appeal”).\\n MidCap says it can establish jurisdiction under Warren v. Bank of\\nAmerica, 717 F. App’x 474 (5th Cir. 2018) (per curiam), and Burdett v.\\nRemington Arms Co., 854 F.3d 733 (5th Cir. 2017), because the Blacks’\\ndeclarations are undisputed. But the Blacks’ declarations are disputed. In\\nfact, Pathway filed a motion to strike them because it “has never heard of Joe\\nBlack and has not had an opportunity to investigate, take discovery[,] or\\notherwise be in a position to dispute new purported facts presented for the first\\ntime on appeal.” We therefore need not consider whether Burdett or Warren\\npurported to change our decades-long interpretation that § 1653 does not allow\\nus to receive new evidence of jurisdictional facts.\\n We cannot use § 1653 to supplement the record with the Blacks’\\ndeclarations regarding their citizenship. Because our jurisdiction remains\\n 7\\n\\f Case: 18-50650 Document: 00515026469 Page: 8 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-50650\\nunclear, “but there is some reason to believe that jurisdiction exists,” we\\n“remand the case to the district court for amendment of the allegations and for\\nthe record to be supplemented.” Molett, 872 F.2d at 1228.\\n * * *\\n The state courts have general jurisdiction. Federal ones do not. And the\\nStates’ courthouse doors are open to contract disputes like this one regardless\\nof the parties’ citizenship. Federal ones are not. Respect for the state system\\nand the strictly circumscribed nature of federal jurisdiction requires our\\nunflagging attention to these limits. We expect the same unflagging attention\\nfrom litigants who invoke our jurisdiction. We REMAND to the district court\\nto determine whether it has diversity jurisdiction, and we DENY the pending\\nmotion to strike as MOOT.\\n\\n\\n\\n\\n 8\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4414976/\", \"author_raw\": \"ANDREW S. OLDHAM, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"CLEMENT"},"judge2":{"kind":"string","value":"DUNCAN"},"judge3":{"kind":"string","value":"OLDHAM"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4637723/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: MIDCAP MEDIA FINANCE, L.L.C., Plaintiff-Appellee Cross-Appellant, v. PATHWAY DATA, INCORPORATED, Doing Business as Consumer Direct, Defendant-Appellant Cross-Appellee.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-09\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-50650 Document: 00515026469 Page: 1 Date Filed: 07/09/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n\n No. 18-50650 FILED\n July 9, 2019\n Lyle W. Cayce\nMIDCAP MEDIA FINANCE, L.L.C., Clerk\n\n Plaintiff-Appellee Cross-Appellant,\n\nv.\n\nPATHWAY DATA, INCORPORATED, doing business as Consumer Direct,\n\n Defendant-Appellant Cross-Appellee.\n\n\n\n\n Appeals from the United States District Court\n for the Western District of Texas\n\n\nBefore CLEMENT, DUNCAN, and OLDHAM, Circuit Judges.\nANDREW S. OLDHAM, Circuit Judge:\n This appeal involves a contract dispute that pits MidCap Media Finance,\nL.L.C., against Pathway Data, Inc., and Pathway’s CEO, David Coulter. But\nwe cannot reach the merits because the parties have failed to establish\ndiversity of citizenship. We remand to allow the district court to consider\nadditional evidence regarding jurisdiction.\n I.\n MidCap agreed to loan Pathway up to $1.5 million for online advertising\nunder the Media Financing, Security and Assignment Agreement (the\n“Agreement”). Coulter executed a Guaranty of Repayment (the “Guaranty”)\nthat personally obligated him to pay MidCap damages in certain\n\f Case: 18-50650 Document: 00515026469 Page: 2 Date Filed: 07/09/2019\n\n\n\n No. 18-50650\ncircumstances. When Pathway stopped making the required periodic\npayments and refused to repay the outstanding amount—despite receiving a\nnotice to cure and a default notice—MidCap sued Pathway and Coulter.\nPathway asserted counterclaims and defenses.\n After a bench trial, the trial court concluded Pathway breached the\nAgreement and awarded damages to MidCap. The trial court, however, found\nCoulter was not personally liable for those damages under the Guaranty.\nPathway appealed the trial court’s determination that MidCap did not\nmaterially breach the Agreement. MidCap cross-appealed, contending the\ntrial court erred in concluding Coulter was not personally liable.\n II.\n In their opening appellate briefs, the parties agreed the district court\nhad diversity jurisdiction under 28 U.S.C. § 1332. And they said we have\njurisdiction under 28 U.S.C. § 1291. Notwithstanding the parties’ agreement,\nwe have an independent obligation to assess our own jurisdiction before\nexercising the judicial power of the United States. See, e.g., Ruhrgas AG v.\nMarathon Oil Co., 526 U.S. 574, 583 (1999).\n When we did so at the outset of this case, we could not find proper\nallegations or evidence of the parties’ citizenship. So we asked for and received\nsupplemental briefs on the issue. We are now convinced the evidence does not\nexist in this record.\n A.\n Because federal courts have limited jurisdiction, parties must make\n“clear, distinct, and precise affirmative jurisdictional allegations” in their\npleadings. Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1259 (5th Cir.\n1988). To properly allege diversity jurisdiction under § 1332, the parties need\nto allege “complete diversity.” McLaughlin v. Miss. Power Co., 376 F.3d 344,\n353 (5th Cir. 2004) (per curiam). That means “all persons on one side of the\n 2\n\f Case: 18-50650 Document: 00515026469 Page: 3 Date Filed: 07/09/2019\n\n\n\n No. 18-50650\ncontroversy [must] be citizens of different states than all persons on the other\nside.” Ibid. (quotation omitted).\n The difference between citizenship and residency is a frequent source of\nconfusion. For individuals, “citizenship has the same meaning as domicile,”\nand “the place of residence is prima facie the domicile.” Stine v. Moore, 213\nF.2d 446, 448 (5th Cir. 1954). Nevertheless, “[c]itizenship and residence, as\noften declared by this court, are not synonymous terms.” Robertson v. Cease,\n97 U.S. 646, 648 (1878). Citizenship requires not only “[r]esidence in fact” but\nalso “the purpose to make the place of residence one’s home.” Texas v. Florida,\n306 U.S. 398, 424 (1939). Therefore, an allegation of residency alone “does not\nsatisfy the requirement of an allegation of citizenship.” Strain v. Harrelson\nRubber Co., 742 F.2d 888, 889 (5th Cir. 1984) (per curiam).\n This distinction is not empty formalism. Take for example the Supreme\nCourt’s decision in Robertson v. Cease. Robertson was a citizen of Texas. But\nthe complaint relied on Cease’s residency instead of his citizenship:\n [T]here is no allegation as to the citizenship of Cease. The\n averment as to him is, that he resides in the county of Mason and\n State of Illinois. It is, however, claimed by counsel to be apparent,\n or to be fairly inferred from certain documents or papers copied\n into the transcript, that Cease was, at the commencement of the\n action, a citizen of Illinois.\n97 U.S. at 647 (quotation omitted). One of the documents was Cease’s\ndeposition in which he described his “residence” as “Mason County, Illinois.”\nIbid. The Supreme Court held that was insufficient to prove citizenship,\nreversed a final judgment, and ordered a new trial. Id. at 651.\n The rules regarding non-natural persons are equally unforgiving. A\ncorporation is “a citizen of every State and foreign state by which it has been\nincorporated and of the State or foreign state where it has its principal place\nof business.” 28 U.S.C. § 1332(c)(1). Accordingly, “allegations regarding the\ncitizenship of a corporation must set out the principal place of business of the\n 3\n\f Case: 18-50650 Document: 00515026469 Page: 4 Date Filed: 07/09/2019\n\n\n\n No. 18-50650\ncorporation as well as the state of its incorporation.” Neeley v. Bankers Tr. Co.\nof Tex., 757 F.2d 621, 634 n.18 (5th Cir. 1985). In contrast, “the citizenship of\na[n] LLC is determined by the citizenship of all of its members.” Harvey v.\nGrey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008). So, to establish\ndiversity jurisdiction, a party “must specifically allege the citizenship of every\nmember of every LLC.” Settlement Funding, L.L.C. v. Rapid Settlements, Ltd.,\n851 F.3d 530, 536 (5th Cir. 2017).\n The parties in this case failed to properly allege diversity of citizenship.\nFirst, they alleged only that Coulter was a California resident, not that he was\na California citizen. See Robertson, 97 U.S. at 647–48; Strain, 742 F.2d at 889;\nStine, 213 F.2d at 448. Second, because MidCap is an LLC, the pleadings\nneeded to identify MidCap’s members and allege their citizenship. See Harvey,\n542 F.3d at 1080. The parties, however, alleged only that MidCap was\n“organized and existing under the laws of the State of Texas and had its\nprincipal place of business” in Texas. They did at least properly allege\nPathway’s place of incorporation (Nevada) and principal place of business\n(California). But establishing the citizenship of one party is insufficient to\ndemonstrate complete diversity under § 1332. See McLaughlin, 376 F.3d at\n353.\n B.\n The parties cannot fix that problem here. True, we can allow parties to\namend defective jurisdictional allegations on appeal under 28 U.S.C. § 1653.\nSee Molett v. Penrod Drilling Co., 872 F.2d 1221, 1228 (5th Cir. 1989) (per\ncuriam) (collecting cases). But § 1653 “addresses only incorrect statements\nabout jurisdiction that actually exists”; it doesn’t provide a mechanism for\nparties to remedy “defects in the jurisdictional facts themselves.” Newman-\nGreen, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 831 (1989). In other words, § 1653\nallows us to “overlook [a party’s] failure to plead diversity if [a party] can\n 4\n\f Case: 18-50650 Document: 00515026469 Page: 5 Date Filed: 07/09/2019\n\n\n\n No. 18-50650\nidentify allegations and evidence in the record demonstrating diversity.”\nHowery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001) (emphasis added).\nIf, on the other hand, “there is no evidence of diversity on the record, we cannot\nfind diversity jurisdiction, and we must dismiss the action for lack of\njurisdiction.” Id. at 920 (emphasis added).\n What should we do if there is some evidence that jurisdiction exists, but\nit’s not conclusive? It depends. * “Where . . . jurisdiction is not clear from the\nrecord, but there is some reason to believe that jurisdiction exists, the Court\nmay remand the case to the district court for amendment of the allegations and\nfor the record to be supplemented.” Molett, 872 F.2d at 1228. Alternatively,\nwe have taken judicial notice of jurisdictional facts “not subject to reasonable\ndispute” from certain sources such as public filings with state agencies. See\nSwindol v. Aurora Flight Sciences Corp., 805 F.3d 516, 519 (5th Cir. 2015)\n(quoting FED. R. EVID. 201(b)).\n Here we must remand. After we called attention to this issue in our\nsupplemental briefing order, MidCap insisted that Coulter is a citizen of\nCalifornia. But underscoring the general confusion over what that term\nmeans, MidCap cites only:\n • The original complaint, which alleges Coulter “resides and works in\n Riverside County, California”;\n • Pathway’s answer and amended answer, which said Coulter “resided\n in Riverside County, California and worked in Orange County,\n California”;\n • Coulter’s testimony at trial, which said “I live in California”;\n\n\n\n * Of course, how much evidence is required also depends on the stage of litigation.\nCitizenship issues, like every “factual issue necessary to support subject matter jurisdiction[,]\n‘must be supported in the same way as any other matter on which the plaintiff bears the\nburden of proof, i.e., with the manner and degree of evidence required at the successive stages\nof the litigation.’ ” Sharkey v. Quarantillo, 541 F.3d 75, 83 (2d Cir. 2008) (quoting Lujan v.\nDefs. of Wildlife, 504 U.S. 555, 561 (1992)).\n 5\n\f Case: 18-50650 Document: 00515026469 Page: 6 Date Filed: 07/09/2019\n\n\n\n No. 18-50650\n • Letters mailed to Coulter’s business office in California—which say\n nothing about where he resides, much less where he’s domiciled; and\n • Pathway’s admission that Coulter “may be served at his principal\n place of business” in California—which again, says nothing about\n where he resides much less where he’s domiciled.\nEmphases added.\n We need not decide whether the parties can cure the Coulter allegations\non appeal because we hold the proof of MidCap’s citizenship fails. MidCap is\nan LLC, so we look for the citizenship of its members. It has two. The first is\nJeff Black who, we’re told, is a citizen of Texas. But the only record evidence\nMidCap cites to prove that jurisdictional fact is an email signature block that\nlists Jeff Black’s position at a different LLC and a Texas address for that LLC.\nThat’s insufficient.\n MidCap’s second member is MidCap Media LLC (“Media”). MidCap cites\na mixture of record evidence and new exhibits containing public tax filings to\ntrace the membership interests of Media through a variety of still more LLCs\nto the ultimate interest owners: Jeff Black and Joe Black. And MidCap asks\nus to consider new exhibits attached to its supplemental briefing that include\ndeclarations claiming Jeff and Joe are Texas and Georgia citizens respectively.\n We cannot. True, we can take judicial notice of MidCap’s members based\non the public tax filings in its exhibits. See FED. R. EVID. 201; Swindol, 805\nF.3d at 519. But we agree with Pathway that it would be improper for us to\nconsider the Blacks’ declarations. Since at least 1878, the Supreme Court has\nprohibited us from receiving jurisdictional evidence on appeal. See Robertson,\n97 U.S. at 648 (refusing to consider documents that “clearly do not constitute\nany legitimate part of the record” below). Rule 201 does not change that\nprohibition. See Bd. of Miss. Levee Comm’rs v. EPA, 674 F.3d 409, 417 n.4 (5th\nCir. 2012) (“[A] party may not avoid the rule against supplementing the record\nwith a document not before the district court by requesting that the appellate\n 6\n\f Case: 18-50650 Document: 00515026469 Page: 7 Date Filed: 07/09/2019\n\n\n\n No. 18-50650\ncourt take judicial notice of the document.”). Nor does § 1653; that provision\nauthorizes us to correct “formal mistakes,” not “to receive new evidence.”\nNadler v. Am. Motors Sales Corp., 764 F.2d 409, 413 (5th Cir. 1985) (quotation\nomitted); accord Jebaco, Inc. v. Harrah’s Operating Co., 587 F.3d 314, 323 (5th\nCir. 2009) (explaining that, if the Court granted a motion to amend the\npleadings under § 1653, it would still need to remand so jurisdictional facts\ncould be established before the district court); Stafford v. Mobil Oil Corp., 945\nF.2d 803, 805–06 (5th Cir. 1991) (denying motion to amend under § 1653 where\nthe defect was not “merely one of form, rather than one of substance,” because\nthe record below was “insufficient to factually establish diversity jurisdiction”);\nStrain, 742 F.2d at 890 & n.2 (remanding a case back to the district court to\ndetermine “whether jurisdictional grounds exist” because “we do not sit to\nreceive new evidence” and must “conform[ ] to our role as an appellate\ntribunal”); cf. Schwarz v. Folloder, 767 F.2d 125, 128 n.2 (5th Cir. 1985)\n(rejecting parties’ attempt to attach a new affidavit as an appendix to their\nbrief as an improper “attempt to introduce new evidence on appeal”).\n MidCap says it can establish jurisdiction under Warren v. Bank of\nAmerica, 717 F. App’x 474 (5th Cir. 2018) (per curiam), and Burdett v.\nRemington Arms Co., 854 F.3d 733 (5th Cir. 2017), because the Blacks’\ndeclarations are undisputed. But the Blacks’ declarations are disputed. In\nfact, Pathway filed a motion to strike them because it “has never heard of Joe\nBlack and has not had an opportunity to investigate, take discovery[,] or\notherwise be in a position to dispute new purported facts presented for the first\ntime on appeal.” We therefore need not consider whether Burdett or Warren\npurported to change our decades-long interpretation that § 1653 does not allow\nus to receive new evidence of jurisdictional facts.\n We cannot use § 1653 to supplement the record with the Blacks’\ndeclarations regarding their citizenship. Because our jurisdiction remains\n 7\n\f Case: 18-50650 Document: 00515026469 Page: 8 Date Filed: 07/09/2019\n\n\n\n No. 18-50650\nunclear, “but there is some reason to believe that jurisdiction exists,” we\n“remand the case to the district court for amendment of the allegations and for\nthe record to be supplemented.” Molett, 872 F.2d at 1228.\n * * *\n The state courts have general jurisdiction. Federal ones do not. And the\nStates’ courthouse doors are open to contract disputes like this one regardless\nof the parties’ citizenship. Federal ones are not. Respect for the state system\nand the strictly circumscribed nature of federal jurisdiction requires our\nunflagging attention to these limits. We expect the same unflagging attention\nfrom litigants who invoke our jurisdiction. We REMAND to the district court\nto determine whether it has diversity jurisdiction, and we DENY the pending\nmotion to strike as MOOT.\n\n\n\n\n 8\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: MIDCAP MEDIA FINANCE, L.L.C., Plaintiff-Appellee Cross-Appellant, v. PATHWAY DATA, INCORPORATED, Doing Business as Consumer Direct, Defendant-Appellant Cross-Appellee.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-09\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-50650 Document: 00515026469 Page: 1 Date Filed: 07/09/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 18-50650 FILED\\n July 9, 2019\\n Lyle W. Cayce\\nMIDCAP MEDIA FINANCE, L.L.C., Clerk\\n\\n Plaintiff-Appellee Cross-Appellant,\\n\\nv.\\n\\nPATHWAY DATA, INCORPORATED, doing business as Consumer Direct,\\n\\n Defendant-Appellant Cross-Appellee.\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore CLEMENT, DUNCAN, and OLDHAM, Circuit Judges.\\nANDREW S. OLDHAM, Circuit Judge:\\n This appeal involves a contract dispute that pits MidCap Media Finance,\\nL.L.C., against Pathway Data, Inc., and Pathway’s CEO, David Coulter. But\\nwe cannot reach the merits because the parties have failed to establish\\ndiversity of citizenship. We remand to allow the district court to consider\\nadditional evidence regarding jurisdiction.\\n I.\\n MidCap agreed to loan Pathway up to $1.5 million for online advertising\\nunder the Media Financing, Security and Assignment Agreement (the\\n“Agreement”). Coulter executed a Guaranty of Repayment (the “Guaranty”)\\nthat personally obligated him to pay MidCap damages in certain\\n\\f Case: 18-50650 Document: 00515026469 Page: 2 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-50650\\ncircumstances. When Pathway stopped making the required periodic\\npayments and refused to repay the outstanding amount—despite receiving a\\nnotice to cure and a default notice—MidCap sued Pathway and Coulter.\\nPathway asserted counterclaims and defenses.\\n After a bench trial, the trial court concluded Pathway breached the\\nAgreement and awarded damages to MidCap. The trial court, however, found\\nCoulter was not personally liable for those damages under the Guaranty.\\nPathway appealed the trial court’s determination that MidCap did not\\nmaterially breach the Agreement. MidCap cross-appealed, contending the\\ntrial court erred in concluding Coulter was not personally liable.\\n II.\\n In their opening appellate briefs, the parties agreed the district court\\nhad diversity jurisdiction under 28 U.S.C. § 1332. And they said we have\\njurisdiction under 28 U.S.C. § 1291. Notwithstanding the parties’ agreement,\\nwe have an independent obligation to assess our own jurisdiction before\\nexercising the judicial power of the United States. See, e.g., Ruhrgas AG v.\\nMarathon Oil Co., 526 U.S. 574, 583 (1999).\\n When we did so at the outset of this case, we could not find proper\\nallegations or evidence of the parties’ citizenship. So we asked for and received\\nsupplemental briefs on the issue. We are now convinced the evidence does not\\nexist in this record.\\n A.\\n Because federal courts have limited jurisdiction, parties must make\\n“clear, distinct, and precise affirmative jurisdictional allegations” in their\\npleadings. Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1259 (5th Cir.\\n1988). To properly allege diversity jurisdiction under § 1332, the parties need\\nto allege “complete diversity.” McLaughlin v. Miss. Power Co., 376 F.3d 344,\\n353 (5th Cir. 2004) (per curiam). That means “all persons on one side of the\\n 2\\n\\f Case: 18-50650 Document: 00515026469 Page: 3 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-50650\\ncontroversy [must] be citizens of different states than all persons on the other\\nside.” Ibid. (quotation omitted).\\n The difference between citizenship and residency is a frequent source of\\nconfusion. For individuals, “citizenship has the same meaning as domicile,”\\nand “the place of residence is prima facie the domicile.” Stine v. Moore, 213\\nF.2d 446, 448 (5th Cir. 1954). Nevertheless, “[c]itizenship and residence, as\\noften declared by this court, are not synonymous terms.” Robertson v. Cease,\\n97 U.S. 646, 648 (1878). Citizenship requires not only “[r]esidence in fact” but\\nalso “the purpose to make the place of residence one’s home.” Texas v. Florida,\\n306 U.S. 398, 424 (1939). Therefore, an allegation of residency alone “does not\\nsatisfy the requirement of an allegation of citizenship.” Strain v. Harrelson\\nRubber Co., 742 F.2d 888, 889 (5th Cir. 1984) (per curiam).\\n This distinction is not empty formalism. Take for example the Supreme\\nCourt’s decision in Robertson v. Cease. Robertson was a citizen of Texas. But\\nthe complaint relied on Cease’s residency instead of his citizenship:\\n [T]here is no allegation as to the citizenship of Cease. The\\n averment as to him is, that he resides in the county of Mason and\\n State of Illinois. It is, however, claimed by counsel to be apparent,\\n or to be fairly inferred from certain documents or papers copied\\n into the transcript, that Cease was, at the commencement of the\\n action, a citizen of Illinois.\\n97 U.S. at 647 (quotation omitted). One of the documents was Cease’s\\ndeposition in which he described his “residence” as “Mason County, Illinois.”\\nIbid. The Supreme Court held that was insufficient to prove citizenship,\\nreversed a final judgment, and ordered a new trial. Id. at 651.\\n The rules regarding non-natural persons are equally unforgiving. A\\ncorporation is “a citizen of every State and foreign state by which it has been\\nincorporated and of the State or foreign state where it has its principal place\\nof business.” 28 U.S.C. § 1332(c)(1). Accordingly, “allegations regarding the\\ncitizenship of a corporation must set out the principal place of business of the\\n 3\\n\\f Case: 18-50650 Document: 00515026469 Page: 4 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-50650\\ncorporation as well as the state of its incorporation.” Neeley v. Bankers Tr. Co.\\nof Tex., 757 F.2d 621, 634 n.18 (5th Cir. 1985). In contrast, “the citizenship of\\na[n] LLC is determined by the citizenship of all of its members.” Harvey v.\\nGrey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008). So, to establish\\ndiversity jurisdiction, a party “must specifically allege the citizenship of every\\nmember of every LLC.” Settlement Funding, L.L.C. v. Rapid Settlements, Ltd.,\\n851 F.3d 530, 536 (5th Cir. 2017).\\n The parties in this case failed to properly allege diversity of citizenship.\\nFirst, they alleged only that Coulter was a California resident, not that he was\\na California citizen. See Robertson, 97 U.S. at 647–48; Strain, 742 F.2d at 889;\\nStine, 213 F.2d at 448. Second, because MidCap is an LLC, the pleadings\\nneeded to identify MidCap’s members and allege their citizenship. See Harvey,\\n542 F.3d at 1080. The parties, however, alleged only that MidCap was\\n“organized and existing under the laws of the State of Texas and had its\\nprincipal place of business” in Texas. They did at least properly allege\\nPathway’s place of incorporation (Nevada) and principal place of business\\n(California). But establishing the citizenship of one party is insufficient to\\ndemonstrate complete diversity under § 1332. See McLaughlin, 376 F.3d at\\n353.\\n B.\\n The parties cannot fix that problem here. True, we can allow parties to\\namend defective jurisdictional allegations on appeal under 28 U.S.C. § 1653.\\nSee Molett v. Penrod Drilling Co., 872 F.2d 1221, 1228 (5th Cir. 1989) (per\\ncuriam) (collecting cases). But § 1653 “addresses only incorrect statements\\nabout jurisdiction that actually exists”; it doesn’t provide a mechanism for\\nparties to remedy “defects in the jurisdictional facts themselves.” Newman-\\nGreen, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 831 (1989). In other words, § 1653\\nallows us to “overlook [a party’s] failure to plead diversity if [a party] can\\n 4\\n\\f Case: 18-50650 Document: 00515026469 Page: 5 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-50650\\nidentify allegations and evidence in the record demonstrating diversity.”\\nHowery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001) (emphasis added).\\nIf, on the other hand, “there is no evidence of diversity on the record, we cannot\\nfind diversity jurisdiction, and we must dismiss the action for lack of\\njurisdiction.” Id. at 920 (emphasis added).\\n What should we do if there is some evidence that jurisdiction exists, but\\nit’s not conclusive? It depends. * “Where . . . jurisdiction is not clear from the\\nrecord, but there is some reason to believe that jurisdiction exists, the Court\\nmay remand the case to the district court for amendment of the allegations and\\nfor the record to be supplemented.” Molett, 872 F.2d at 1228. Alternatively,\\nwe have taken judicial notice of jurisdictional facts “not subject to reasonable\\ndispute” from certain sources such as public filings with state agencies. See\\nSwindol v. Aurora Flight Sciences Corp., 805 F.3d 516, 519 (5th Cir. 2015)\\n(quoting FED. R. EVID. 201(b)).\\n Here we must remand. After we called attention to this issue in our\\nsupplemental briefing order, MidCap insisted that Coulter is a citizen of\\nCalifornia. But underscoring the general confusion over what that term\\nmeans, MidCap cites only:\\n • The original complaint, which alleges Coulter “resides and works in\\n Riverside County, California”;\\n • Pathway’s answer and amended answer, which said Coulter “resided\\n in Riverside County, California and worked in Orange County,\\n California”;\\n • Coulter’s testimony at trial, which said “I live in California”;\\n\\n\\n\\n * Of course, how much evidence is required also depends on the stage of litigation.\\nCitizenship issues, like every “factual issue necessary to support subject matter jurisdiction[,]\\n‘must be supported in the same way as any other matter on which the plaintiff bears the\\nburden of proof, i.e., with the manner and degree of evidence required at the successive stages\\nof the litigation.’ ” Sharkey v. Quarantillo, 541 F.3d 75, 83 (2d Cir. 2008) (quoting Lujan v.\\nDefs. of Wildlife, 504 U.S. 555, 561 (1992)).\\n 5\\n\\f Case: 18-50650 Document: 00515026469 Page: 6 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-50650\\n • Letters mailed to Coulter’s business office in California—which say\\n nothing about where he resides, much less where he’s domiciled; and\\n • Pathway’s admission that Coulter “may be served at his principal\\n place of business” in California—which again, says nothing about\\n where he resides much less where he’s domiciled.\\nEmphases added.\\n We need not decide whether the parties can cure the Coulter allegations\\non appeal because we hold the proof of MidCap’s citizenship fails. MidCap is\\nan LLC, so we look for the citizenship of its members. It has two. The first is\\nJeff Black who, we’re told, is a citizen of Texas. But the only record evidence\\nMidCap cites to prove that jurisdictional fact is an email signature block that\\nlists Jeff Black’s position at a different LLC and a Texas address for that LLC.\\nThat’s insufficient.\\n MidCap’s second member is MidCap Media LLC (“Media”). MidCap cites\\na mixture of record evidence and new exhibits containing public tax filings to\\ntrace the membership interests of Media through a variety of still more LLCs\\nto the ultimate interest owners: Jeff Black and Joe Black. And MidCap asks\\nus to consider new exhibits attached to its supplemental briefing that include\\ndeclarations claiming Jeff and Joe are Texas and Georgia citizens respectively.\\n We cannot. True, we can take judicial notice of MidCap’s members based\\non the public tax filings in its exhibits. See FED. R. EVID. 201; Swindol, 805\\nF.3d at 519. But we agree with Pathway that it would be improper for us to\\nconsider the Blacks’ declarations. Since at least 1878, the Supreme Court has\\nprohibited us from receiving jurisdictional evidence on appeal. See Robertson,\\n97 U.S. at 648 (refusing to consider documents that “clearly do not constitute\\nany legitimate part of the record” below). Rule 201 does not change that\\nprohibition. See Bd. of Miss. Levee Comm’rs v. EPA, 674 F.3d 409, 417 n.4 (5th\\nCir. 2012) (“[A] party may not avoid the rule against supplementing the record\\nwith a document not before the district court by requesting that the appellate\\n 6\\n\\f Case: 18-50650 Document: 00515026469 Page: 7 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-50650\\ncourt take judicial notice of the document.”). Nor does § 1653; that provision\\nauthorizes us to correct “formal mistakes,” not “to receive new evidence.”\\nNadler v. Am. Motors Sales Corp., 764 F.2d 409, 413 (5th Cir. 1985) (quotation\\nomitted); accord Jebaco, Inc. v. Harrah’s Operating Co., 587 F.3d 314, 323 (5th\\nCir. 2009) (explaining that, if the Court granted a motion to amend the\\npleadings under § 1653, it would still need to remand so jurisdictional facts\\ncould be established before the district court); Stafford v. Mobil Oil Corp., 945\\nF.2d 803, 805–06 (5th Cir. 1991) (denying motion to amend under § 1653 where\\nthe defect was not “merely one of form, rather than one of substance,” because\\nthe record below was “insufficient to factually establish diversity jurisdiction”);\\nStrain, 742 F.2d at 890 & n.2 (remanding a case back to the district court to\\ndetermine “whether jurisdictional grounds exist” because “we do not sit to\\nreceive new evidence” and must “conform[ ] to our role as an appellate\\ntribunal”); cf. Schwarz v. Folloder, 767 F.2d 125, 128 n.2 (5th Cir. 1985)\\n(rejecting parties’ attempt to attach a new affidavit as an appendix to their\\nbrief as an improper “attempt to introduce new evidence on appeal”).\\n MidCap says it can establish jurisdiction under Warren v. Bank of\\nAmerica, 717 F. App’x 474 (5th Cir. 2018) (per curiam), and Burdett v.\\nRemington Arms Co., 854 F.3d 733 (5th Cir. 2017), because the Blacks’\\ndeclarations are undisputed. But the Blacks’ declarations are disputed. In\\nfact, Pathway filed a motion to strike them because it “has never heard of Joe\\nBlack and has not had an opportunity to investigate, take discovery[,] or\\notherwise be in a position to dispute new purported facts presented for the first\\ntime on appeal.” We therefore need not consider whether Burdett or Warren\\npurported to change our decades-long interpretation that § 1653 does not allow\\nus to receive new evidence of jurisdictional facts.\\n We cannot use § 1653 to supplement the record with the Blacks’\\ndeclarations regarding their citizenship. Because our jurisdiction remains\\n 7\\n\\f Case: 18-50650 Document: 00515026469 Page: 8 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-50650\\nunclear, “but there is some reason to believe that jurisdiction exists,” we\\n“remand the case to the district court for amendment of the allegations and for\\nthe record to be supplemented.” Molett, 872 F.2d at 1228.\\n * * *\\n The state courts have general jurisdiction. Federal ones do not. And the\\nStates’ courthouse doors are open to contract disputes like this one regardless\\nof the parties’ citizenship. Federal ones are not. Respect for the state system\\nand the strictly circumscribed nature of federal jurisdiction requires our\\nunflagging attention to these limits. We expect the same unflagging attention\\nfrom litigants who invoke our jurisdiction. We REMAND to the district court\\nto determine whether it has diversity jurisdiction, and we DENY the pending\\nmotion to strike as MOOT.\\n\\n\\n\\n\\n 8\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2988,"cells":{"id":{"kind":"number","value":4637830,"string":"4,637,830"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Norvis Harmon v. Dallas County, Texas"},"decision_date":{"kind":"string","value":"2019-07-09"},"docket_number":{"kind":"string","value":"18-10353"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before REAVLEY, ELROD, and WILLETT, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"Case: 18-10353 Document: 00515027635 Page: 1 Date Filed: 07/09/2019\\n\\n\\n\\n\\n REVISED July 9, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-10353 June 21, 2019\\n Lyle W. Cayce\\n Clerk\\nNORVIS HARMON,\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nDALLAS COUNTY, TEXAS; DERICK EVANS,\\n\\n Defendants - Appellees\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore REAVLEY, ELROD, and WILLETT, Circuit Judges.\\nPER CURIAM:\\n This case is about an employment relationship that did not turn out well.\\nNorvis Harmon, a former deputy constable, brought this action under 42\\nU.S.C. § 1983 against Dallas County and then-Constable Derick Evans. He\\nalleges the defendants violated his First Amendment rights when he was\\nterminated for reporting the illegal acts of Evans and others to law-\\nenforcement authorities. Harmon additionally alleges the defendants denied\\nhim equal protection of the law in refusing to hear his grievance.\\n\\f Case: 18-10353 Document: 00515027635 Page: 2 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-10353\\n This is Harmon’s second lawsuit based on these facts, as he previously\\nfiled a state-court lawsuit against Dallas County aggrieving the circumstances\\nof his termination. He did not enjoy a favorable judgment in that suit.\\n The district court below disposed of Harmon’s claims through a series of\\nsummary-judgment and 12(c) rulings. 1 The district court dismissed Harmon’s\\nclaims against Dallas County as barred by res judicata, 2 and dismissed\\nHarmon’s claims against Evans in his individual capacity on the basis of\\nqualified immunity. 3 For the reasons stated herein, we AFFIRM.\\n I.\\n Harmon is a former deputy constable in Precinct 1 of the Dallas County\\nConstable’s Office. During his employment, Harmon became aware that Evans\\nand his other superiors were up to some not-so-good things, to wit: (1) requiring\\ndeputies to work for Evans’s political allies without pay; (2) requiring deputies\\nto donate time and money to Evans’s re-election campaign; (3) illegally setting\\nquotas for writing traffic citations; and (4) requiring deputies to tow citizens’\\nvehicles after traffic stops, and to do so with a certain towing company with\\nwhom Evans shared a close relationship.\\n In November 2009, Harmon reported these activities to Defenbaugh &\\nAssociates, an investigative firm hired by the Dallas County Commissioner’s\\nCourt. Harmon alleges he made similar reports to the Dallas County Human\\nResources Department, the Dallas County District Attorney, and the Federal\\nBureau of Investigation.\\n\\n\\n\\n\\n 1 See generally Harmon v. Dall. Cty., Tex. (Harmon II), 294 F. Supp. 3d 548 (N.D. Tex.\\n2018); Harmon v. Dall. Cty., Tex., No. 3:13-CV-2083-L, 2017 WL 3394724 (N.D. Tex. Aug. 8,\\n2017) (denying Harmon’s motion to recuse); Harmon v. Dall. Cty., Tex. (Harmon I), 248 F.\\nSupp. 3d 814 (N.D. Tex. 2017).\\n 2 Harmon I, 248 F. Supp. 3d at 822.\\n 3 Id. at 823–24; Harmon II, 294 F. Supp. 3d at 576.\\n\\n 2\\n\\f Case: 18-10353 Document: 00515027635 Page: 3 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-10353\\n Things then went downhill. Word spread that certain deputies were\\nspeaking out, prompting Evans to call a meeting in which he made couched\\nthreats that he would retaliate against those who did. In March 2010, the\\nDallas Morning News published an article describing the results of the\\ninvestigation and confirmed that certain deputies had spoken out against\\nEvans’s illegal activities. 4 Although the article did not identify any of the\\ndeputies by name, a separate investigative report did. 5\\n Evans later initiated an administrative investigation into Harmon and,\\nfinding at least one discrepancy in Harmon’s GPS reports, terminated him\\n(from employment) on June 3, 2011. Harmon tried to grieve his termination to\\nEvans, as his department head, and to Dallas County. These attempts were\\nnot successful, because deputy constables hired after August 19, 2003 are\\nexcluded from the Dallas County Civil Service Commission’s grievance system\\nprocedure. 6 As Harmon was hired in 2008, he did not have grievance rights.\\nSo, Harmon turned to litigation.\\n Harmon first sued Dallas County in Texas state court. He asserted\\nclaims for alleged violations of the Texas Whistleblower Act and Texas\\nGovernment Code § 617.005, 7 and an equal protection violation under the\\n\\n\\n\\n\\n 4 Kevin Krause & Ed Timms, Report: Dallas County Constable Derick Evans May Have\\nBroken Law With Re-election Raffles, Not Paying Deputies For Off-duty Work, DALLASNEWS\\n(March 2010), https://www.dallasnews.com/news/crime/2010/03/04/Report-Dallas-County-\\nConstable-Derick-9350.\\n 5 Evans was eventually convicted for engaging in organized criminal activity. The\\n\\nconviction was affirmed on appeal. Evans v. State, No. 05-12-01179-CR, 2014 WL 1415093,\\nat *1 (Tex. App.—Dallas Mar. 28, 2014, pet. ref’d).\\n 6 See DALLAS CTY., TEX., CODE OF ORDINANCES ch. 86, art. I, § 86.1(1) (“Category A\\n\\nemployee includes . . . deputy constables hired after August 19, 2003 . . . . [C]ategory A\\nclassified employees are excluded from coverage afforded in employment procedures relating\\nto job posting, reduction-in-force, double-fill, reinstatement, reemployment, dismissals, right\\nof appeal, and grievance system procedures of this Code.”).\\n 7 TEX. GOV’T CODE § 617.005 (“This chapter does not impair the right of public\\n\\nemployees to present grievances concerning their wages, hours of employment, or conditions\\n 3\\n\\f Case: 18-10353 Document: 00515027635 Page: 4 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-10353\\nTexas Constitution. In addition, Harmon sought injunctive relief and\\ndeclaratory relief in connection with his equal protection claim, and a\\ndeclaration that Evans’s actions were “illegal and void.” Evans was not a party\\nto the state-court action.\\n The County moved to dismiss Harmon’s suit for lack of subject-matter\\njurisdiction, arguing that governmental immunity barred Harmon’s\\nconstitutional claims, as well as those brought under the Whistleblower Act\\nand Local Government Code. The County also argued that Harmon’s requests\\nfor injunctive and declaratory relief embraced ultra vires acts that could only\\nbe asserted against Evans, who was not a party to the suit. The court agreed\\nwith the County, dismissed Harmon’s claims with prejudice, and granted\\nHarmon the opportunity to replead his claims for declaratory and injunctive\\nrelief. Harmon did not, and the state court eventually entered final judgment\\ndisposing of all claims and parties on November 7, 2013.\\n Harmon brought his second suit in federal court, asserting two claims\\nunder § 1983: (1) a retaliation claim under the First Amendment, and (2) an\\nequal protection claim based on the denial of his right to petition the\\ngovernment. In addition to suing the County (again), Harmon also sued Evans\\nin both his individual and official capacities. Evans asserted the defense of\\nqualified immunity, so the district court ordered Harmon to file a Rule 7(a)\\nreply. Afterwards, Evans filed a Rule 12(c) motion for judgment on the\\npleadings based on his qualified-immunity defense, and both defendants later\\nfiled a limited motion for summary judgment asserting that res judicata barred\\nHarmon’s federal suit. 8\\n\\n\\n\\n\\nof work either individually or through a representative that does not claim the right to\\nstrike.”).\\n 8 We have simplified the motion practice before the district court.\\n\\n 4\\n\\f Case: 18-10353 Document: 00515027635 Page: 5 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-10353\\n The district court held that res judicata barred Harmon’s suit as to the\\nCounty and Evans in his official capacity, and then granted Evans’s Rule 12(c)\\nmotion on the basis of qualified immunity as to Harmon’s First Amendment\\nretaliation claim. 9 Harmon, however—and to the apparent surprise of the\\ndistrict court and the parties—argued that he still had lingering claims under\\nthe First Amendment’s Petition Clause. The district court granted Evans the\\nopportunity to file a dispositive motion on those claims, 10 and then granted his\\nmotion when he did. 11 Harmon timely appealed.\\n II.\\n Harmon brings three issues on appeal. He first argues that res judicata\\ndoes not apply to this case. Next, he argues the district court erred in granting\\nEvans qualified immunity on his First Amendment retaliation claim because\\nhis right to engage in the speech at issue was clearly established at the time of\\nhis termination. Finally, Harmon contends the district court was wrong to\\ngrant Evans qualified immunity on his claims under the First Amendment’s\\nPetition Clause. We address each in turn.\\n III.\\n We apply Texas law to determine the res judicata effect of a Texas\\njudgment, and our review is de novo. Sims v. City of Madisonville, 894 F.3d\\n632, 644 (5th Cir. 2018); Cox. v. Nueces Cty., Tex., 839 F.3d 418, 420–21 (5th\\nCir. 2016). Under Texas law, res judicata requires “(1) a prior final judgment\\non the merits by a court of competent jurisdiction; (2) identity of parties or\\n\\n\\n\\n\\n 9 Harmon I, 248 F. Supp. 3d at 818 n.5, 825.\\n 10 Id. at 825 (“The court is, therefore, dismayed with Plaintiff’s recent assertion\\nregarding a ‘First Amendment Petition Claim,’ as this litigation that has been pending four\\nyears. Out of fairness to Evans, the court will allow him to file a dispositive motion regarding\\nthis claim by April 28, 2017.”).\\n 11 Harmon II, 294 F. Supp. 3d at 576 (granting Evans’s summary-judgment motion on\\n\\nthe basis of qualified immunity).\\n 5\\n\\f Case: 18-10353 Document: 00515027635 Page: 6 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-10353\\nthose in privity with them; and (3) a second action based on the same claims\\nas were raised or could have been raised in the first action.” Amstadt v. U.S.\\nBrass Corp., 919 S.W.2d 644, 652 (Tex. 1996). Applying these principles, we\\nconclude that res judicata bars Harmon’s claims against the County and Evans\\nin his official capacity, but not as to Evans in his individual capacity.\\n The first element is met because, under Texas law, a dismissal based on\\ngovernmental immunity constitutes a final judgment on the merits for\\npurposes of res judicata. See Sims v. City of Madisonville, 894 F.3d 632, 644\\n(5th Cir. 2018) (“We have held that, under Texas law, a grant of a plea to the\\njurisdiction is a dismissal on the merits for purpose of res judicata.”); Klein v.\\nWalker, 708 F. App’x. 158, 160 (5th Cir. 2017) (unpublished) (“[A] dismissal on\\nimmunity grounds under Texas law is a dismissal on the merits for purposes\\nof res judicata.”). As mentioned, the state court dismissed Harmon’s claims\\nwith prejudice based on the County’s assertion that it was entitled to\\ngovernmental immunity and later entered a final judgment disposing of all\\nclaims and parties. This element is met.\\n The third element presents an easy solve under Texas’s “transactional”\\napproach. “Under this approach, a judgment in an earlier suit ‘precludes a\\nsecond action by the parties and their privies not only on matters actually\\nlitigated, but also on causes of action or defenses which arise out of the same\\nsubject matter and which might have been litigated in the first suit.’” Getty Oil\\nCo. v. Ins. Co. of N. Am., 845 S.W.2d 794, 798 (Tex. 1992) (citation omitted). In\\nthis case, both of Harmon’s suits arise from the same operative facts and\\nsubject matter—Harmon’s allegedly unlawful termination and his inability to\\nfile a grievance. See Sims, 894 F.3d at 645. And, as the district court observed,\\nnothing prevented Harmon from bringing his federal claims in state court. See\\nid. We conclude this element is also met.\\n\\n\\n 6\\n\\f Case: 18-10353 Document: 00515027635 Page: 7 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-10353\\n Stepping back, the second element—privity—presents a closer question,\\nbut our decision in Warnock v. Pecos County, Texas, 116 F.3d 776 (5th Cir.\\n1997) supplies the answer. 12 Warnock stands for the basic proposition that\\nprivity does not exist between a governmental entity and an employee later\\nsued in his or her individual capacity. See id. at 778. The plaintiff in Warnock\\nalleged that two state district court judges retaliated against her for\\nwhistleblowing. Although her initial state-court suit against the county was\\nunsuccessful, the plaintiff later filed suit in federal court against the county\\nand the judges in their official and individual capacities. Id. at 777. The district\\ncourt concluded that res judicata barred suit against the judges in both\\ncapacities, but we disagreed, holding that privity was lacking “between the\\ncounty and judges in their individual capacities.” Id. at 778. We cited to Conner\\nv. Reinhard for support, in which the Seventh Circuit explained that “a city\\nofficial sued in his official capacity is generally in privity with the\\nmunicipality,” but that “[a] government official sued in his personal capacity,\\nhowever, presents a different case.” 847 F.2d 384, 394–95 (7th Cir. 1988). The\\nreasons for drawing this distinction are legion:\\n If the plaintiff prevails against the official, the official must satisfy\\n the judgment out of his own pocket, rather than having the\\n government entity pay the damages. See Kentucky v. Graham, 473\\n U.S. 159, 166, 105 S. Ct. 3099, 3105, 87 L.Ed.2d 114 (1985). In\\n addition, different legal theories may be necessary to prove\\n liability in a personal-capacity, as opposed to an official-capacity,\\n case. Also, different defenses are available to a defendant who is\\n sued in his personal capacity. Therefore, courts do not generally\\n consider an official sued in his personal capacity as being in privity\\n with the government.\\n\\n\\n\\n\\n 12 There is no question this element is satisfied as to the County, as it was a party in\\nthe prior suit.\\n 7\\n\\f Case: 18-10353 Document: 00515027635 Page: 8 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-10353\\nId. at 395 (some citations omitted); see 18A Charles A. Wright & Arthur R.\\nMiller, Federal Practice and Procedure § 4458 (3d ed. 1998) (“The relationships\\nbetween a government and its officials justify preclusion only as to litigation\\nundertaken in an official capacity.”). 13 To that end, district courts in this circuit\\nhave applied Warnock to circumstances analogous to those at hand. See Benson\\nv. City of Texas City, Tex., No. 3:13-CV-23, 2014 WL 948901, at *4 (S.D. Tex.\\nMar. 11, 2014) (Costa, J.) (“The defendants argue that the Court should look\\n‘pragmatically’ at the privity issue by deciding whether the parties are\\n‘sufficiently close.’ But Warnock makes clear that defendants sued in their\\nindividual capacities are not ‘sufficiently close’ to their public employers for the\\nlogical reason that they both have different defenses.”). Thus, res judicata does\\nnot bar Harmon’s individual-capacity claims against Evans.\\n But we agree with the district court that res judicata bars any official-\\ncapacity claims against Evans. An official-capacity claim, after all, is\\nessentially a claim against the County. See Turner v. Houma Mun. Fire &\\nPolice Civil Serv. Bd., 229 F.3d 478, 485 (5th Cir. 2000) (observing that when\\n“a defendant government official is sued in his individual and official capacity,\\nand the city or state is also sued,” the “official-capacity claims and the claims\\nagainst the governmental entity essentially merge”); Olibas v. Dodson, 593 F.\\nApp’x 412, 413 (5th Cir. 2015) (unpublished) (“[I]t is well-settled that claims\\nagainst a municipal official in his official capacity are claims against the\\ncounty. . . . Therefore, we need not consider the County separate from the\\nSheriff in his official capacity.” (citation omitted)); Lewis v. Pugh, 289 F. App’x\\n767, 771 (5th Cir. 2008) (unpublished). Thus, because res judicata bars\\n\\n\\n 13See also McLellan v. Perry, 672 F. App’x 690, 691 (9th Cir. 2016) (“[P]rivity exists\\nbetween the agency and Defendant Wright, who is sued in his official capacity; but privity\\ndoes not exist between the agency and the other three Defendants, who are sued in their\\nindividual capacities.”); Headley v. Bacon, 828 F.2d 1272, 1279 (8th Cir. 1987) (“[A] judgment\\nagainst a government does not bind its officials sued in their personal capacities.”).\\n 8\\n\\f Case: 18-10353 Document: 00515027635 Page: 9 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-10353\\nHarmon’s claims against the County, it also bars Harmon’s official-capacity\\nclaims against Evans. However, because res judicata does not bar Harmon’s\\nindividual-capacity claims, we proceed, as did the district court, to the merits.\\n IV.\\n Harmon alleges he was terminated in retaliation for engaging in\\nprotected speech under the First Amendment. Evans, in a Rule 12(c) motion,\\nasserted the defense of qualified immunity. After ordering supplemental\\nbriefing on this point, the district court held that the law regarding Harmon’s\\nspeech was not clearly established at the time of his termination and thus\\nEvans was entitled to qualified immunity on Harmon’s retaliation claim. 14\\n We review de novo a district court’s ruling on a Rule 12(c) motion for\\njudgment on the pleadings asserting qualified immunity. Johnson v. Halstead,\\n916 F.3d. 410, 416 (5th Cir. 2019). “A ‘plausibility’ standard determines\\nwhether the plaintiff has pled sufficient facts to defeat a motion to dismiss.”\\nId. (citation omitted). “When the defendant asserts qualified immunity, the\\ncourt can order the plaintiff to submit a reply, refuting the immunity claim\\n‘with factual detail and particularity.’” Id. The plaintiff’s reply “‘must be\\ntailored to the assertion of qualified immunity and fairly engage its\\n\\n\\n\\n 14 This case was originally before then-Chief Judge Solis, who denied Evans’s\\nqualified-immunity defense. Harmon v. Dall. Cty., No. 3:13-CV-2083-P, 2015 WL 13672837,\\nat *4 (N.D. Tex. Dec. 1, 2015) (“The Court is convinced that every reasonable official would\\nhave understood such retaliation to be in violation of Harmon’s statutory or constitutional\\nrights.”). After Judge Solis retired, the case was reassigned to Judge Lindsay, who sua sponte\\nrevisited this issue. Judge Lindsay vacated that prior order, concluding that the law\\nregarding Harmon’s speech was not clearly established at the time of his termination.\\nBecause the denial of qualified immunity is an interlocutory order, the court was free to\\nrevisit and request further briefing on that issue. See Lavespere v. Niagara Mach. & Tool\\nWorks, Inc., 910 F.2d 167, 185 (5th Cir. 1990) (“[B]ecause the denial of a motion for summary\\njudgment is an interlocutory order, the trial court is free to reconsider and reverse its decision\\nfor any reason it deems sufficient, even in the absence of new evidence or an intervening\\nchange in or clarification of the substantive law.”), abrogated on other grounds, Little v.\\nLiquid Air Corp., 37 F.3d 1069 (5th Cir. 1994).\\n\\n 9\\n\\f Case: 18-10353 Document: 00515027635 Page: 10 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-10353\\nallegations.’” Id. (quoting Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir.\\n1995)).\\n “To evaluate whether a government official is entitled to qualified\\nimmunity, we conduct a two-prong inquiry: we ask (1) whether the undisputed\\nfacts and the disputed facts, accepting the plaintiffs’ version of the disputed\\nfacts as true, constitute a violation of a constitutional right, and (2) whether\\nthe defendant’s conduct was objectively reasonable in light of clearly\\nestablished law.” Carroll v. Ellington, 800 F.3d 154, 169 (5th Cir. 2015)\\n(quoting Thompson v. Upshur Cty., Tex., 245 F.3d 447, 457 (5th Cir. 2001)).\\n“We have discretion to address either prong first without necessarily\\naddressing the other.” Id.\\n To establish a claim for retaliation under the First Amendment, a\\nplaintiff must show, inter alia, that he “spoke as a citizen on a matter of public\\nconcern.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006); Anderson v. Valdez,\\n845 F.3d 580, 590 (5th Cir. 2016). Although reporting municipal corruption\\nundoubtedly constitutes speech on a matter of public concern, 15 Garcetti\\ninstructs to “first decide whether the plaintiff was speaking as a citizen\\ndisassociated with his public duties, or whether the plaintiff was speaking in\\nfurtherance of the duties of his or her public employment.” Howell v. Town of\\nBall, 827 F.3d 515, 522–23 (5th Cir. 2016). When public employees engage in\\nspeech pursuant to their official duties, they “are not speaking as citizens for\\nFirst Amendment purposes, and the Constitution does not insulate their\\ncommunications from employer discipline.” Garcetti, 547 U.S. at 421. In 2014,\\n\\n\\n\\n 15 See Lane v. Franks, 573 U.S. 228, 241 (2014) (“The content of Lane’s testimony—\\ncorruption in a public program and misuse of state funds—obviously involves a matter of\\nsignificant public concern.”); Garcetti, 547 U.S. at 425 (“Exposing governmental inefficiency\\nand misconduct is a matter of considerable significance.”); Markos v. City of Atlanta, Tex.,\\n364 F.3d 567, 574 (5th Cir. 2004) (“In this case, we have a public employee speaking out about\\nalleged corruption in the police department, a subject undoubtedly of public concern.”).\\n 10\\n\\f Case: 18-10353 Document: 00515027635 Page: 11 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-10353\\nthe Supreme Court emphasized that “[t]he critical question under Garcetti is\\nwhether the speech at issue is itself ordinarily within the scope of an\\nemployee’s duties, not whether it merely concerns those duties.” Lane, 573 U.S.\\nat 240.\\n We applied these principles in Howell v. Town of Ball, which we find\\ncontrolling. In Howell, we held that a Louisiana police officer’s confidential\\ninvolvement with an FBI-led investigation into the illegal acts of the mayor\\nand other local officials was not “in furtherance of his ordinary job duties.” 827\\nF.3d at 524. Although we agreed the police officer’s First Amendment rights\\nwere violated when he was terminated in retaliation for cooperating with the\\nFBI’s investigation, we ultimately concluded the defendants were entitled to\\nqualified immunity because, at the time of the officer’s termination, “it was not\\nclearly established whether his involvement in the FBI investigation was\\nprotected under the First Amendment.” Id. at 525. We explained that:\\n At the time that Howell was fired, Garcetti’s distinction between\\n speech made pursuant to official duties and speech made as a\\n private citizen was relatively new, and this court had not\\n considered it in the context of an action involving a police officer’s\\n statements to an outside law enforcement agency, or in the context\\n of a law enforcement officer’s assistance with an outside agency’s\\n investigation. Garcetti, by its own admission, did not “articulate a\\n comprehensive framework for defining the scope of an employee’s\\n duties in cases where there is room for serious debate.” See 547\\n U.S. at 424, 126 S. Ct. 1951. Furthermore, the Supreme Court did\\n not emphasize that only speech made in furtherance of an\\n employee’s “ordinary” job duties is not protected until nearly three\\n years after Howell was discharged.\\n The lack of the application of Garcetti to similar facts at the time\\n of Howell’s discharge, coupled with the Supreme Court’s only\\n recent clarification of Garcetti’s citizen/employee distinction\\n in Lane, compels us to hold that the Board defendants did not\\n violate a “clearly established” constitutional right when voting to\\n fire Howell. We thus affirm the district court’s grant of qualified\\n immunity to the Board defendants.\\n 11\\n\\f Case: 18-10353 Document: 00515027635 Page: 12 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-10353\\n\\n\\nId. 525–26 (some internal citations omitted).\\n The parties here essentially agree that Harmon alleges a violation of his\\nFirst Amendment rights; indeed, Evans concedes—ultimately to his\\nadvantage, of course—that “the facts in Howell are identical to the speech at\\nissue in this case.” And Harmon alleges that it was not part of his ordinary\\nduties as a deputy constable to report the illegal acts of his supervisors to\\ninvestigators, the FBI, and other authorities. Even so, Harmon’s termination\\noccurred just one month prior to the officer’s termination in Howell, where we\\nheld that it was not clearly established whether a law enforcement officer’s\\ninvolvement in an investigation with outside law-enforcement enjoyed\\nprotection under the First Amendment. Accordingly, the same result in Howell\\nmust obtain here. 16 We thus agree with the district court that Evans is entitled\\nto qualified immunity on Harmon’s First Amendment retaliation claim.\\n V.\\n Finally, we address Harmon’s claims under the First Amendment’s\\nPetition Clause, which “protects ‘the right of the people . . . to petition the\\nGovernment for a redress of grievances.’” Borough of Duryea, Pa. v. Guarnieri,\\n564 U.S. 379, 382 (2011) (quoting U.S. CONST. AMEND I.).\\n\\n\\n\\n\\n 16 Harmon directs us to Cutler v. Stephen F. Austin State University in support of his\\nargument that the law regarding his speech was clearly protected at the time of his\\ntermination. 767 F.3d 462, 472 (5th Cir. 2014) (“Several pre–2010 decisions have, however,\\ngiven the Defendants the ‘fair warning’ they need.”). However, whether the law was clearly-\\nestablished at the time of Harmon’s termination requires us to consider the specific context\\nof the case. See Anderson v. Valdez, 913 F.3d 472, 476 (5th Cir. 2019) (“[W]e are ‘not to define\\nclearly established law at a high level of generality,’ but rather are to pay close attention to\\n‘the specific context of the case.’” (citation omitted)). Cutler did not involve a law-enforcement\\nofficer’s reporting the illegal acts of his superior to outside law-enforcement authorities, so\\nwe follow Howell.\\n 12\\n\\f Case: 18-10353 Document: 00515027635 Page: 13 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-10353\\n As best we can tell, Harmon attempts to bring two “petition” claims. 17\\nThe first appears to be a straight-up petition claim based on Evans’s refusal to\\nhear his grievance; that is, Harmon alleges that Evans’s refusal to hear his\\ngrievance violated his “fundamental” right to petition the government.\\nHarmon’s second claim appears to be an equal-protection variant and is\\nsimilarly based upon Evans’s refusal to hear his grievance. We address each in\\nturn. 18\\n Harmon’s first theory fails for the very basic reason that his attempted\\ngrievance involved a matter of private concern. Indeed, “[i]f a public employee\\npetitions as an employee on a matter of purely private concern, the\\nemployee’s First Amendment interest must give way, as it does in speech\\ncases.” Id. at 398. To be clear, Harmon’s speech—his reporting illegal conduct,\\nwhich is a matter of public concern—is not at issue here; rather, the issue\\nconcerns Harmon’s grievance. By its very nature, however, an employee’s\\ngrievance from termination will not ordinarily constitute a matter of public\\nconcern. See id. (“A petition filed with an employer using an internal grievance\\nprocedure in many cases will not seek to communicate to the public or to\\nadvance a political or social point of view beyond the employment context.”);\\nGibson v. Kilpatrick, 838 F.3d 476, 487 (5th Cir. 2016) (“Internal personnel\\ndisputes and management decisions are rarely a matter of public concern.”).\\nWe think the district court said it well:\\n There is no evidence that Harmon was using the petition appealing\\n his employment termination as a platform to publicly air his\\n\\n\\n 17 Harmon gears much of his Petition Clause arguments towards Dallas County and\\nits decision to exclude deputy constables hired before August 19, 2003 from its grievance\\nsystem. Because we hold that res judicata bars Harmon’s claims against the County and\\nEvans in his official capacity, we do not address these arguments.\\n 18 The district court held that Harmon’s Petition Clause claims were not properly\\n\\nbefore the court but nevertheless addressed them on the merits. We limit our analysis here\\nto the merits.\\n 13\\n\\f Case: 18-10353 Document: 00515027635 Page: 14 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-10353\\n concerns about Evans’s conduct. He, instead, was merely using the\\n petition to appeal the termination of his employment as any\\n employee, private or public, would do. In other words, the point of\\n Harmon’s appeal was not to present concerns about Evans’s\\n conduct but to seek reinstatement of his employment as deputy\\n constable with the County.\\n\\nHarmon II, 294 F. Supp. 3d at 571. In addition, that Harmon’s remaining claim\\nhere is against Evans in his individual capacity—and thus seeks damages from\\nhim personally—underscores our conviction that Harmon’s attempt to grieve\\nhis termination with Evans constituted but a matter of private concern. See\\nGibson, 838 F.3d at 487 (“The form of Gibson’s suit—personal capacity—\\nprovides significant support for the conclusion that it was not a matter of public\\nconcern.”). Finding no violation of Harmon’s First Amendment right to\\npetition, we agree with the district court that Evans was entitled to qualified\\nimmunity on this claim.\\n To succeed on his equal protection claim, Harmon must show that “two\\nor more classifications of similarly situated persons were treated differently.”\\nGallegos-Hernandez v. United States, 688 F.3d 190, 195 (5th Cir. 2012).\\nHarmon, however, alleges in his Rule 7(a) reply that Evans “had a policy and/or\\na regular practice to not hear grievances of employees, including grievances by\\ndeputy constables.” Thus, Harmon does not allege that Evans treated similarly\\nsituated deputy constables differently; to the contrary, Harmon alleges that\\nEvans’s regular practice was to refuse grievances all together, and his equal\\nprotection claim fails for that reason. The district court did not err in granting\\nEvans qualified immunity on this claim.\\n AFFIRMED.\\n\\n\\n\\n\\n 14\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4415083/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"REAVLEY"},"judge2":{"kind":"string","value":"ELROD"},"judge3":{"kind":"string","value":"WILLETT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"REAVLEY\": \", Circuit\", \"ELROD\": \", Circuit\", \"WILLETT\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4637830/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Norvis Harmon v. Dallas County, Texas\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-09\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-10353 Document: 00515027635 Page: 1 Date Filed: 07/09/2019\n\n\n\n\n REVISED July 9, 2019\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 18-10353 June 21, 2019\n Lyle W. Cayce\n Clerk\nNORVIS HARMON,\n\n Plaintiff - Appellant\n\nv.\n\nDALLAS COUNTY, TEXAS; DERICK EVANS,\n\n Defendants - Appellees\n\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n\n\nBefore REAVLEY, ELROD, and WILLETT, Circuit Judges.\nPER CURIAM:\n This case is about an employment relationship that did not turn out well.\nNorvis Harmon, a former deputy constable, brought this action under 42\nU.S.C. § 1983 against Dallas County and then-Constable Derick Evans. He\nalleges the defendants violated his First Amendment rights when he was\nterminated for reporting the illegal acts of Evans and others to law-\nenforcement authorities. Harmon additionally alleges the defendants denied\nhim equal protection of the law in refusing to hear his grievance.\n\f Case: 18-10353 Document: 00515027635 Page: 2 Date Filed: 07/09/2019\n\n\n\n No. 18-10353\n This is Harmon’s second lawsuit based on these facts, as he previously\nfiled a state-court lawsuit against Dallas County aggrieving the circumstances\nof his termination. He did not enjoy a favorable judgment in that suit.\n The district court below disposed of Harmon’s claims through a series of\nsummary-judgment and 12(c) rulings. 1 The district court dismissed Harmon’s\nclaims against Dallas County as barred by res judicata, 2 and dismissed\nHarmon’s claims against Evans in his individual capacity on the basis of\nqualified immunity. 3 For the reasons stated herein, we AFFIRM.\n I.\n Harmon is a former deputy constable in Precinct 1 of the Dallas County\nConstable’s Office. During his employment, Harmon became aware that Evans\nand his other superiors were up to some not-so-good things, to wit: (1) requiring\ndeputies to work for Evans’s political allies without pay; (2) requiring deputies\nto donate time and money to Evans’s re-election campaign; (3) illegally setting\nquotas for writing traffic citations; and (4) requiring deputies to tow citizens’\nvehicles after traffic stops, and to do so with a certain towing company with\nwhom Evans shared a close relationship.\n In November 2009, Harmon reported these activities to Defenbaugh &\nAssociates, an investigative firm hired by the Dallas County Commissioner’s\nCourt. Harmon alleges he made similar reports to the Dallas County Human\nResources Department, the Dallas County District Attorney, and the Federal\nBureau of Investigation.\n\n\n\n\n 1 See generally Harmon v. Dall. Cty., Tex. (Harmon II), 294 F. Supp. 3d 548 (N.D. Tex.\n2018); Harmon v. Dall. Cty., Tex., No. 3:13-CV-2083-L, 2017 WL 3394724 (N.D. Tex. Aug. 8,\n2017) (denying Harmon’s motion to recuse); Harmon v. Dall. Cty., Tex. (Harmon I), 248 F.\nSupp. 3d 814 (N.D. Tex. 2017).\n 2 Harmon I, 248 F. Supp. 3d at 822.\n 3 Id. at 823–24; Harmon II, 294 F. Supp. 3d at 576.\n\n 2\n\f Case: 18-10353 Document: 00515027635 Page: 3 Date Filed: 07/09/2019\n\n\n\n No. 18-10353\n Things then went downhill. Word spread that certain deputies were\nspeaking out, prompting Evans to call a meeting in which he made couched\nthreats that he would retaliate against those who did. In March 2010, the\nDallas Morning News published an article describing the results of the\ninvestigation and confirmed that certain deputies had spoken out against\nEvans’s illegal activities. 4 Although the article did not identify any of the\ndeputies by name, a separate investigative report did. 5\n Evans later initiated an administrative investigation into Harmon and,\nfinding at least one discrepancy in Harmon’s GPS reports, terminated him\n(from employment) on June 3, 2011. Harmon tried to grieve his termination to\nEvans, as his department head, and to Dallas County. These attempts were\nnot successful, because deputy constables hired after August 19, 2003 are\nexcluded from the Dallas County Civil Service Commission’s grievance system\nprocedure. 6 As Harmon was hired in 2008, he did not have grievance rights.\nSo, Harmon turned to litigation.\n Harmon first sued Dallas County in Texas state court. He asserted\nclaims for alleged violations of the Texas Whistleblower Act and Texas\nGovernment Code § 617.005, 7 and an equal protection violation under the\n\n\n\n\n 4 Kevin Krause & Ed Timms, Report: Dallas County Constable Derick Evans May Have\nBroken Law With Re-election Raffles, Not Paying Deputies For Off-duty Work, DALLASNEWS\n(March 2010), https://www.dallasnews.com/news/crime/2010/03/04/Report-Dallas-County-\nConstable-Derick-9350.\n 5 Evans was eventually convicted for engaging in organized criminal activity. The\n\nconviction was affirmed on appeal. Evans v. State, No. 05-12-01179-CR, 2014 WL 1415093,\nat *1 (Tex. App.—Dallas Mar. 28, 2014, pet. ref’d).\n 6 See DALLAS CTY., TEX., CODE OF ORDINANCES ch. 86, art. I, § 86.1(1) (“Category A\n\nemployee includes . . . deputy constables hired after August 19, 2003 . . . . [C]ategory A\nclassified employees are excluded from coverage afforded in employment procedures relating\nto job posting, reduction-in-force, double-fill, reinstatement, reemployment, dismissals, right\nof appeal, and grievance system procedures of this Code.”).\n 7 TEX. GOV’T CODE § 617.005 (“This chapter does not impair the right of public\n\nemployees to present grievances concerning their wages, hours of employment, or conditions\n 3\n\f Case: 18-10353 Document: 00515027635 Page: 4 Date Filed: 07/09/2019\n\n\n\n No. 18-10353\nTexas Constitution. In addition, Harmon sought injunctive relief and\ndeclaratory relief in connection with his equal protection claim, and a\ndeclaration that Evans’s actions were “illegal and void.” Evans was not a party\nto the state-court action.\n The County moved to dismiss Harmon’s suit for lack of subject-matter\njurisdiction, arguing that governmental immunity barred Harmon’s\nconstitutional claims, as well as those brought under the Whistleblower Act\nand Local Government Code. The County also argued that Harmon’s requests\nfor injunctive and declaratory relief embraced ultra vires acts that could only\nbe asserted against Evans, who was not a party to the suit. The court agreed\nwith the County, dismissed Harmon’s claims with prejudice, and granted\nHarmon the opportunity to replead his claims for declaratory and injunctive\nrelief. Harmon did not, and the state court eventually entered final judgment\ndisposing of all claims and parties on November 7, 2013.\n Harmon brought his second suit in federal court, asserting two claims\nunder § 1983: (1) a retaliation claim under the First Amendment, and (2) an\nequal protection claim based on the denial of his right to petition the\ngovernment. In addition to suing the County (again), Harmon also sued Evans\nin both his individual and official capacities. Evans asserted the defense of\nqualified immunity, so the district court ordered Harmon to file a Rule 7(a)\nreply. Afterwards, Evans filed a Rule 12(c) motion for judgment on the\npleadings based on his qualified-immunity defense, and both defendants later\nfiled a limited motion for summary judgment asserting that res judicata barred\nHarmon’s federal suit. 8\n\n\n\n\nof work either individually or through a representative that does not claim the right to\nstrike.”).\n 8 We have simplified the motion practice before the district court.\n\n 4\n\f Case: 18-10353 Document: 00515027635 Page: 5 Date Filed: 07/09/2019\n\n\n\n No. 18-10353\n The district court held that res judicata barred Harmon’s suit as to the\nCounty and Evans in his official capacity, and then granted Evans’s Rule 12(c)\nmotion on the basis of qualified immunity as to Harmon’s First Amendment\nretaliation claim. 9 Harmon, however—and to the apparent surprise of the\ndistrict court and the parties—argued that he still had lingering claims under\nthe First Amendment’s Petition Clause. The district court granted Evans the\nopportunity to file a dispositive motion on those claims, 10 and then granted his\nmotion when he did. 11 Harmon timely appealed.\n II.\n Harmon brings three issues on appeal. He first argues that res judicata\ndoes not apply to this case. Next, he argues the district court erred in granting\nEvans qualified immunity on his First Amendment retaliation claim because\nhis right to engage in the speech at issue was clearly established at the time of\nhis termination. Finally, Harmon contends the district court was wrong to\ngrant Evans qualified immunity on his claims under the First Amendment’s\nPetition Clause. We address each in turn.\n III.\n We apply Texas law to determine the res judicata effect of a Texas\njudgment, and our review is de novo. Sims v. City of Madisonville, 894 F.3d\n632, 644 (5th Cir. 2018); Cox. v. Nueces Cty., Tex., 839 F.3d 418, 420–21 (5th\nCir. 2016). Under Texas law, res judicata requires “(1) a prior final judgment\non the merits by a court of competent jurisdiction; (2) identity of parties or\n\n\n\n\n 9 Harmon I, 248 F. Supp. 3d at 818 n.5, 825.\n 10 Id. at 825 (“The court is, therefore, dismayed with Plaintiff’s recent assertion\nregarding a ‘First Amendment Petition Claim,’ as this litigation that has been pending four\nyears. Out of fairness to Evans, the court will allow him to file a dispositive motion regarding\nthis claim by April 28, 2017.”).\n 11 Harmon II, 294 F. Supp. 3d at 576 (granting Evans’s summary-judgment motion on\n\nthe basis of qualified immunity).\n 5\n\f Case: 18-10353 Document: 00515027635 Page: 6 Date Filed: 07/09/2019\n\n\n\n No. 18-10353\nthose in privity with them; and (3) a second action based on the same claims\nas were raised or could have been raised in the first action.” Amstadt v. U.S.\nBrass Corp., 919 S.W.2d 644, 652 (Tex. 1996). Applying these principles, we\nconclude that res judicata bars Harmon’s claims against the County and Evans\nin his official capacity, but not as to Evans in his individual capacity.\n The first element is met because, under Texas law, a dismissal based on\ngovernmental immunity constitutes a final judgment on the merits for\npurposes of res judicata. See Sims v. City of Madisonville, 894 F.3d 632, 644\n(5th Cir. 2018) (“We have held that, under Texas law, a grant of a plea to the\njurisdiction is a dismissal on the merits for purpose of res judicata.”); Klein v.\nWalker, 708 F. App’x. 158, 160 (5th Cir. 2017) (unpublished) (“[A] dismissal on\nimmunity grounds under Texas law is a dismissal on the merits for purposes\nof res judicata.”). As mentioned, the state court dismissed Harmon’s claims\nwith prejudice based on the County’s assertion that it was entitled to\ngovernmental immunity and later entered a final judgment disposing of all\nclaims and parties. This element is met.\n The third element presents an easy solve under Texas’s “transactional”\napproach. “Under this approach, a judgment in an earlier suit ‘precludes a\nsecond action by the parties and their privies not only on matters actually\nlitigated, but also on causes of action or defenses which arise out of the same\nsubject matter and which might have been litigated in the first suit.’” Getty Oil\nCo. v. Ins. Co. of N. Am., 845 S.W.2d 794, 798 (Tex. 1992) (citation omitted). In\nthis case, both of Harmon’s suits arise from the same operative facts and\nsubject matter—Harmon’s allegedly unlawful termination and his inability to\nfile a grievance. See Sims, 894 F.3d at 645. And, as the district court observed,\nnothing prevented Harmon from bringing his federal claims in state court. See\nid. We conclude this element is also met.\n\n\n 6\n\f Case: 18-10353 Document: 00515027635 Page: 7 Date Filed: 07/09/2019\n\n\n\n No. 18-10353\n Stepping back, the second element—privity—presents a closer question,\nbut our decision in Warnock v. Pecos County, Texas, 116 F.3d 776 (5th Cir.\n1997) supplies the answer. 12 Warnock stands for the basic proposition that\nprivity does not exist between a governmental entity and an employee later\nsued in his or her individual capacity. See id. at 778. The plaintiff in Warnock\nalleged that two state district court judges retaliated against her for\nwhistleblowing. Although her initial state-court suit against the county was\nunsuccessful, the plaintiff later filed suit in federal court against the county\nand the judges in their official and individual capacities. Id. at 777. The district\ncourt concluded that res judicata barred suit against the judges in both\ncapacities, but we disagreed, holding that privity was lacking “between the\ncounty and judges in their individual capacities.” Id. at 778. We cited to Conner\nv. Reinhard for support, in which the Seventh Circuit explained that “a city\nofficial sued in his official capacity is generally in privity with the\nmunicipality,” but that “[a] government official sued in his personal capacity,\nhowever, presents a different case.” 847 F.2d 384, 394–95 (7th Cir. 1988). The\nreasons for drawing this distinction are legion:\n If the plaintiff prevails against the official, the official must satisfy\n the judgment out of his own pocket, rather than having the\n government entity pay the damages. See Kentucky v. Graham, 473\n U.S. 159, 166, 105 S. Ct. 3099, 3105, 87 L.Ed.2d 114 (1985). In\n addition, different legal theories may be necessary to prove\n liability in a personal-capacity, as opposed to an official-capacity,\n case. Also, different defenses are available to a defendant who is\n sued in his personal capacity. Therefore, courts do not generally\n consider an official sued in his personal capacity as being in privity\n with the government.\n\n\n\n\n 12 There is no question this element is satisfied as to the County, as it was a party in\nthe prior suit.\n 7\n\f Case: 18-10353 Document: 00515027635 Page: 8 Date Filed: 07/09/2019\n\n\n\n No. 18-10353\nId. at 395 (some citations omitted); see 18A Charles A. Wright & Arthur R.\nMiller, Federal Practice and Procedure § 4458 (3d ed. 1998) (“The relationships\nbetween a government and its officials justify preclusion only as to litigation\nundertaken in an official capacity.”). 13 To that end, district courts in this circuit\nhave applied Warnock to circumstances analogous to those at hand. See Benson\nv. City of Texas City, Tex., No. 3:13-CV-23, 2014 WL 948901, at *4 (S.D. Tex.\nMar. 11, 2014) (Costa, J.) (“The defendants argue that the Court should look\n‘pragmatically’ at the privity issue by deciding whether the parties are\n‘sufficiently close.’ But Warnock makes clear that defendants sued in their\nindividual capacities are not ‘sufficiently close’ to their public employers for the\nlogical reason that they both have different defenses.”). Thus, res judicata does\nnot bar Harmon’s individual-capacity claims against Evans.\n But we agree with the district court that res judicata bars any official-\ncapacity claims against Evans. An official-capacity claim, after all, is\nessentially a claim against the County. See Turner v. Houma Mun. Fire &\nPolice Civil Serv. Bd., 229 F.3d 478, 485 (5th Cir. 2000) (observing that when\n“a defendant government official is sued in his individual and official capacity,\nand the city or state is also sued,” the “official-capacity claims and the claims\nagainst the governmental entity essentially merge”); Olibas v. Dodson, 593 F.\nApp’x 412, 413 (5th Cir. 2015) (unpublished) (“[I]t is well-settled that claims\nagainst a municipal official in his official capacity are claims against the\ncounty. . . . Therefore, we need not consider the County separate from the\nSheriff in his official capacity.” (citation omitted)); Lewis v. Pugh, 289 F. App’x\n767, 771 (5th Cir. 2008) (unpublished). Thus, because res judicata bars\n\n\n 13See also McLellan v. Perry, 672 F. App’x 690, 691 (9th Cir. 2016) (“[P]rivity exists\nbetween the agency and Defendant Wright, who is sued in his official capacity; but privity\ndoes not exist between the agency and the other three Defendants, who are sued in their\nindividual capacities.”); Headley v. Bacon, 828 F.2d 1272, 1279 (8th Cir. 1987) (“[A] judgment\nagainst a government does not bind its officials sued in their personal capacities.”).\n 8\n\f Case: 18-10353 Document: 00515027635 Page: 9 Date Filed: 07/09/2019\n\n\n\n No. 18-10353\nHarmon’s claims against the County, it also bars Harmon’s official-capacity\nclaims against Evans. However, because res judicata does not bar Harmon’s\nindividual-capacity claims, we proceed, as did the district court, to the merits.\n IV.\n Harmon alleges he was terminated in retaliation for engaging in\nprotected speech under the First Amendment. Evans, in a Rule 12(c) motion,\nasserted the defense of qualified immunity. After ordering supplemental\nbriefing on this point, the district court held that the law regarding Harmon’s\nspeech was not clearly established at the time of his termination and thus\nEvans was entitled to qualified immunity on Harmon’s retaliation claim. 14\n We review de novo a district court’s ruling on a Rule 12(c) motion for\njudgment on the pleadings asserting qualified immunity. Johnson v. Halstead,\n916 F.3d. 410, 416 (5th Cir. 2019). “A ‘plausibility’ standard determines\nwhether the plaintiff has pled sufficient facts to defeat a motion to dismiss.”\nId. (citation omitted). “When the defendant asserts qualified immunity, the\ncourt can order the plaintiff to submit a reply, refuting the immunity claim\n‘with factual detail and particularity.’” Id. The plaintiff’s reply “‘must be\ntailored to the assertion of qualified immunity and fairly engage its\n\n\n\n 14 This case was originally before then-Chief Judge Solis, who denied Evans’s\nqualified-immunity defense. Harmon v. Dall. Cty., No. 3:13-CV-2083-P, 2015 WL 13672837,\nat *4 (N.D. Tex. Dec. 1, 2015) (“The Court is convinced that every reasonable official would\nhave understood such retaliation to be in violation of Harmon’s statutory or constitutional\nrights.”). After Judge Solis retired, the case was reassigned to Judge Lindsay, who sua sponte\nrevisited this issue. Judge Lindsay vacated that prior order, concluding that the law\nregarding Harmon’s speech was not clearly established at the time of his termination.\nBecause the denial of qualified immunity is an interlocutory order, the court was free to\nrevisit and request further briefing on that issue. See Lavespere v. Niagara Mach. & Tool\nWorks, Inc., 910 F.2d 167, 185 (5th Cir. 1990) (“[B]ecause the denial of a motion for summary\njudgment is an interlocutory order, the trial court is free to reconsider and reverse its decision\nfor any reason it deems sufficient, even in the absence of new evidence or an intervening\nchange in or clarification of the substantive law.”), abrogated on other grounds, Little v.\nLiquid Air Corp., 37 F.3d 1069 (5th Cir. 1994).\n\n 9\n\f Case: 18-10353 Document: 00515027635 Page: 10 Date Filed: 07/09/2019\n\n\n\n No. 18-10353\nallegations.’” Id. (quoting Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir.\n1995)).\n “To evaluate whether a government official is entitled to qualified\nimmunity, we conduct a two-prong inquiry: we ask (1) whether the undisputed\nfacts and the disputed facts, accepting the plaintiffs’ version of the disputed\nfacts as true, constitute a violation of a constitutional right, and (2) whether\nthe defendant’s conduct was objectively reasonable in light of clearly\nestablished law.” Carroll v. Ellington, 800 F.3d 154, 169 (5th Cir. 2015)\n(quoting Thompson v. Upshur Cty., Tex., 245 F.3d 447, 457 (5th Cir. 2001)).\n“We have discretion to address either prong first without necessarily\naddressing the other.” Id.\n To establish a claim for retaliation under the First Amendment, a\nplaintiff must show, inter alia, that he “spoke as a citizen on a matter of public\nconcern.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006); Anderson v. Valdez,\n845 F.3d 580, 590 (5th Cir. 2016). Although reporting municipal corruption\nundoubtedly constitutes speech on a matter of public concern, 15 Garcetti\ninstructs to “first decide whether the plaintiff was speaking as a citizen\ndisassociated with his public duties, or whether the plaintiff was speaking in\nfurtherance of the duties of his or her public employment.” Howell v. Town of\nBall, 827 F.3d 515, 522–23 (5th Cir. 2016). When public employees engage in\nspeech pursuant to their official duties, they “are not speaking as citizens for\nFirst Amendment purposes, and the Constitution does not insulate their\ncommunications from employer discipline.” Garcetti, 547 U.S. at 421. In 2014,\n\n\n\n 15 See Lane v. Franks, 573 U.S. 228, 241 (2014) (“The content of Lane’s testimony—\ncorruption in a public program and misuse of state funds—obviously involves a matter of\nsignificant public concern.”); Garcetti, 547 U.S. at 425 (“Exposing governmental inefficiency\nand misconduct is a matter of considerable significance.”); Markos v. City of Atlanta, Tex.,\n364 F.3d 567, 574 (5th Cir. 2004) (“In this case, we have a public employee speaking out about\nalleged corruption in the police department, a subject undoubtedly of public concern.”).\n 10\n\f Case: 18-10353 Document: 00515027635 Page: 11 Date Filed: 07/09/2019\n\n\n\n No. 18-10353\nthe Supreme Court emphasized that “[t]he critical question under Garcetti is\nwhether the speech at issue is itself ordinarily within the scope of an\nemployee’s duties, not whether it merely concerns those duties.” Lane, 573 U.S.\nat 240.\n We applied these principles in Howell v. Town of Ball, which we find\ncontrolling. In Howell, we held that a Louisiana police officer’s confidential\ninvolvement with an FBI-led investigation into the illegal acts of the mayor\nand other local officials was not “in furtherance of his ordinary job duties.” 827\nF.3d at 524. Although we agreed the police officer’s First Amendment rights\nwere violated when he was terminated in retaliation for cooperating with the\nFBI’s investigation, we ultimately concluded the defendants were entitled to\nqualified immunity because, at the time of the officer’s termination, “it was not\nclearly established whether his involvement in the FBI investigation was\nprotected under the First Amendment.” Id. at 525. We explained that:\n At the time that Howell was fired, Garcetti’s distinction between\n speech made pursuant to official duties and speech made as a\n private citizen was relatively new, and this court had not\n considered it in the context of an action involving a police officer’s\n statements to an outside law enforcement agency, or in the context\n of a law enforcement officer’s assistance with an outside agency’s\n investigation. Garcetti, by its own admission, did not “articulate a\n comprehensive framework for defining the scope of an employee’s\n duties in cases where there is room for serious debate.” See 547\n U.S. at 424, 126 S. Ct. 1951. Furthermore, the Supreme Court did\n not emphasize that only speech made in furtherance of an\n employee’s “ordinary” job duties is not protected until nearly three\n years after Howell was discharged.\n The lack of the application of Garcetti to similar facts at the time\n of Howell’s discharge, coupled with the Supreme Court’s only\n recent clarification of Garcetti’s citizen/employee distinction\n in Lane, compels us to hold that the Board defendants did not\n violate a “clearly established” constitutional right when voting to\n fire Howell. We thus affirm the district court’s grant of qualified\n immunity to the Board defendants.\n 11\n\f Case: 18-10353 Document: 00515027635 Page: 12 Date Filed: 07/09/2019\n\n\n\n No. 18-10353\n\n\nId. 525–26 (some internal citations omitted).\n The parties here essentially agree that Harmon alleges a violation of his\nFirst Amendment rights; indeed, Evans concedes—ultimately to his\nadvantage, of course—that “the facts in Howell are identical to the speech at\nissue in this case.” And Harmon alleges that it was not part of his ordinary\nduties as a deputy constable to report the illegal acts of his supervisors to\ninvestigators, the FBI, and other authorities. Even so, Harmon’s termination\noccurred just one month prior to the officer’s termination in Howell, where we\nheld that it was not clearly established whether a law enforcement officer’s\ninvolvement in an investigation with outside law-enforcement enjoyed\nprotection under the First Amendment. Accordingly, the same result in Howell\nmust obtain here. 16 We thus agree with the district court that Evans is entitled\nto qualified immunity on Harmon’s First Amendment retaliation claim.\n V.\n Finally, we address Harmon’s claims under the First Amendment’s\nPetition Clause, which “protects ‘the right of the people . . . to petition the\nGovernment for a redress of grievances.’” Borough of Duryea, Pa. v. Guarnieri,\n564 U.S. 379, 382 (2011) (quoting U.S. CONST. AMEND I.).\n\n\n\n\n 16 Harmon directs us to Cutler v. Stephen F. Austin State University in support of his\nargument that the law regarding his speech was clearly protected at the time of his\ntermination. 767 F.3d 462, 472 (5th Cir. 2014) (“Several pre–2010 decisions have, however,\ngiven the Defendants the ‘fair warning’ they need.”). However, whether the law was clearly-\nestablished at the time of Harmon’s termination requires us to consider the specific context\nof the case. See Anderson v. Valdez, 913 F.3d 472, 476 (5th Cir. 2019) (“[W]e are ‘not to define\nclearly established law at a high level of generality,’ but rather are to pay close attention to\n‘the specific context of the case.’” (citation omitted)). Cutler did not involve a law-enforcement\nofficer’s reporting the illegal acts of his superior to outside law-enforcement authorities, so\nwe follow Howell.\n 12\n\f Case: 18-10353 Document: 00515027635 Page: 13 Date Filed: 07/09/2019\n\n\n\n No. 18-10353\n As best we can tell, Harmon attempts to bring two “petition” claims. 17\nThe first appears to be a straight-up petition claim based on Evans’s refusal to\nhear his grievance; that is, Harmon alleges that Evans’s refusal to hear his\ngrievance violated his “fundamental” right to petition the government.\nHarmon’s second claim appears to be an equal-protection variant and is\nsimilarly based upon Evans’s refusal to hear his grievance. We address each in\nturn. 18\n Harmon’s first theory fails for the very basic reason that his attempted\ngrievance involved a matter of private concern. Indeed, “[i]f a public employee\npetitions as an employee on a matter of purely private concern, the\nemployee’s First Amendment interest must give way, as it does in speech\ncases.” Id. at 398. To be clear, Harmon’s speech—his reporting illegal conduct,\nwhich is a matter of public concern—is not at issue here; rather, the issue\nconcerns Harmon’s grievance. By its very nature, however, an employee’s\ngrievance from termination will not ordinarily constitute a matter of public\nconcern. See id. (“A petition filed with an employer using an internal grievance\nprocedure in many cases will not seek to communicate to the public or to\nadvance a political or social point of view beyond the employment context.”);\nGibson v. Kilpatrick, 838 F.3d 476, 487 (5th Cir. 2016) (“Internal personnel\ndisputes and management decisions are rarely a matter of public concern.”).\nWe think the district court said it well:\n There is no evidence that Harmon was using the petition appealing\n his employment termination as a platform to publicly air his\n\n\n 17 Harmon gears much of his Petition Clause arguments towards Dallas County and\nits decision to exclude deputy constables hired before August 19, 2003 from its grievance\nsystem. Because we hold that res judicata bars Harmon’s claims against the County and\nEvans in his official capacity, we do not address these arguments.\n 18 The district court held that Harmon’s Petition Clause claims were not properly\n\nbefore the court but nevertheless addressed them on the merits. We limit our analysis here\nto the merits.\n 13\n\f Case: 18-10353 Document: 00515027635 Page: 14 Date Filed: 07/09/2019\n\n\n\n No. 18-10353\n concerns about Evans’s conduct. He, instead, was merely using the\n petition to appeal the termination of his employment as any\n employee, private or public, would do. In other words, the point of\n Harmon’s appeal was not to present concerns about Evans’s\n conduct but to seek reinstatement of his employment as deputy\n constable with the County.\n\nHarmon II, 294 F. Supp. 3d at 571. In addition, that Harmon’s remaining claim\nhere is against Evans in his individual capacity—and thus seeks damages from\nhim personally—underscores our conviction that Harmon’s attempt to grieve\nhis termination with Evans constituted but a matter of private concern. See\nGibson, 838 F.3d at 487 (“The form of Gibson’s suit—personal capacity—\nprovides significant support for the conclusion that it was not a matter of public\nconcern.”). Finding no violation of Harmon’s First Amendment right to\npetition, we agree with the district court that Evans was entitled to qualified\nimmunity on this claim.\n To succeed on his equal protection claim, Harmon must show that “two\nor more classifications of similarly situated persons were treated differently.”\nGallegos-Hernandez v. United States, 688 F.3d 190, 195 (5th Cir. 2012).\nHarmon, however, alleges in his Rule 7(a) reply that Evans “had a policy and/or\na regular practice to not hear grievances of employees, including grievances by\ndeputy constables.” Thus, Harmon does not allege that Evans treated similarly\nsituated deputy constables differently; to the contrary, Harmon alleges that\nEvans’s regular practice was to refuse grievances all together, and his equal\nprotection claim fails for that reason. The district court did not err in granting\nEvans qualified immunity on this claim.\n AFFIRMED.\n\n\n\n\n 14\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Norvis Harmon v. Dallas County, Texas\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-09\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-10353 Document: 00515027635 Page: 1 Date Filed: 07/09/2019\\n\\n\\n\\n\\n REVISED July 9, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-10353 June 21, 2019\\n Lyle W. Cayce\\n Clerk\\nNORVIS HARMON,\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nDALLAS COUNTY, TEXAS; DERICK EVANS,\\n\\n Defendants - Appellees\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore REAVLEY, ELROD, and WILLETT, Circuit Judges.\\nPER CURIAM:\\n This case is about an employment relationship that did not turn out well.\\nNorvis Harmon, a former deputy constable, brought this action under 42\\nU.S.C. § 1983 against Dallas County and then-Constable Derick Evans. He\\nalleges the defendants violated his First Amendment rights when he was\\nterminated for reporting the illegal acts of Evans and others to law-\\nenforcement authorities. Harmon additionally alleges the defendants denied\\nhim equal protection of the law in refusing to hear his grievance.\\n\\f Case: 18-10353 Document: 00515027635 Page: 2 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-10353\\n This is Harmon’s second lawsuit based on these facts, as he previously\\nfiled a state-court lawsuit against Dallas County aggrieving the circumstances\\nof his termination. He did not enjoy a favorable judgment in that suit.\\n The district court below disposed of Harmon’s claims through a series of\\nsummary-judgment and 12(c) rulings. 1 The district court dismissed Harmon’s\\nclaims against Dallas County as barred by res judicata, 2 and dismissed\\nHarmon’s claims against Evans in his individual capacity on the basis of\\nqualified immunity. 3 For the reasons stated herein, we AFFIRM.\\n I.\\n Harmon is a former deputy constable in Precinct 1 of the Dallas County\\nConstable’s Office. During his employment, Harmon became aware that Evans\\nand his other superiors were up to some not-so-good things, to wit: (1) requiring\\ndeputies to work for Evans’s political allies without pay; (2) requiring deputies\\nto donate time and money to Evans’s re-election campaign; (3) illegally setting\\nquotas for writing traffic citations; and (4) requiring deputies to tow citizens’\\nvehicles after traffic stops, and to do so with a certain towing company with\\nwhom Evans shared a close relationship.\\n In November 2009, Harmon reported these activities to Defenbaugh &\\nAssociates, an investigative firm hired by the Dallas County Commissioner’s\\nCourt. Harmon alleges he made similar reports to the Dallas County Human\\nResources Department, the Dallas County District Attorney, and the Federal\\nBureau of Investigation.\\n\\n\\n\\n\\n 1 See generally Harmon v. Dall. Cty., Tex. (Harmon II), 294 F. Supp. 3d 548 (N.D. Tex.\\n2018); Harmon v. Dall. Cty., Tex., No. 3:13-CV-2083-L, 2017 WL 3394724 (N.D. Tex. Aug. 8,\\n2017) (denying Harmon’s motion to recuse); Harmon v. Dall. Cty., Tex. (Harmon I), 248 F.\\nSupp. 3d 814 (N.D. Tex. 2017).\\n 2 Harmon I, 248 F. Supp. 3d at 822.\\n 3 Id. at 823–24; Harmon II, 294 F. Supp. 3d at 576.\\n\\n 2\\n\\f Case: 18-10353 Document: 00515027635 Page: 3 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-10353\\n Things then went downhill. Word spread that certain deputies were\\nspeaking out, prompting Evans to call a meeting in which he made couched\\nthreats that he would retaliate against those who did. In March 2010, the\\nDallas Morning News published an article describing the results of the\\ninvestigation and confirmed that certain deputies had spoken out against\\nEvans’s illegal activities. 4 Although the article did not identify any of the\\ndeputies by name, a separate investigative report did. 5\\n Evans later initiated an administrative investigation into Harmon and,\\nfinding at least one discrepancy in Harmon’s GPS reports, terminated him\\n(from employment) on June 3, 2011. Harmon tried to grieve his termination to\\nEvans, as his department head, and to Dallas County. These attempts were\\nnot successful, because deputy constables hired after August 19, 2003 are\\nexcluded from the Dallas County Civil Service Commission’s grievance system\\nprocedure. 6 As Harmon was hired in 2008, he did not have grievance rights.\\nSo, Harmon turned to litigation.\\n Harmon first sued Dallas County in Texas state court. He asserted\\nclaims for alleged violations of the Texas Whistleblower Act and Texas\\nGovernment Code § 617.005, 7 and an equal protection violation under the\\n\\n\\n\\n\\n 4 Kevin Krause & Ed Timms, Report: Dallas County Constable Derick Evans May Have\\nBroken Law With Re-election Raffles, Not Paying Deputies For Off-duty Work, DALLASNEWS\\n(March 2010), https://www.dallasnews.com/news/crime/2010/03/04/Report-Dallas-County-\\nConstable-Derick-9350.\\n 5 Evans was eventually convicted for engaging in organized criminal activity. The\\n\\nconviction was affirmed on appeal. Evans v. State, No. 05-12-01179-CR, 2014 WL 1415093,\\nat *1 (Tex. App.—Dallas Mar. 28, 2014, pet. ref’d).\\n 6 See DALLAS CTY., TEX., CODE OF ORDINANCES ch. 86, art. I, § 86.1(1) (“Category A\\n\\nemployee includes . . . deputy constables hired after August 19, 2003 . . . . [C]ategory A\\nclassified employees are excluded from coverage afforded in employment procedures relating\\nto job posting, reduction-in-force, double-fill, reinstatement, reemployment, dismissals, right\\nof appeal, and grievance system procedures of this Code.”).\\n 7 TEX. GOV’T CODE § 617.005 (“This chapter does not impair the right of public\\n\\nemployees to present grievances concerning their wages, hours of employment, or conditions\\n 3\\n\\f Case: 18-10353 Document: 00515027635 Page: 4 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-10353\\nTexas Constitution. In addition, Harmon sought injunctive relief and\\ndeclaratory relief in connection with his equal protection claim, and a\\ndeclaration that Evans’s actions were “illegal and void.” Evans was not a party\\nto the state-court action.\\n The County moved to dismiss Harmon’s suit for lack of subject-matter\\njurisdiction, arguing that governmental immunity barred Harmon’s\\nconstitutional claims, as well as those brought under the Whistleblower Act\\nand Local Government Code. The County also argued that Harmon’s requests\\nfor injunctive and declaratory relief embraced ultra vires acts that could only\\nbe asserted against Evans, who was not a party to the suit. The court agreed\\nwith the County, dismissed Harmon’s claims with prejudice, and granted\\nHarmon the opportunity to replead his claims for declaratory and injunctive\\nrelief. Harmon did not, and the state court eventually entered final judgment\\ndisposing of all claims and parties on November 7, 2013.\\n Harmon brought his second suit in federal court, asserting two claims\\nunder § 1983: (1) a retaliation claim under the First Amendment, and (2) an\\nequal protection claim based on the denial of his right to petition the\\ngovernment. In addition to suing the County (again), Harmon also sued Evans\\nin both his individual and official capacities. Evans asserted the defense of\\nqualified immunity, so the district court ordered Harmon to file a Rule 7(a)\\nreply. Afterwards, Evans filed a Rule 12(c) motion for judgment on the\\npleadings based on his qualified-immunity defense, and both defendants later\\nfiled a limited motion for summary judgment asserting that res judicata barred\\nHarmon’s federal suit. 8\\n\\n\\n\\n\\nof work either individually or through a representative that does not claim the right to\\nstrike.”).\\n 8 We have simplified the motion practice before the district court.\\n\\n 4\\n\\f Case: 18-10353 Document: 00515027635 Page: 5 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-10353\\n The district court held that res judicata barred Harmon’s suit as to the\\nCounty and Evans in his official capacity, and then granted Evans’s Rule 12(c)\\nmotion on the basis of qualified immunity as to Harmon’s First Amendment\\nretaliation claim. 9 Harmon, however—and to the apparent surprise of the\\ndistrict court and the parties—argued that he still had lingering claims under\\nthe First Amendment’s Petition Clause. The district court granted Evans the\\nopportunity to file a dispositive motion on those claims, 10 and then granted his\\nmotion when he did. 11 Harmon timely appealed.\\n II.\\n Harmon brings three issues on appeal. He first argues that res judicata\\ndoes not apply to this case. Next, he argues the district court erred in granting\\nEvans qualified immunity on his First Amendment retaliation claim because\\nhis right to engage in the speech at issue was clearly established at the time of\\nhis termination. Finally, Harmon contends the district court was wrong to\\ngrant Evans qualified immunity on his claims under the First Amendment’s\\nPetition Clause. We address each in turn.\\n III.\\n We apply Texas law to determine the res judicata effect of a Texas\\njudgment, and our review is de novo. Sims v. City of Madisonville, 894 F.3d\\n632, 644 (5th Cir. 2018); Cox. v. Nueces Cty., Tex., 839 F.3d 418, 420–21 (5th\\nCir. 2016). Under Texas law, res judicata requires “(1) a prior final judgment\\non the merits by a court of competent jurisdiction; (2) identity of parties or\\n\\n\\n\\n\\n 9 Harmon I, 248 F. Supp. 3d at 818 n.5, 825.\\n 10 Id. at 825 (“The court is, therefore, dismayed with Plaintiff’s recent assertion\\nregarding a ‘First Amendment Petition Claim,’ as this litigation that has been pending four\\nyears. Out of fairness to Evans, the court will allow him to file a dispositive motion regarding\\nthis claim by April 28, 2017.”).\\n 11 Harmon II, 294 F. Supp. 3d at 576 (granting Evans’s summary-judgment motion on\\n\\nthe basis of qualified immunity).\\n 5\\n\\f Case: 18-10353 Document: 00515027635 Page: 6 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-10353\\nthose in privity with them; and (3) a second action based on the same claims\\nas were raised or could have been raised in the first action.” Amstadt v. U.S.\\nBrass Corp., 919 S.W.2d 644, 652 (Tex. 1996). Applying these principles, we\\nconclude that res judicata bars Harmon’s claims against the County and Evans\\nin his official capacity, but not as to Evans in his individual capacity.\\n The first element is met because, under Texas law, a dismissal based on\\ngovernmental immunity constitutes a final judgment on the merits for\\npurposes of res judicata. See Sims v. City of Madisonville, 894 F.3d 632, 644\\n(5th Cir. 2018) (“We have held that, under Texas law, a grant of a plea to the\\njurisdiction is a dismissal on the merits for purpose of res judicata.”); Klein v.\\nWalker, 708 F. App’x. 158, 160 (5th Cir. 2017) (unpublished) (“[A] dismissal on\\nimmunity grounds under Texas law is a dismissal on the merits for purposes\\nof res judicata.”). As mentioned, the state court dismissed Harmon’s claims\\nwith prejudice based on the County’s assertion that it was entitled to\\ngovernmental immunity and later entered a final judgment disposing of all\\nclaims and parties. This element is met.\\n The third element presents an easy solve under Texas’s “transactional”\\napproach. “Under this approach, a judgment in an earlier suit ‘precludes a\\nsecond action by the parties and their privies not only on matters actually\\nlitigated, but also on causes of action or defenses which arise out of the same\\nsubject matter and which might have been litigated in the first suit.’” Getty Oil\\nCo. v. Ins. Co. of N. Am., 845 S.W.2d 794, 798 (Tex. 1992) (citation omitted). In\\nthis case, both of Harmon’s suits arise from the same operative facts and\\nsubject matter—Harmon’s allegedly unlawful termination and his inability to\\nfile a grievance. See Sims, 894 F.3d at 645. And, as the district court observed,\\nnothing prevented Harmon from bringing his federal claims in state court. See\\nid. We conclude this element is also met.\\n\\n\\n 6\\n\\f Case: 18-10353 Document: 00515027635 Page: 7 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-10353\\n Stepping back, the second element—privity—presents a closer question,\\nbut our decision in Warnock v. Pecos County, Texas, 116 F.3d 776 (5th Cir.\\n1997) supplies the answer. 12 Warnock stands for the basic proposition that\\nprivity does not exist between a governmental entity and an employee later\\nsued in his or her individual capacity. See id. at 778. The plaintiff in Warnock\\nalleged that two state district court judges retaliated against her for\\nwhistleblowing. Although her initial state-court suit against the county was\\nunsuccessful, the plaintiff later filed suit in federal court against the county\\nand the judges in their official and individual capacities. Id. at 777. The district\\ncourt concluded that res judicata barred suit against the judges in both\\ncapacities, but we disagreed, holding that privity was lacking “between the\\ncounty and judges in their individual capacities.” Id. at 778. We cited to Conner\\nv. Reinhard for support, in which the Seventh Circuit explained that “a city\\nofficial sued in his official capacity is generally in privity with the\\nmunicipality,” but that “[a] government official sued in his personal capacity,\\nhowever, presents a different case.” 847 F.2d 384, 394–95 (7th Cir. 1988). The\\nreasons for drawing this distinction are legion:\\n If the plaintiff prevails against the official, the official must satisfy\\n the judgment out of his own pocket, rather than having the\\n government entity pay the damages. See Kentucky v. Graham, 473\\n U.S. 159, 166, 105 S. Ct. 3099, 3105, 87 L.Ed.2d 114 (1985). In\\n addition, different legal theories may be necessary to prove\\n liability in a personal-capacity, as opposed to an official-capacity,\\n case. Also, different defenses are available to a defendant who is\\n sued in his personal capacity. Therefore, courts do not generally\\n consider an official sued in his personal capacity as being in privity\\n with the government.\\n\\n\\n\\n\\n 12 There is no question this element is satisfied as to the County, as it was a party in\\nthe prior suit.\\n 7\\n\\f Case: 18-10353 Document: 00515027635 Page: 8 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-10353\\nId. at 395 (some citations omitted); see 18A Charles A. Wright & Arthur R.\\nMiller, Federal Practice and Procedure § 4458 (3d ed. 1998) (“The relationships\\nbetween a government and its officials justify preclusion only as to litigation\\nundertaken in an official capacity.”). 13 To that end, district courts in this circuit\\nhave applied Warnock to circumstances analogous to those at hand. See Benson\\nv. City of Texas City, Tex., No. 3:13-CV-23, 2014 WL 948901, at *4 (S.D. Tex.\\nMar. 11, 2014) (Costa, J.) (“The defendants argue that the Court should look\\n‘pragmatically’ at the privity issue by deciding whether the parties are\\n‘sufficiently close.’ But Warnock makes clear that defendants sued in their\\nindividual capacities are not ‘sufficiently close’ to their public employers for the\\nlogical reason that they both have different defenses.”). Thus, res judicata does\\nnot bar Harmon’s individual-capacity claims against Evans.\\n But we agree with the district court that res judicata bars any official-\\ncapacity claims against Evans. An official-capacity claim, after all, is\\nessentially a claim against the County. See Turner v. Houma Mun. Fire &\\nPolice Civil Serv. Bd., 229 F.3d 478, 485 (5th Cir. 2000) (observing that when\\n“a defendant government official is sued in his individual and official capacity,\\nand the city or state is also sued,” the “official-capacity claims and the claims\\nagainst the governmental entity essentially merge”); Olibas v. Dodson, 593 F.\\nApp’x 412, 413 (5th Cir. 2015) (unpublished) (“[I]t is well-settled that claims\\nagainst a municipal official in his official capacity are claims against the\\ncounty. . . . Therefore, we need not consider the County separate from the\\nSheriff in his official capacity.” (citation omitted)); Lewis v. Pugh, 289 F. App’x\\n767, 771 (5th Cir. 2008) (unpublished). Thus, because res judicata bars\\n\\n\\n 13See also McLellan v. Perry, 672 F. App’x 690, 691 (9th Cir. 2016) (“[P]rivity exists\\nbetween the agency and Defendant Wright, who is sued in his official capacity; but privity\\ndoes not exist between the agency and the other three Defendants, who are sued in their\\nindividual capacities.”); Headley v. Bacon, 828 F.2d 1272, 1279 (8th Cir. 1987) (“[A] judgment\\nagainst a government does not bind its officials sued in their personal capacities.”).\\n 8\\n\\f Case: 18-10353 Document: 00515027635 Page: 9 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-10353\\nHarmon’s claims against the County, it also bars Harmon’s official-capacity\\nclaims against Evans. However, because res judicata does not bar Harmon’s\\nindividual-capacity claims, we proceed, as did the district court, to the merits.\\n IV.\\n Harmon alleges he was terminated in retaliation for engaging in\\nprotected speech under the First Amendment. Evans, in a Rule 12(c) motion,\\nasserted the defense of qualified immunity. After ordering supplemental\\nbriefing on this point, the district court held that the law regarding Harmon’s\\nspeech was not clearly established at the time of his termination and thus\\nEvans was entitled to qualified immunity on Harmon’s retaliation claim. 14\\n We review de novo a district court’s ruling on a Rule 12(c) motion for\\njudgment on the pleadings asserting qualified immunity. Johnson v. Halstead,\\n916 F.3d. 410, 416 (5th Cir. 2019). “A ‘plausibility’ standard determines\\nwhether the plaintiff has pled sufficient facts to defeat a motion to dismiss.”\\nId. (citation omitted). “When the defendant asserts qualified immunity, the\\ncourt can order the plaintiff to submit a reply, refuting the immunity claim\\n‘with factual detail and particularity.’” Id. The plaintiff’s reply “‘must be\\ntailored to the assertion of qualified immunity and fairly engage its\\n\\n\\n\\n 14 This case was originally before then-Chief Judge Solis, who denied Evans’s\\nqualified-immunity defense. Harmon v. Dall. Cty., No. 3:13-CV-2083-P, 2015 WL 13672837,\\nat *4 (N.D. Tex. Dec. 1, 2015) (“The Court is convinced that every reasonable official would\\nhave understood such retaliation to be in violation of Harmon’s statutory or constitutional\\nrights.”). After Judge Solis retired, the case was reassigned to Judge Lindsay, who sua sponte\\nrevisited this issue. Judge Lindsay vacated that prior order, concluding that the law\\nregarding Harmon’s speech was not clearly established at the time of his termination.\\nBecause the denial of qualified immunity is an interlocutory order, the court was free to\\nrevisit and request further briefing on that issue. See Lavespere v. Niagara Mach. & Tool\\nWorks, Inc., 910 F.2d 167, 185 (5th Cir. 1990) (“[B]ecause the denial of a motion for summary\\njudgment is an interlocutory order, the trial court is free to reconsider and reverse its decision\\nfor any reason it deems sufficient, even in the absence of new evidence or an intervening\\nchange in or clarification of the substantive law.”), abrogated on other grounds, Little v.\\nLiquid Air Corp., 37 F.3d 1069 (5th Cir. 1994).\\n\\n 9\\n\\f Case: 18-10353 Document: 00515027635 Page: 10 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-10353\\nallegations.’” Id. (quoting Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir.\\n1995)).\\n “To evaluate whether a government official is entitled to qualified\\nimmunity, we conduct a two-prong inquiry: we ask (1) whether the undisputed\\nfacts and the disputed facts, accepting the plaintiffs’ version of the disputed\\nfacts as true, constitute a violation of a constitutional right, and (2) whether\\nthe defendant’s conduct was objectively reasonable in light of clearly\\nestablished law.” Carroll v. Ellington, 800 F.3d 154, 169 (5th Cir. 2015)\\n(quoting Thompson v. Upshur Cty., Tex., 245 F.3d 447, 457 (5th Cir. 2001)).\\n“We have discretion to address either prong first without necessarily\\naddressing the other.” Id.\\n To establish a claim for retaliation under the First Amendment, a\\nplaintiff must show, inter alia, that he “spoke as a citizen on a matter of public\\nconcern.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006); Anderson v. Valdez,\\n845 F.3d 580, 590 (5th Cir. 2016). Although reporting municipal corruption\\nundoubtedly constitutes speech on a matter of public concern, 15 Garcetti\\ninstructs to “first decide whether the plaintiff was speaking as a citizen\\ndisassociated with his public duties, or whether the plaintiff was speaking in\\nfurtherance of the duties of his or her public employment.” Howell v. Town of\\nBall, 827 F.3d 515, 522–23 (5th Cir. 2016). When public employees engage in\\nspeech pursuant to their official duties, they “are not speaking as citizens for\\nFirst Amendment purposes, and the Constitution does not insulate their\\ncommunications from employer discipline.” Garcetti, 547 U.S. at 421. In 2014,\\n\\n\\n\\n 15 See Lane v. Franks, 573 U.S. 228, 241 (2014) (“The content of Lane’s testimony—\\ncorruption in a public program and misuse of state funds—obviously involves a matter of\\nsignificant public concern.”); Garcetti, 547 U.S. at 425 (“Exposing governmental inefficiency\\nand misconduct is a matter of considerable significance.”); Markos v. City of Atlanta, Tex.,\\n364 F.3d 567, 574 (5th Cir. 2004) (“In this case, we have a public employee speaking out about\\nalleged corruption in the police department, a subject undoubtedly of public concern.”).\\n 10\\n\\f Case: 18-10353 Document: 00515027635 Page: 11 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-10353\\nthe Supreme Court emphasized that “[t]he critical question under Garcetti is\\nwhether the speech at issue is itself ordinarily within the scope of an\\nemployee’s duties, not whether it merely concerns those duties.” Lane, 573 U.S.\\nat 240.\\n We applied these principles in Howell v. Town of Ball, which we find\\ncontrolling. In Howell, we held that a Louisiana police officer’s confidential\\ninvolvement with an FBI-led investigation into the illegal acts of the mayor\\nand other local officials was not “in furtherance of his ordinary job duties.” 827\\nF.3d at 524. Although we agreed the police officer’s First Amendment rights\\nwere violated when he was terminated in retaliation for cooperating with the\\nFBI’s investigation, we ultimately concluded the defendants were entitled to\\nqualified immunity because, at the time of the officer’s termination, “it was not\\nclearly established whether his involvement in the FBI investigation was\\nprotected under the First Amendment.” Id. at 525. We explained that:\\n At the time that Howell was fired, Garcetti’s distinction between\\n speech made pursuant to official duties and speech made as a\\n private citizen was relatively new, and this court had not\\n considered it in the context of an action involving a police officer’s\\n statements to an outside law enforcement agency, or in the context\\n of a law enforcement officer’s assistance with an outside agency’s\\n investigation. Garcetti, by its own admission, did not “articulate a\\n comprehensive framework for defining the scope of an employee’s\\n duties in cases where there is room for serious debate.” See 547\\n U.S. at 424, 126 S. Ct. 1951. Furthermore, the Supreme Court did\\n not emphasize that only speech made in furtherance of an\\n employee’s “ordinary” job duties is not protected until nearly three\\n years after Howell was discharged.\\n The lack of the application of Garcetti to similar facts at the time\\n of Howell’s discharge, coupled with the Supreme Court’s only\\n recent clarification of Garcetti’s citizen/employee distinction\\n in Lane, compels us to hold that the Board defendants did not\\n violate a “clearly established” constitutional right when voting to\\n fire Howell. We thus affirm the district court’s grant of qualified\\n immunity to the Board defendants.\\n 11\\n\\f Case: 18-10353 Document: 00515027635 Page: 12 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-10353\\n\\n\\nId. 525–26 (some internal citations omitted).\\n The parties here essentially agree that Harmon alleges a violation of his\\nFirst Amendment rights; indeed, Evans concedes—ultimately to his\\nadvantage, of course—that “the facts in Howell are identical to the speech at\\nissue in this case.” And Harmon alleges that it was not part of his ordinary\\nduties as a deputy constable to report the illegal acts of his supervisors to\\ninvestigators, the FBI, and other authorities. Even so, Harmon’s termination\\noccurred just one month prior to the officer’s termination in Howell, where we\\nheld that it was not clearly established whether a law enforcement officer’s\\ninvolvement in an investigation with outside law-enforcement enjoyed\\nprotection under the First Amendment. Accordingly, the same result in Howell\\nmust obtain here. 16 We thus agree with the district court that Evans is entitled\\nto qualified immunity on Harmon’s First Amendment retaliation claim.\\n V.\\n Finally, we address Harmon’s claims under the First Amendment’s\\nPetition Clause, which “protects ‘the right of the people . . . to petition the\\nGovernment for a redress of grievances.’” Borough of Duryea, Pa. v. Guarnieri,\\n564 U.S. 379, 382 (2011) (quoting U.S. CONST. AMEND I.).\\n\\n\\n\\n\\n 16 Harmon directs us to Cutler v. Stephen F. Austin State University in support of his\\nargument that the law regarding his speech was clearly protected at the time of his\\ntermination. 767 F.3d 462, 472 (5th Cir. 2014) (“Several pre–2010 decisions have, however,\\ngiven the Defendants the ‘fair warning’ they need.”). However, whether the law was clearly-\\nestablished at the time of Harmon’s termination requires us to consider the specific context\\nof the case. See Anderson v. Valdez, 913 F.3d 472, 476 (5th Cir. 2019) (“[W]e are ‘not to define\\nclearly established law at a high level of generality,’ but rather are to pay close attention to\\n‘the specific context of the case.’” (citation omitted)). Cutler did not involve a law-enforcement\\nofficer’s reporting the illegal acts of his superior to outside law-enforcement authorities, so\\nwe follow Howell.\\n 12\\n\\f Case: 18-10353 Document: 00515027635 Page: 13 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-10353\\n As best we can tell, Harmon attempts to bring two “petition” claims. 17\\nThe first appears to be a straight-up petition claim based on Evans’s refusal to\\nhear his grievance; that is, Harmon alleges that Evans’s refusal to hear his\\ngrievance violated his “fundamental” right to petition the government.\\nHarmon’s second claim appears to be an equal-protection variant and is\\nsimilarly based upon Evans’s refusal to hear his grievance. We address each in\\nturn. 18\\n Harmon’s first theory fails for the very basic reason that his attempted\\ngrievance involved a matter of private concern. Indeed, “[i]f a public employee\\npetitions as an employee on a matter of purely private concern, the\\nemployee’s First Amendment interest must give way, as it does in speech\\ncases.” Id. at 398. To be clear, Harmon’s speech—his reporting illegal conduct,\\nwhich is a matter of public concern—is not at issue here; rather, the issue\\nconcerns Harmon’s grievance. By its very nature, however, an employee’s\\ngrievance from termination will not ordinarily constitute a matter of public\\nconcern. See id. (“A petition filed with an employer using an internal grievance\\nprocedure in many cases will not seek to communicate to the public or to\\nadvance a political or social point of view beyond the employment context.”);\\nGibson v. Kilpatrick, 838 F.3d 476, 487 (5th Cir. 2016) (“Internal personnel\\ndisputes and management decisions are rarely a matter of public concern.”).\\nWe think the district court said it well:\\n There is no evidence that Harmon was using the petition appealing\\n his employment termination as a platform to publicly air his\\n\\n\\n 17 Harmon gears much of his Petition Clause arguments towards Dallas County and\\nits decision to exclude deputy constables hired before August 19, 2003 from its grievance\\nsystem. Because we hold that res judicata bars Harmon’s claims against the County and\\nEvans in his official capacity, we do not address these arguments.\\n 18 The district court held that Harmon’s Petition Clause claims were not properly\\n\\nbefore the court but nevertheless addressed them on the merits. We limit our analysis here\\nto the merits.\\n 13\\n\\f Case: 18-10353 Document: 00515027635 Page: 14 Date Filed: 07/09/2019\\n\\n\\n\\n No. 18-10353\\n concerns about Evans’s conduct. He, instead, was merely using the\\n petition to appeal the termination of his employment as any\\n employee, private or public, would do. In other words, the point of\\n Harmon’s appeal was not to present concerns about Evans’s\\n conduct but to seek reinstatement of his employment as deputy\\n constable with the County.\\n\\nHarmon II, 294 F. Supp. 3d at 571. In addition, that Harmon’s remaining claim\\nhere is against Evans in his individual capacity—and thus seeks damages from\\nhim personally—underscores our conviction that Harmon’s attempt to grieve\\nhis termination with Evans constituted but a matter of private concern. See\\nGibson, 838 F.3d at 487 (“The form of Gibson’s suit—personal capacity—\\nprovides significant support for the conclusion that it was not a matter of public\\nconcern.”). Finding no violation of Harmon’s First Amendment right to\\npetition, we agree with the district court that Evans was entitled to qualified\\nimmunity on this claim.\\n To succeed on his equal protection claim, Harmon must show that “two\\nor more classifications of similarly situated persons were treated differently.”\\nGallegos-Hernandez v. United States, 688 F.3d 190, 195 (5th Cir. 2012).\\nHarmon, however, alleges in his Rule 7(a) reply that Evans “had a policy and/or\\na regular practice to not hear grievances of employees, including grievances by\\ndeputy constables.” Thus, Harmon does not allege that Evans treated similarly\\nsituated deputy constables differently; to the contrary, Harmon alleges that\\nEvans’s regular practice was to refuse grievances all together, and his equal\\nprotection claim fails for that reason. The district court did not err in granting\\nEvans qualified immunity on this claim.\\n AFFIRMED.\\n\\n\\n\\n\\n 14\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2989,"cells":{"id":{"kind":"number","value":4637832,"string":"4,637,832"},"name":{"kind":"string","value":"Jose Nelson CRUZ; Nelson Steven Cruz-Villega, Petitioners, v. William P. BARR, U. S. Attorney General, Respondent."},"name_abbreviation":{"kind":"string","value":"Jose Cruz v. William Barr, U. S. Atty Gen"},"decision_date":{"kind":"string","value":"2019-07-09"},"docket_number":{"kind":"string","value":"17-60510"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"King, Smith, Willett\", \"parties\": \"\", \"opinions\": [{\"author\": \"DON R. WILLETT, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-60510 Document: 00515026843 Page: 1 Date Filed: 07/09/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 17-60510 July 9, 2019\\n Lyle W. Cayce\\nJOSE NELSON CRUZ; NELSON STEVEN CRUZ-VILLEGA, Clerk\\n\\n\\n Petitioners,\\n\\nv.\\n\\nWILLIAM P. BARR, U. S. ATTORNEY GENERAL,\\n\\n Respondent.\\n\\n\\n Petitions for Review of an Order\\n of the Board of Immigration Appeals\\n\\n\\nBefore KING, SMITH, and WILLETT, Circuit Judges.\\nDON R. WILLETT, Circuit Judge:\\n Jose Cruz, a former Salvadoran police officer, fled his home country and\\nillegally entered the United States with his son after receiving threats from\\nthe Revolutionaries—a faction of the Barrio 18 gang. Conceding his\\nremovability, Cruz requested asylum, withholding of deportation, and\\nprotection under the United Nations Convention Against Torture.\\n The Immigration Judge denied all relief, as did the Board of Immigration\\nAppeals, which accepted the Immigration Judge’s key findings that (1) Cruz\\ndid not suffer past persecution in El Salvador, (2) Cruz failed to satisfy his\\nburden of establishing a well-founded fear of future persecution, and (3)\\nbecause Cruz failed to make a prima facie showing on his asylum claim, he\\nnecessarily failed to make the more stringent showing for withholding of\\n\\f Case: 17-60510 Document: 00515026843 Page: 2 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-60510\\nremoval. The Board denied relief across the board, and Cruz brought this\\npetition for review.\\n Under the highly deferential standards of review that guide our analysis,\\nwe conclude that the Board committed no reversible error. We DENY Cruz’s\\npetition for review.\\n I\\n In El Salvador, Cruz patrolled his hometown of Zacatecoluca. The\\nRevolutionaries didn’t like that and threatened Cruz. The first threat came\\nwhen Cruz was sitting in a car with his son. Gang members approached Cruz\\nand told him “they knew him, knew where he lived, and wanted him out of the\\nterritory.” One member raised his shirt to show his gang tattoos and a gun in\\nhis waistband. They told Cruz that they weren’t going to kill him then and\\nthere because his son was with him, and there were too many witnesses. Cruz\\nreported the incident to police officials the next day and then asked for (and\\nreceived) a three-year leave of absence.\\n The next threat, not long after, was a threatening note left on Cruz’s\\ndoor: “We don’t want to see you in our neighborhood again, or you are going to\\nregret it.” Later that day, the gang’s leader called Cruz and told him that he’d\\nbeen given the green light to murder Cruz and his son unless Cruz left town.\\nSo Cruz fled the country with his son later that month. His mother continues\\nto live in their Salvadoran home, though, and has not received any additional\\nthreats or harassment.\\n Cruz entered the United States illegally and was apprehended.\\nAdmitting he was removable, Cruz applied for asylum, withholding of removal,\\nand protection under the Convention Against Torture.\\n The Immigration Judge denied all relief. Although the IJ sympathized\\nwith Cruz and his family, he nonetheless held that Cruz “failed to meet his\\nburden of proof to establish he was persecuted, or suffered past persecution, or\\n 2\\n\\f Case: 17-60510 Document: 00515026843 Page: 3 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-60510\\nhas a well-founded fear of future persecution on account of a protected ground\\nif he is returned to El Salvador.” As the IJ saw it, the threats Cruz received\\n“did not arise to the level that . . . would constitute persecution.” 1 Finally, the\\nIJ denied Cruz’s Convention petition because Cruz “provided insufficient\\nevidence” of torture, past or future, at the hands of Salvadoran officials acting\\nin their official capacity.\\n Cruz appealed the IJ’s decision to the Board, which found no error: “The\\nrecord [did] not demonstrate that [Cruz was] subjected to extreme conduct\\nconstituting past persecution.” Nor did the Board buy Cruz’s well-founded-\\nfear-of-future-persecution claim. The Board believed he could’ve reasonably\\navoided persecution by relocating to another part of El Salvador 2—something\\nCruz admitted that he never attempted to do. And the Board emphasized that\\nthe gang had never threatened any of Cruz’s family members in El Salvador.\\nSince Cruz failed to make a prima facie asylum showing, he necessarily failed\\nto make the more rigorous showing necessary to justify withholding of\\nremoval. 3\\n Concerning Cruz’s petition for protection under the Convention, the\\nBoard found that Cruz did not show that it is more likely than not that a\\n“person acting in a public capacity” would “inflict,” “acquiesce,” or “give consent\\nto . . . torture.” 4 As there was no state action, the Board concluded that the IJ\\nproperly denied Cruz’s request for Convention protection.\\n\\n\\n\\n 1 “To the extent that [Cruz] fears gang activity,” the IJ remarked, “that is merely a\\nfear that [he] may be the victim of crime, not persecuted on account of a protected ground.”\\n 2 See Eduard v. Ashcroft, 379 F.3d 182, 194 (5th Cir. 2004) (“An applicant does not\\n\\nhave a well-founded fear of persecution if the applicant could avoid persecution by relocating\\nto another part of the applicant’s country of nationality.” (quoting 8 C.F.R. § 208.13(b)(2)(ii))).\\n 3 See Adebisi v. INS, 952 F.2d 910, 914 (5th Cir. 1992).\\n 4 See Tamara-Gomez, 447 F.3d at 351 (“The Convention Against Torture requires a\\n\\n‘public official’ or ‘person acting in a public capacity’ to ‘inflict,’ ‘acquiesce,’ or ‘give consent’ to\\nthe torture.”).\\n 3\\n\\f Case: 17-60510 Document: 00515026843 Page: 4 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-60510\\n Cruz filed a timely motion seeking to reopen proceedings and to\\nreconsider the Board’s decision. The Board denied the motion. Cruz then\\nappealed both the Board’s decision affirming the IJ and the denial of his\\nmotions to reconsider and to reopen proceedings. We consolidated the appeals.\\nCruz does not appeal the Board’s denial of relief under the Convention Against\\nTorture, so those arguments are waived. 5\\n II\\n Our review is limited and deferential. Motions to reopen removal\\nproceedings are disfavored, 6 and we review denials of such motions “under a\\nhighly deferential abuse-of-discretion standard.” 7 We review the Board’s\\nfactual findings under the substantial-evidence test, reversing only when the\\nrecord is “so compelling that no reasonable fact finder could fail to find the\\npetitioner statutorily eligible for relief.” 8\\n On appeal, Cruz asserts that he suffered past persecution and has a well-\\nfounded fear of future persecution. He also argues that the Board abused its\\ndiscretion in denying his motion to reconsider. Under the governing standards\\nof review, we cannot say the Board committed reversible error.\\n A\\n Let’s begin with the motion to reconsider. It is Cruz’s burden to identify\\nan error of law or an argument that slipped through the cracks. Cruz contends\\nthat the Board applied the wrong standard of review to the IJ’s finding (that\\nCruz did not suffer past persecution), a legal error if he can prove it.\\n\\n\\n\\n 5 “It is a well worn principle that the failure to raise an issue on appeal constitutes\\nwaiver of that argument.” United States v. Griffith, 522 F.3d 607, 610 (5th Cir. 2008) (citing\\nUnited States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000)).\\n 6 Altamirano-Lopez v. Gonzales, 435 F.3d 547, 549 (5th 2006).\\n 7 Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th 2009); see 8 C.F.R. § 1003.2(a) (“The\\n\\ndecision to grant or deny a motion to reopen or reconsider is within the discretion of the Board\\nsubject to the restrictions of this section.”).\\n 8 Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004) (per curiam).\\n\\n 4\\n\\f Case: 17-60510 Document: 00515026843 Page: 5 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-60510\\nUnfortunately, he fails to cite pertinent authority to support this proposition.\\nAs explained below, the Board did not misstep.\\n Under 8 U.S.C. § 1229a(c)(6)(C), a motion to reconsider must “specify the\\nerrors of law or fact in the previous order and shall be supported by pertinent\\nauthority.” 9 And federal law provides just one shot: “A party may only file one\\nmotion to reconsider any given decision and may not seek reconsideration of a\\ndecision denying a previous motion to reconsider.” 10 Finally, the Board\\npossesses broad leeway: “The decision to grant or deny a motion to reopen or\\nreconsider is within the discretion of the Board . . . .” 11 This wide discretion\\npersists “even if the party moving has made out a prima facie case for relief.” 12\\n Congress has granted the Board abundant leeway, and we review the\\nBoard’s denial of a motion to reopen “under a highly deferential abuse of\\ndiscretion standard.” 13 As noted above, we must affirm the Board’s refusal to\\nreopen, even if we believe the refusal was error, “so long as it is not capricious,\\nracially invidious, utterly without foundation in the evidence, or otherwise so\\nirrational that it is arbitrary rather than the result of any perceptible rational\\napproach.” 14 As for the Board’s legal conclusions, we review those de novo. 15\\n Cruz asserts that the Board applied the wrong standard of review to the\\nIJ’s lack-of-past-persecution finding—reviewing the decision for clear error,\\nrather than de novo. Cruz says that the Board compounded this error when it\\ndenied his motion to reconsider. He maintains that “[w]hile an IJ’s factual\\n\\n\\n 9 It must also “state the reasons for the motion by specifying the errors of fact or law\\nin the prior Board decision and shall be supported by pertinent authority.” 8 C.F.R.\\n§ 1003.2(b)(1).\\n 10 8 C.F.R. § 1003.2(b)(2).\\n 11 Id. § 1003.2(a).\\n 12 Id.\\n 13 Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005); see, e.g., Lowe v. Sessions, 872\\n\\nF.3d 713, 715 & n.1 (5th Cir. 2017) (collecting cases).\\n 14 Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (quoting Zhao, 404 F.3d at 304).\\n 15 Id.\\n\\n 5\\n\\f Case: 17-60510 Document: 00515026843 Page: 6 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-60510\\ndeterminations can be reviewed only for clear error, an IJ’s decisions based\\nupon law or judgment may be reviewed de novo.” 16 He frames the persecution\\nissue as a legal (not factual) issue that deserves fresh-eyed de novo review.\\n The government replies that Cruz can’t cite any legal authority for this\\nproposition. And since he provided the Board with no legal basis to grant his\\nmotion to reconsider, the Board didn’t abuse its discretion when it denied the\\nmotion.\\n We agree with the Government on this point. The Board did not abuse\\nits discretion in denying Cruz’s motion to reconsider because supporting\\nauthority was wholly absent from Cruz’s motion 17—other than the regulatory\\nstandard of review for questions of law. 18\\n B\\n The Board held that the IJ could reasonably have found that Cruz didn’t\\nsuffer past persecution and didn’t have a well-founded fear of future\\npersecution. Even though Cruz presented plenty of evidence to demonstrate\\npast and future persecution, we can’t say that the evidence compels a finding\\nof persecution; accordingly, the Board did not abuse its discretion. 19\\n The Attorney General has discretion to grant asylum to “refugees” 20—\\nthat is, aliens who are “unable or unwilling to return to their home country\\nbecause of persecution or a well-founded fear of persecution on account of race,\\nreligion, nationality, membership in a particular social group, or political\\n\\n\\n\\n\\n 16 See 8 C.F.R. § 1003.1(d)(3)(i)–(ii).\\n 17 “The motion does not identify any error of law . . . or identify any argument\\nadvanced that was overlooked by the Board.”\\n 18 8 C.F.R. § 1003.1(d)(3)(ii).\\n 19 Long v. Gonzales, 420 F.3d 516, 519 (5th Cir. 2005).\\n 20 8 U.S.C. § 1158(a); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).\\n\\n 6\\n\\f Case: 17-60510 Document: 00515026843 Page: 7 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-60510\\nopinion.” 21 The burden of proof is on the asylum seeker to demonstrate that he\\nmeets the statutory “refugee” definition. 22 Cruz must thus demonstrate three\\nthings: (1) He was or likely will be persecuted in El Salvador (2) “on account\\nof” (3) his “race, religion, nationality, membership in a particular social group,\\nor political opinion.” 23\\n Although Cruz submitted evidence about the threats he received, why he\\nbelieved these threats were credible, and how prevalent gang activity is in El\\nSalvador, our review is limited, focusing only on whether there is substantial\\nevidence to support the Board’s finding. 24 In other words, we aren’t weighing\\nand evaluating record evidence, deciding which pieces persuade us and which\\ndon’t; we are only asking whether the Board could look at the evidence and\\nplausibly reach the finding it made.\\n We think substantial evidence supports the Board’s no-past-persecution\\nfinding. Although Cruz testified that the gang’s threats were against his entire\\nfamily, he admitted that his family members who still live in El Salvador have\\nexperienced no problems with the Revolutionaries. His mother still lives in the\\nhome where the threatening note was posted, and she has encountered no\\ndifficulties with the gang.\\n For the same reasons, we cannot say the Board abused its discretion in\\nfinding a lack of well-founded fear of future persecution—the rest of the Cruz\\nfamily has been safe. But there’s a small, additional step to our future-\\npersecution inquiry. When the applicant has not demonstrated past\\npersecution, he has the burden to demonstrate that relocating within his home\\n\\n\\n\\n 21 8 U.S.C. § 1101(a)(42); see also Dayo v. Holder, 687 F.3d 653, 657 (5th Cir. 2012)\\n(“To qualify for asylum, an applicant must show he is a refugee by proving he suffered past\\npersecution or has a well-founded fear of future persecution.”).\\n 22 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(a).\\n 23 8 U.S.C. § 1101(a)(42).\\n 24 See Long, 420 F.3d at 519.\\n\\n 7\\n\\f Case: 17-60510 Document: 00515026843 Page: 8 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-60510\\ncountry would be unreasonable. 25 Cruz admitted that he never attempted to\\nrelocate. Combined with his mother’s continued safety, this constitutes\\nsubstantial evidence to back-up the Board’s finding that there is no well-\\nfounded fear of future persecution.\\n In sum, we cannot say that the Board went so far afield “that no\\nreasonable factfinder could reach a contrary conclusion.” 26 So, because the\\nBoard did not abuse its discretion in finding no persecution, Cruz’s asylum\\nclaim fails. 27\\n * * *\\n For these reasons, we DENY Cruz’s petition for review.\\n\\n\\n\\n\\n 25 8 CFR 1208.13(b)(3)(i); Eduard, 379 F.3d at 194 (“Because there was no showing of\\npast persecution, Petitioners had the burden to establish that their relocation was\\nunreasonable.”).\\n 26 Zhao, 404 F.3d at 306 (citing Elias-Zacarias, 502 U.S. at 481 n.1).\\n 27 While we conclude that substantial evidence supports the BIA’s no-persecution\\n\\ndetermination, we also note, but need not resolve, another issue: whether Cruz’s status as a\\nformer police officer falls within “particular social group.” 8 U.S.C. § 1101(a)(42). The Board,\\nin its Matter of Fuentes decision, distinguished between current and former police officers,\\nrecognizing that “status as a former member of the national police . . . is in fact an immutable\\ncharacteristic” that could count as a particular social group under the statute. 19 I. & N. 658,\\n661–62 (1988) (emphasis added). It also explained that current police officers could count too,\\nif the persecution they face doesn’t fall within the type and degree of harm police officers\\ntypically expect to encounter as part of the job. Our circuit has not squarely addressed this\\ncurrent-versus-former-officer distinction. See Tamara-Gomez, 447 F.3d at 349 (failing to\\naddress the distinction); see also Gharti-Magar v. Holder, 551 F. App’x 197, 198–99 (5th Cir.\\n2014) (per curiam) (denying asylum to a Nepalese police officer and not discussing the\\ndistinction between current and former officers). The parties in today’s case did not provide\\ndetailed briefing on this issue, nor was it discussed by the BIA. As our decision pivots on\\n“substantial evidence,” we need not reach the current-versus-former-officer issue.\\n 8\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4415085/\", \"author_raw\": \"DON R. WILLETT, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"KING"},"judge2":{"kind":"string","value":"SMITH"},"judge3":{"kind":"string","value":"WILLETT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4637832/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Jose Nelson CRUZ; Nelson Steven Cruz-Villega, Petitioners, v. William P. BARR, U. S. Attorney General, Respondent.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-09\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-60510 Document: 00515026843 Page: 1 Date Filed: 07/09/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 17-60510 July 9, 2019\n Lyle W. Cayce\nJOSE NELSON CRUZ; NELSON STEVEN CRUZ-VILLEGA, Clerk\n\n\n Petitioners,\n\nv.\n\nWILLIAM P. BARR, U. S. ATTORNEY GENERAL,\n\n Respondent.\n\n\n Petitions for Review of an Order\n of the Board of Immigration Appeals\n\n\nBefore KING, SMITH, and WILLETT, Circuit Judges.\nDON R. WILLETT, Circuit Judge:\n Jose Cruz, a former Salvadoran police officer, fled his home country and\nillegally entered the United States with his son after receiving threats from\nthe Revolutionaries—a faction of the Barrio 18 gang. Conceding his\nremovability, Cruz requested asylum, withholding of deportation, and\nprotection under the United Nations Convention Against Torture.\n The Immigration Judge denied all relief, as did the Board of Immigration\nAppeals, which accepted the Immigration Judge’s key findings that (1) Cruz\ndid not suffer past persecution in El Salvador, (2) Cruz failed to satisfy his\nburden of establishing a well-founded fear of future persecution, and (3)\nbecause Cruz failed to make a prima facie showing on his asylum claim, he\nnecessarily failed to make the more stringent showing for withholding of\n\f Case: 17-60510 Document: 00515026843 Page: 2 Date Filed: 07/09/2019\n\n\n\n No. 17-60510\nremoval. The Board denied relief across the board, and Cruz brought this\npetition for review.\n Under the highly deferential standards of review that guide our analysis,\nwe conclude that the Board committed no reversible error. We DENY Cruz’s\npetition for review.\n I\n In El Salvador, Cruz patrolled his hometown of Zacatecoluca. The\nRevolutionaries didn’t like that and threatened Cruz. The first threat came\nwhen Cruz was sitting in a car with his son. Gang members approached Cruz\nand told him “they knew him, knew where he lived, and wanted him out of the\nterritory.” One member raised his shirt to show his gang tattoos and a gun in\nhis waistband. They told Cruz that they weren’t going to kill him then and\nthere because his son was with him, and there were too many witnesses. Cruz\nreported the incident to police officials the next day and then asked for (and\nreceived) a three-year leave of absence.\n The next threat, not long after, was a threatening note left on Cruz’s\ndoor: “We don’t want to see you in our neighborhood again, or you are going to\nregret it.” Later that day, the gang’s leader called Cruz and told him that he’d\nbeen given the green light to murder Cruz and his son unless Cruz left town.\nSo Cruz fled the country with his son later that month. His mother continues\nto live in their Salvadoran home, though, and has not received any additional\nthreats or harassment.\n Cruz entered the United States illegally and was apprehended.\nAdmitting he was removable, Cruz applied for asylum, withholding of removal,\nand protection under the Convention Against Torture.\n The Immigration Judge denied all relief. Although the IJ sympathized\nwith Cruz and his family, he nonetheless held that Cruz “failed to meet his\nburden of proof to establish he was persecuted, or suffered past persecution, or\n 2\n\f Case: 17-60510 Document: 00515026843 Page: 3 Date Filed: 07/09/2019\n\n\n\n No. 17-60510\nhas a well-founded fear of future persecution on account of a protected ground\nif he is returned to El Salvador.” As the IJ saw it, the threats Cruz received\n“did not arise to the level that . . . would constitute persecution.” 1 Finally, the\nIJ denied Cruz’s Convention petition because Cruz “provided insufficient\nevidence” of torture, past or future, at the hands of Salvadoran officials acting\nin their official capacity.\n Cruz appealed the IJ’s decision to the Board, which found no error: “The\nrecord [did] not demonstrate that [Cruz was] subjected to extreme conduct\nconstituting past persecution.” Nor did the Board buy Cruz’s well-founded-\nfear-of-future-persecution claim. The Board believed he could’ve reasonably\navoided persecution by relocating to another part of El Salvador 2—something\nCruz admitted that he never attempted to do. And the Board emphasized that\nthe gang had never threatened any of Cruz’s family members in El Salvador.\nSince Cruz failed to make a prima facie asylum showing, he necessarily failed\nto make the more rigorous showing necessary to justify withholding of\nremoval. 3\n Concerning Cruz’s petition for protection under the Convention, the\nBoard found that Cruz did not show that it is more likely than not that a\n“person acting in a public capacity” would “inflict,” “acquiesce,” or “give consent\nto . . . torture.” 4 As there was no state action, the Board concluded that the IJ\nproperly denied Cruz’s request for Convention protection.\n\n\n\n 1 “To the extent that [Cruz] fears gang activity,” the IJ remarked, “that is merely a\nfear that [he] may be the victim of crime, not persecuted on account of a protected ground.”\n 2 See Eduard v. Ashcroft, 379 F.3d 182, 194 (5th Cir. 2004) (“An applicant does not\n\nhave a well-founded fear of persecution if the applicant could avoid persecution by relocating\nto another part of the applicant’s country of nationality.” (quoting 8 C.F.R. § 208.13(b)(2)(ii))).\n 3 See Adebisi v. INS, 952 F.2d 910, 914 (5th Cir. 1992).\n 4 See Tamara-Gomez, 447 F.3d at 351 (“The Convention Against Torture requires a\n\n‘public official’ or ‘person acting in a public capacity’ to ‘inflict,’ ‘acquiesce,’ or ‘give consent’ to\nthe torture.”).\n 3\n\f Case: 17-60510 Document: 00515026843 Page: 4 Date Filed: 07/09/2019\n\n\n\n No. 17-60510\n Cruz filed a timely motion seeking to reopen proceedings and to\nreconsider the Board’s decision. The Board denied the motion. Cruz then\nappealed both the Board’s decision affirming the IJ and the denial of his\nmotions to reconsider and to reopen proceedings. We consolidated the appeals.\nCruz does not appeal the Board’s denial of relief under the Convention Against\nTorture, so those arguments are waived. 5\n II\n Our review is limited and deferential. Motions to reopen removal\nproceedings are disfavored, 6 and we review denials of such motions “under a\nhighly deferential abuse-of-discretion standard.” 7 We review the Board’s\nfactual findings under the substantial-evidence test, reversing only when the\nrecord is “so compelling that no reasonable fact finder could fail to find the\npetitioner statutorily eligible for relief.” 8\n On appeal, Cruz asserts that he suffered past persecution and has a well-\nfounded fear of future persecution. He also argues that the Board abused its\ndiscretion in denying his motion to reconsider. Under the governing standards\nof review, we cannot say the Board committed reversible error.\n A\n Let’s begin with the motion to reconsider. It is Cruz’s burden to identify\nan error of law or an argument that slipped through the cracks. Cruz contends\nthat the Board applied the wrong standard of review to the IJ’s finding (that\nCruz did not suffer past persecution), a legal error if he can prove it.\n\n\n\n 5 “It is a well worn principle that the failure to raise an issue on appeal constitutes\nwaiver of that argument.” United States v. Griffith, 522 F.3d 607, 610 (5th Cir. 2008) (citing\nUnited States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000)).\n 6 Altamirano-Lopez v. Gonzales, 435 F.3d 547, 549 (5th 2006).\n 7 Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th 2009); see 8 C.F.R. § 1003.2(a) (“The\n\ndecision to grant or deny a motion to reopen or reconsider is within the discretion of the Board\nsubject to the restrictions of this section.”).\n 8 Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004) (per curiam).\n\n 4\n\f Case: 17-60510 Document: 00515026843 Page: 5 Date Filed: 07/09/2019\n\n\n\n No. 17-60510\nUnfortunately, he fails to cite pertinent authority to support this proposition.\nAs explained below, the Board did not misstep.\n Under 8 U.S.C. § 1229a(c)(6)(C), a motion to reconsider must “specify the\nerrors of law or fact in the previous order and shall be supported by pertinent\nauthority.” 9 And federal law provides just one shot: “A party may only file one\nmotion to reconsider any given decision and may not seek reconsideration of a\ndecision denying a previous motion to reconsider.” 10 Finally, the Board\npossesses broad leeway: “The decision to grant or deny a motion to reopen or\nreconsider is within the discretion of the Board . . . .” 11 This wide discretion\npersists “even if the party moving has made out a prima facie case for relief.” 12\n Congress has granted the Board abundant leeway, and we review the\nBoard’s denial of a motion to reopen “under a highly deferential abuse of\ndiscretion standard.” 13 As noted above, we must affirm the Board’s refusal to\nreopen, even if we believe the refusal was error, “so long as it is not capricious,\nracially invidious, utterly without foundation in the evidence, or otherwise so\nirrational that it is arbitrary rather than the result of any perceptible rational\napproach.” 14 As for the Board’s legal conclusions, we review those de novo. 15\n Cruz asserts that the Board applied the wrong standard of review to the\nIJ’s lack-of-past-persecution finding—reviewing the decision for clear error,\nrather than de novo. Cruz says that the Board compounded this error when it\ndenied his motion to reconsider. He maintains that “[w]hile an IJ’s factual\n\n\n 9 It must also “state the reasons for the motion by specifying the errors of fact or law\nin the prior Board decision and shall be supported by pertinent authority.” 8 C.F.R.\n§ 1003.2(b)(1).\n 10 8 C.F.R. § 1003.2(b)(2).\n 11 Id. § 1003.2(a).\n 12 Id.\n 13 Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005); see, e.g., Lowe v. Sessions, 872\n\nF.3d 713, 715 & n.1 (5th Cir. 2017) (collecting cases).\n 14 Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (quoting Zhao, 404 F.3d at 304).\n 15 Id.\n\n 5\n\f Case: 17-60510 Document: 00515026843 Page: 6 Date Filed: 07/09/2019\n\n\n\n No. 17-60510\ndeterminations can be reviewed only for clear error, an IJ’s decisions based\nupon law or judgment may be reviewed de novo.” 16 He frames the persecution\nissue as a legal (not factual) issue that deserves fresh-eyed de novo review.\n The government replies that Cruz can’t cite any legal authority for this\nproposition. And since he provided the Board with no legal basis to grant his\nmotion to reconsider, the Board didn’t abuse its discretion when it denied the\nmotion.\n We agree with the Government on this point. The Board did not abuse\nits discretion in denying Cruz’s motion to reconsider because supporting\nauthority was wholly absent from Cruz’s motion 17—other than the regulatory\nstandard of review for questions of law. 18\n B\n The Board held that the IJ could reasonably have found that Cruz didn’t\nsuffer past persecution and didn’t have a well-founded fear of future\npersecution. Even though Cruz presented plenty of evidence to demonstrate\npast and future persecution, we can’t say that the evidence compels a finding\nof persecution; accordingly, the Board did not abuse its discretion. 19\n The Attorney General has discretion to grant asylum to “refugees” 20—\nthat is, aliens who are “unable or unwilling to return to their home country\nbecause of persecution or a well-founded fear of persecution on account of race,\nreligion, nationality, membership in a particular social group, or political\n\n\n\n\n 16 See 8 C.F.R. § 1003.1(d)(3)(i)–(ii).\n 17 “The motion does not identify any error of law . . . or identify any argument\nadvanced that was overlooked by the Board.”\n 18 8 C.F.R. § 1003.1(d)(3)(ii).\n 19 Long v. Gonzales, 420 F.3d 516, 519 (5th Cir. 2005).\n 20 8 U.S.C. § 1158(a); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).\n\n 6\n\f Case: 17-60510 Document: 00515026843 Page: 7 Date Filed: 07/09/2019\n\n\n\n No. 17-60510\nopinion.” 21 The burden of proof is on the asylum seeker to demonstrate that he\nmeets the statutory “refugee” definition. 22 Cruz must thus demonstrate three\nthings: (1) He was or likely will be persecuted in El Salvador (2) “on account\nof” (3) his “race, religion, nationality, membership in a particular social group,\nor political opinion.” 23\n Although Cruz submitted evidence about the threats he received, why he\nbelieved these threats were credible, and how prevalent gang activity is in El\nSalvador, our review is limited, focusing only on whether there is substantial\nevidence to support the Board’s finding. 24 In other words, we aren’t weighing\nand evaluating record evidence, deciding which pieces persuade us and which\ndon’t; we are only asking whether the Board could look at the evidence and\nplausibly reach the finding it made.\n We think substantial evidence supports the Board’s no-past-persecution\nfinding. Although Cruz testified that the gang’s threats were against his entire\nfamily, he admitted that his family members who still live in El Salvador have\nexperienced no problems with the Revolutionaries. His mother still lives in the\nhome where the threatening note was posted, and she has encountered no\ndifficulties with the gang.\n For the same reasons, we cannot say the Board abused its discretion in\nfinding a lack of well-founded fear of future persecution—the rest of the Cruz\nfamily has been safe. But there’s a small, additional step to our future-\npersecution inquiry. When the applicant has not demonstrated past\npersecution, he has the burden to demonstrate that relocating within his home\n\n\n\n 21 8 U.S.C. § 1101(a)(42); see also Dayo v. Holder, 687 F.3d 653, 657 (5th Cir. 2012)\n(“To qualify for asylum, an applicant must show he is a refugee by proving he suffered past\npersecution or has a well-founded fear of future persecution.”).\n 22 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(a).\n 23 8 U.S.C. § 1101(a)(42).\n 24 See Long, 420 F.3d at 519.\n\n 7\n\f Case: 17-60510 Document: 00515026843 Page: 8 Date Filed: 07/09/2019\n\n\n\n No. 17-60510\ncountry would be unreasonable. 25 Cruz admitted that he never attempted to\nrelocate. Combined with his mother’s continued safety, this constitutes\nsubstantial evidence to back-up the Board’s finding that there is no well-\nfounded fear of future persecution.\n In sum, we cannot say that the Board went so far afield “that no\nreasonable factfinder could reach a contrary conclusion.” 26 So, because the\nBoard did not abuse its discretion in finding no persecution, Cruz’s asylum\nclaim fails. 27\n * * *\n For these reasons, we DENY Cruz’s petition for review.\n\n\n\n\n 25 8 CFR 1208.13(b)(3)(i); Eduard, 379 F.3d at 194 (“Because there was no showing of\npast persecution, Petitioners had the burden to establish that their relocation was\nunreasonable.”).\n 26 Zhao, 404 F.3d at 306 (citing Elias-Zacarias, 502 U.S. at 481 n.1).\n 27 While we conclude that substantial evidence supports the BIA’s no-persecution\n\ndetermination, we also note, but need not resolve, another issue: whether Cruz’s status as a\nformer police officer falls within “particular social group.” 8 U.S.C. § 1101(a)(42). The Board,\nin its Matter of Fuentes decision, distinguished between current and former police officers,\nrecognizing that “status as a former member of the national police . . . is in fact an immutable\ncharacteristic” that could count as a particular social group under the statute. 19 I. & N. 658,\n661–62 (1988) (emphasis added). It also explained that current police officers could count too,\nif the persecution they face doesn’t fall within the type and degree of harm police officers\ntypically expect to encounter as part of the job. Our circuit has not squarely addressed this\ncurrent-versus-former-officer distinction. See Tamara-Gomez, 447 F.3d at 349 (failing to\naddress the distinction); see also Gharti-Magar v. Holder, 551 F. App’x 197, 198–99 (5th Cir.\n2014) (per curiam) (denying asylum to a Nepalese police officer and not discussing the\ndistinction between current and former officers). The parties in today’s case did not provide\ndetailed briefing on this issue, nor was it discussed by the BIA. As our decision pivots on\n“substantial evidence,” we need not reach the current-versus-former-officer issue.\n 8\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Jose Nelson CRUZ; Nelson Steven Cruz-Villega, Petitioners, v. William P. BARR, U. S. Attorney General, Respondent.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-09\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-60510 Document: 00515026843 Page: 1 Date Filed: 07/09/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 17-60510 July 9, 2019\\n Lyle W. Cayce\\nJOSE NELSON CRUZ; NELSON STEVEN CRUZ-VILLEGA, Clerk\\n\\n\\n Petitioners,\\n\\nv.\\n\\nWILLIAM P. BARR, U. S. ATTORNEY GENERAL,\\n\\n Respondent.\\n\\n\\n Petitions for Review of an Order\\n of the Board of Immigration Appeals\\n\\n\\nBefore KING, SMITH, and WILLETT, Circuit Judges.\\nDON R. WILLETT, Circuit Judge:\\n Jose Cruz, a former Salvadoran police officer, fled his home country and\\nillegally entered the United States with his son after receiving threats from\\nthe Revolutionaries—a faction of the Barrio 18 gang. Conceding his\\nremovability, Cruz requested asylum, withholding of deportation, and\\nprotection under the United Nations Convention Against Torture.\\n The Immigration Judge denied all relief, as did the Board of Immigration\\nAppeals, which accepted the Immigration Judge’s key findings that (1) Cruz\\ndid not suffer past persecution in El Salvador, (2) Cruz failed to satisfy his\\nburden of establishing a well-founded fear of future persecution, and (3)\\nbecause Cruz failed to make a prima facie showing on his asylum claim, he\\nnecessarily failed to make the more stringent showing for withholding of\\n\\f Case: 17-60510 Document: 00515026843 Page: 2 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-60510\\nremoval. The Board denied relief across the board, and Cruz brought this\\npetition for review.\\n Under the highly deferential standards of review that guide our analysis,\\nwe conclude that the Board committed no reversible error. We DENY Cruz’s\\npetition for review.\\n I\\n In El Salvador, Cruz patrolled his hometown of Zacatecoluca. The\\nRevolutionaries didn’t like that and threatened Cruz. The first threat came\\nwhen Cruz was sitting in a car with his son. Gang members approached Cruz\\nand told him “they knew him, knew where he lived, and wanted him out of the\\nterritory.” One member raised his shirt to show his gang tattoos and a gun in\\nhis waistband. They told Cruz that they weren’t going to kill him then and\\nthere because his son was with him, and there were too many witnesses. Cruz\\nreported the incident to police officials the next day and then asked for (and\\nreceived) a three-year leave of absence.\\n The next threat, not long after, was a threatening note left on Cruz’s\\ndoor: “We don’t want to see you in our neighborhood again, or you are going to\\nregret it.” Later that day, the gang’s leader called Cruz and told him that he’d\\nbeen given the green light to murder Cruz and his son unless Cruz left town.\\nSo Cruz fled the country with his son later that month. His mother continues\\nto live in their Salvadoran home, though, and has not received any additional\\nthreats or harassment.\\n Cruz entered the United States illegally and was apprehended.\\nAdmitting he was removable, Cruz applied for asylum, withholding of removal,\\nand protection under the Convention Against Torture.\\n The Immigration Judge denied all relief. Although the IJ sympathized\\nwith Cruz and his family, he nonetheless held that Cruz “failed to meet his\\nburden of proof to establish he was persecuted, or suffered past persecution, or\\n 2\\n\\f Case: 17-60510 Document: 00515026843 Page: 3 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-60510\\nhas a well-founded fear of future persecution on account of a protected ground\\nif he is returned to El Salvador.” As the IJ saw it, the threats Cruz received\\n“did not arise to the level that . . . would constitute persecution.” 1 Finally, the\\nIJ denied Cruz’s Convention petition because Cruz “provided insufficient\\nevidence” of torture, past or future, at the hands of Salvadoran officials acting\\nin their official capacity.\\n Cruz appealed the IJ’s decision to the Board, which found no error: “The\\nrecord [did] not demonstrate that [Cruz was] subjected to extreme conduct\\nconstituting past persecution.” Nor did the Board buy Cruz’s well-founded-\\nfear-of-future-persecution claim. The Board believed he could’ve reasonably\\navoided persecution by relocating to another part of El Salvador 2—something\\nCruz admitted that he never attempted to do. And the Board emphasized that\\nthe gang had never threatened any of Cruz’s family members in El Salvador.\\nSince Cruz failed to make a prima facie asylum showing, he necessarily failed\\nto make the more rigorous showing necessary to justify withholding of\\nremoval. 3\\n Concerning Cruz’s petition for protection under the Convention, the\\nBoard found that Cruz did not show that it is more likely than not that a\\n“person acting in a public capacity” would “inflict,” “acquiesce,” or “give consent\\nto . . . torture.” 4 As there was no state action, the Board concluded that the IJ\\nproperly denied Cruz’s request for Convention protection.\\n\\n\\n\\n 1 “To the extent that [Cruz] fears gang activity,” the IJ remarked, “that is merely a\\nfear that [he] may be the victim of crime, not persecuted on account of a protected ground.”\\n 2 See Eduard v. Ashcroft, 379 F.3d 182, 194 (5th Cir. 2004) (“An applicant does not\\n\\nhave a well-founded fear of persecution if the applicant could avoid persecution by relocating\\nto another part of the applicant’s country of nationality.” (quoting 8 C.F.R. § 208.13(b)(2)(ii))).\\n 3 See Adebisi v. INS, 952 F.2d 910, 914 (5th Cir. 1992).\\n 4 See Tamara-Gomez, 447 F.3d at 351 (“The Convention Against Torture requires a\\n\\n‘public official’ or ‘person acting in a public capacity’ to ‘inflict,’ ‘acquiesce,’ or ‘give consent’ to\\nthe torture.”).\\n 3\\n\\f Case: 17-60510 Document: 00515026843 Page: 4 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-60510\\n Cruz filed a timely motion seeking to reopen proceedings and to\\nreconsider the Board’s decision. The Board denied the motion. Cruz then\\nappealed both the Board’s decision affirming the IJ and the denial of his\\nmotions to reconsider and to reopen proceedings. We consolidated the appeals.\\nCruz does not appeal the Board’s denial of relief under the Convention Against\\nTorture, so those arguments are waived. 5\\n II\\n Our review is limited and deferential. Motions to reopen removal\\nproceedings are disfavored, 6 and we review denials of such motions “under a\\nhighly deferential abuse-of-discretion standard.” 7 We review the Board’s\\nfactual findings under the substantial-evidence test, reversing only when the\\nrecord is “so compelling that no reasonable fact finder could fail to find the\\npetitioner statutorily eligible for relief.” 8\\n On appeal, Cruz asserts that he suffered past persecution and has a well-\\nfounded fear of future persecution. He also argues that the Board abused its\\ndiscretion in denying his motion to reconsider. Under the governing standards\\nof review, we cannot say the Board committed reversible error.\\n A\\n Let’s begin with the motion to reconsider. It is Cruz’s burden to identify\\nan error of law or an argument that slipped through the cracks. Cruz contends\\nthat the Board applied the wrong standard of review to the IJ’s finding (that\\nCruz did not suffer past persecution), a legal error if he can prove it.\\n\\n\\n\\n 5 “It is a well worn principle that the failure to raise an issue on appeal constitutes\\nwaiver of that argument.” United States v. Griffith, 522 F.3d 607, 610 (5th Cir. 2008) (citing\\nUnited States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000)).\\n 6 Altamirano-Lopez v. Gonzales, 435 F.3d 547, 549 (5th 2006).\\n 7 Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th 2009); see 8 C.F.R. § 1003.2(a) (“The\\n\\ndecision to grant or deny a motion to reopen or reconsider is within the discretion of the Board\\nsubject to the restrictions of this section.”).\\n 8 Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004) (per curiam).\\n\\n 4\\n\\f Case: 17-60510 Document: 00515026843 Page: 5 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-60510\\nUnfortunately, he fails to cite pertinent authority to support this proposition.\\nAs explained below, the Board did not misstep.\\n Under 8 U.S.C. § 1229a(c)(6)(C), a motion to reconsider must “specify the\\nerrors of law or fact in the previous order and shall be supported by pertinent\\nauthority.” 9 And federal law provides just one shot: “A party may only file one\\nmotion to reconsider any given decision and may not seek reconsideration of a\\ndecision denying a previous motion to reconsider.” 10 Finally, the Board\\npossesses broad leeway: “The decision to grant or deny a motion to reopen or\\nreconsider is within the discretion of the Board . . . .” 11 This wide discretion\\npersists “even if the party moving has made out a prima facie case for relief.” 12\\n Congress has granted the Board abundant leeway, and we review the\\nBoard’s denial of a motion to reopen “under a highly deferential abuse of\\ndiscretion standard.” 13 As noted above, we must affirm the Board’s refusal to\\nreopen, even if we believe the refusal was error, “so long as it is not capricious,\\nracially invidious, utterly without foundation in the evidence, or otherwise so\\nirrational that it is arbitrary rather than the result of any perceptible rational\\napproach.” 14 As for the Board’s legal conclusions, we review those de novo. 15\\n Cruz asserts that the Board applied the wrong standard of review to the\\nIJ’s lack-of-past-persecution finding—reviewing the decision for clear error,\\nrather than de novo. Cruz says that the Board compounded this error when it\\ndenied his motion to reconsider. He maintains that “[w]hile an IJ’s factual\\n\\n\\n 9 It must also “state the reasons for the motion by specifying the errors of fact or law\\nin the prior Board decision and shall be supported by pertinent authority.” 8 C.F.R.\\n§ 1003.2(b)(1).\\n 10 8 C.F.R. § 1003.2(b)(2).\\n 11 Id. § 1003.2(a).\\n 12 Id.\\n 13 Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005); see, e.g., Lowe v. Sessions, 872\\n\\nF.3d 713, 715 & n.1 (5th Cir. 2017) (collecting cases).\\n 14 Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (quoting Zhao, 404 F.3d at 304).\\n 15 Id.\\n\\n 5\\n\\f Case: 17-60510 Document: 00515026843 Page: 6 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-60510\\ndeterminations can be reviewed only for clear error, an IJ’s decisions based\\nupon law or judgment may be reviewed de novo.” 16 He frames the persecution\\nissue as a legal (not factual) issue that deserves fresh-eyed de novo review.\\n The government replies that Cruz can’t cite any legal authority for this\\nproposition. And since he provided the Board with no legal basis to grant his\\nmotion to reconsider, the Board didn’t abuse its discretion when it denied the\\nmotion.\\n We agree with the Government on this point. The Board did not abuse\\nits discretion in denying Cruz’s motion to reconsider because supporting\\nauthority was wholly absent from Cruz’s motion 17—other than the regulatory\\nstandard of review for questions of law. 18\\n B\\n The Board held that the IJ could reasonably have found that Cruz didn’t\\nsuffer past persecution and didn’t have a well-founded fear of future\\npersecution. Even though Cruz presented plenty of evidence to demonstrate\\npast and future persecution, we can’t say that the evidence compels a finding\\nof persecution; accordingly, the Board did not abuse its discretion. 19\\n The Attorney General has discretion to grant asylum to “refugees” 20—\\nthat is, aliens who are “unable or unwilling to return to their home country\\nbecause of persecution or a well-founded fear of persecution on account of race,\\nreligion, nationality, membership in a particular social group, or political\\n\\n\\n\\n\\n 16 See 8 C.F.R. § 1003.1(d)(3)(i)–(ii).\\n 17 “The motion does not identify any error of law . . . or identify any argument\\nadvanced that was overlooked by the Board.”\\n 18 8 C.F.R. § 1003.1(d)(3)(ii).\\n 19 Long v. Gonzales, 420 F.3d 516, 519 (5th Cir. 2005).\\n 20 8 U.S.C. § 1158(a); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).\\n\\n 6\\n\\f Case: 17-60510 Document: 00515026843 Page: 7 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-60510\\nopinion.” 21 The burden of proof is on the asylum seeker to demonstrate that he\\nmeets the statutory “refugee” definition. 22 Cruz must thus demonstrate three\\nthings: (1) He was or likely will be persecuted in El Salvador (2) “on account\\nof” (3) his “race, religion, nationality, membership in a particular social group,\\nor political opinion.” 23\\n Although Cruz submitted evidence about the threats he received, why he\\nbelieved these threats were credible, and how prevalent gang activity is in El\\nSalvador, our review is limited, focusing only on whether there is substantial\\nevidence to support the Board’s finding. 24 In other words, we aren’t weighing\\nand evaluating record evidence, deciding which pieces persuade us and which\\ndon’t; we are only asking whether the Board could look at the evidence and\\nplausibly reach the finding it made.\\n We think substantial evidence supports the Board’s no-past-persecution\\nfinding. Although Cruz testified that the gang’s threats were against his entire\\nfamily, he admitted that his family members who still live in El Salvador have\\nexperienced no problems with the Revolutionaries. His mother still lives in the\\nhome where the threatening note was posted, and she has encountered no\\ndifficulties with the gang.\\n For the same reasons, we cannot say the Board abused its discretion in\\nfinding a lack of well-founded fear of future persecution—the rest of the Cruz\\nfamily has been safe. But there’s a small, additional step to our future-\\npersecution inquiry. When the applicant has not demonstrated past\\npersecution, he has the burden to demonstrate that relocating within his home\\n\\n\\n\\n 21 8 U.S.C. § 1101(a)(42); see also Dayo v. Holder, 687 F.3d 653, 657 (5th Cir. 2012)\\n(“To qualify for asylum, an applicant must show he is a refugee by proving he suffered past\\npersecution or has a well-founded fear of future persecution.”).\\n 22 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(a).\\n 23 8 U.S.C. § 1101(a)(42).\\n 24 See Long, 420 F.3d at 519.\\n\\n 7\\n\\f Case: 17-60510 Document: 00515026843 Page: 8 Date Filed: 07/09/2019\\n\\n\\n\\n No. 17-60510\\ncountry would be unreasonable. 25 Cruz admitted that he never attempted to\\nrelocate. Combined with his mother’s continued safety, this constitutes\\nsubstantial evidence to back-up the Board’s finding that there is no well-\\nfounded fear of future persecution.\\n In sum, we cannot say that the Board went so far afield “that no\\nreasonable factfinder could reach a contrary conclusion.” 26 So, because the\\nBoard did not abuse its discretion in finding no persecution, Cruz’s asylum\\nclaim fails. 27\\n * * *\\n For these reasons, we DENY Cruz’s petition for review.\\n\\n\\n\\n\\n 25 8 CFR 1208.13(b)(3)(i); Eduard, 379 F.3d at 194 (“Because there was no showing of\\npast persecution, Petitioners had the burden to establish that their relocation was\\nunreasonable.”).\\n 26 Zhao, 404 F.3d at 306 (citing Elias-Zacarias, 502 U.S. at 481 n.1).\\n 27 While we conclude that substantial evidence supports the BIA’s no-persecution\\n\\ndetermination, we also note, but need not resolve, another issue: whether Cruz’s status as a\\nformer police officer falls within “particular social group.” 8 U.S.C. § 1101(a)(42). The Board,\\nin its Matter of Fuentes decision, distinguished between current and former police officers,\\nrecognizing that “status as a former member of the national police . . . is in fact an immutable\\ncharacteristic” that could count as a particular social group under the statute. 19 I. & N. 658,\\n661–62 (1988) (emphasis added). It also explained that current police officers could count too,\\nif the persecution they face doesn’t fall within the type and degree of harm police officers\\ntypically expect to encounter as part of the job. Our circuit has not squarely addressed this\\ncurrent-versus-former-officer distinction. See Tamara-Gomez, 447 F.3d at 349 (failing to\\naddress the distinction); see also Gharti-Magar v. Holder, 551 F. App’x 197, 198–99 (5th Cir.\\n2014) (per curiam) (denying asylum to a Nepalese police officer and not discussing the\\ndistinction between current and former officers). The parties in today’s case did not provide\\ndetailed briefing on this issue, nor was it discussed by the BIA. As our decision pivots on\\n“substantial evidence,” we need not reach the current-versus-former-officer issue.\\n 8\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2990,"cells":{"id":{"kind":"number","value":4638095,"string":"4,638,095"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Lazandy DANIELS, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Lazandy Daniels"},"decision_date":{"kind":"string","value":"2019-07-10"},"docket_number":{"kind":"string","value":"18-30791"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"King, Smith, Willett\", \"parties\": \"\", \"opinions\": [{\"author\": \"DON R. WILLETT, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-30791 Document: 00515027992 Page: 1 Date Filed: 07/10/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 18-30791 FILED\\n July 10, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n Plaintiff–Appellee,\\n\\nv.\\n\\nLAZANDY DANIELS,\\n\\n Defendant–Appellant.\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Louisiana\\n\\n\\nBefore KING, SMITH, and WILLETT, Circuit Judges.\\nDON R. WILLETT, Circuit Judge:\\n A jury convicted Lazandy Daniels of distributing crack cocaine, aiding\\nand abetting possession with intent to distribute crack cocaine, and conspiring\\nto distribute powder and crack cocaine. Daniels asserts three errors: (1) the\\ndistrict court wrongly denied his motion to suppress evidence; (2) the district\\ncourt wrongly denied him the opportunity to cross-examine an adverse witness\\nin violation of the Sixth Amendment; and (3) the trial evidence was insufficient\\nto convict him. We reject Daniels’s arguments and AFFIRM his convictions.\\n I\\n A\\n This story starts with Craig James, a cocaine dealer who made his living\\ntransporting drugs and money between Houston and New Orleans. The\\n\\f Case: 18-30791 Document: 00515027992 Page: 2 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\ndefendant, Daniels, met James through his brother, Lindsey Daniels. Lindsey\\nwas a middle man, purchasing cocaine from James and then turning around\\nand reselling it. As part of their partnership, Lindsey let James use his New\\nOrleans salvage yard for transporting drugs. James would buy cars at auction\\nin one city, store cocaine in them, and transport the cars to the other city. He\\nalso used this strategy to move money.\\n The law eventually caught up with Lindsey. But James continued to use\\nthe salvage yard. Daniels started working more closely with James, helping\\nhim unload the cocaine from the cars and pack them with money before they\\nreturned to Houston. Sometimes Daniels was around when James distributed\\nthe drugs, and he would help James package the concomitant cash in\\ncellophane. Daniels even dabbled in the drug game himself: James testified\\n(and others confirmed) that he occasionally gave Daniels small amounts of\\ncocaine to sell.\\n Besides helping James move cocaine, Daniels acted as James’s\\nchauffeur. When James was in New Orleans, Daniels would “[t]ake [James] to\\ngo get food, pick [him] up from the airport, take [him] to [his] hotel room, things\\nlike that.” James said he asked Daniels to carry out these tasks because\\nDaniels “was a friend . . . . It wasn’t just all business. He was a friend. I trusted\\nhim.”\\nMay 4, 2015 State Arrest\\n In May 2015, Daniels was arrested for selling crack cocaine outside his\\nhouse. While conducting surveillance as part of a street-level narcotics\\ninvestigation, New Orleans police Sergeant Joseph Davis noticed a woman in\\na white SUV stop her car, step out, and approach Daniels, who was standing\\non the street. She handed something to Daniels, who went into his house.\\nDaniels came back out and handed her another object; then she got back into\\nher car.\\n 2\\n\\f Case: 18-30791 Document: 00515027992 Page: 3 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\n Suspicious, Davis followed the SUV and radioed his fellow officers to pull\\nit over. While attempting to do so, Officer Jeraire Bridges saw the woman drop\\na small item from her window. Once the woman had pulled over, Bridges\\nretrieved the dropped item. It appeared (and was later confirmed) to be a\\nplastic bag of crack cocaine. The officers arrested the woman.\\n Later that day, New Orleans police officers arrested Daniels. The officers\\nfound him sitting in a pickup truck outside his house. The officers searched the\\ntruck and the house, finding $2,325 in cash in the vehicle, a video recording\\nsystem monitoring the residence, and what turned out to be cocaine residue in\\na mug in the house. Daniels was charged in Orleans Parish Criminal District\\nCourt with possession with the intent to distribute cocaine.\\nDecember 2, 2015 Drug Enforcement Agency Arrest\\n These December incidents were initially unrelated to Daniels’s May\\narrest—they arose out of the DEA’s separate surveillance spearheaded by\\nAgents Justin Moran and Christopher Johnson. Thanks to a confidential tip,\\nthe DEA learned that James was coming to New Orleans in early December to\\ncollect some money. Upon his arrival, James took a taxi to the Super 8 Motel\\non Chef Menteur Highway and rented a room.\\n James testified that on December 1, 2015, a friend paid him an evening\\nvisit, bringing James a duffle bag filled with various drug paraphernalia,\\nincluding a scale and cowboy boots stuffed with a cutting agent. Daniels came\\nby that evening and the next morning to “check on” James. Around noon,\\nDaniels left to go to his brother’s salvage yard. He returned around 12:34 p.m.\\nBefore entering the motel, he retrieved from his trunk a long, thin item that\\nhe kept under his jacket. The concealed item was a roll of cellophane for\\nwrapping cash, but the surveilling DEA agents thought it might be a weapon.\\n Around 2:00 p.m., James’s brother-in-law, Joppa Jackson (whom the\\nDEA agents recognized from previous narcotics investigations), came to the\\n 3\\n\\f Case: 18-30791 Document: 00515027992 Page: 4 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\nmotel in his pickup truck. James left Daniels in the motel room and got into\\nthe pickup, which never left the parking lot. After a bit, James got out of the\\ntruck with a bag of money, repayment for cocaine James had given Joppa.\\n Eight minutes later, Daniels and James left the motel to dine at a\\nrestaurant for a couple hours. The pair returned to the motel room in the late\\nafternoon. At around 6:40 p.m., Leon Jackson, James’s other brother-in-law,\\narrived. When Leon exited the motel, DEA Agent Demond Lockhart\\napproached him to perform an investigatory stop. Agent Lockhart searched\\nLeon’s bag and vehicle and hit the jackpot: several thousand dollars.\\nThe Knock-and-Talk\\n After interviewing Leon Jackson, the DEA agents decided to do a “knock-\\nand-talk,” (when officers knock on a door, contact the resident, and ask to\\nsearch the residence). As he approached the room, DEA Agent Michael Greaves\\ncould smell marijuana. Agent Greaves knocked on the door, and James asked\\nwho was there. Greaves initially pretended that he had hit James’s car. James\\ndid not open the door. Greaves then announced that he was with the police and\\nasked James to open the door so they could talk.\\n After knocking for two minutes, Greaves heard Moran, who was standing\\nto his left by the motel-room’s window, say that he could hear the toilet\\nflushing. Greaves, inferring that James was destroying evidence, decided to\\nkick down the door. DEA Agent Kevin Treigle searched the bathroom, finding\\nDaniels seated on the toilet, fully clothed, with the seat cover down.\\n In the room, the officers found a long roll of cellophane, a plastic bag\\nfilled with cutting agent, a black duffle bag with lots of cash, much of which\\nwas wrapped in cellophane, a digital scale, and crack cocaine. They seized\\napproximately $286,000 and approximately six ounces of crack cocaine.\\n\\n\\n\\n\\n 4\\n\\f Case: 18-30791 Document: 00515027992 Page: 5 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\n B\\n Daniels was charged with one count of conspiracy to distribute 5\\nkilograms or more of powder cocaine and 28 grams or more of crack cocaine;\\none count of distributing crack cocaine on May 4, 2015; and one count of\\npossessing with intent to distribute 28 grams or more of crack cocaine on\\nDecember 2, 2015.\\n Daniels moved to suppress the motel-search evidence, arguing that no\\nexigency supported the warrantless search. The district court conducted a\\nsuppression hearing. Several DEA agents testified regarding the knock-and-\\ntalk and resulting search. Pertinently, DEA Agent Francisco Del Valle testified\\nthat he had heard the toilet flush while Agent Greaves was knocking on the\\nmotel-room door. Daniels had the opportunity to cross-examine each of the\\nGovernment’s witnesses.\\n Daniels also attempted to subpoena Agent Moran to have him testify at\\nthe hearing. At the time, Moran was under investigation for misconduct, and\\nhe asserted his Fifth Amendment rights. Although the court did not require\\nMoran to testify, it allowed Daniels’s counsel to explain what he wanted to ask\\nMoran.\\n The district court denied Daniels’s motion to suppress, holding that he\\ndidn’t have standing to challenge the motel-room search because there was no\\nevidence indicating he intended to stay overnight. And even if Daniels had\\nstanding, the Fourth Amendment’s exigency exception permitted the search.\\nThe flushing sounds gave the officers “probable cause to believe that there was\\nevidence of criminal activity in the room, and that the evidence was being\\ndestroyed.”\\n In preparation for trial, the Government filed a motion in limine to\\npreclude Daniels from attacking the credibility of its witnesses based on Agent\\nMoran’s alleged misconduct. The Government asked the court to prohibit\\n 5\\n\\f Case: 18-30791 Document: 00515027992 Page: 6 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\nDaniels from “[i]nflaming the [j]ury” by referencing the investigation during\\ntrial, arguing that it was irrelevant. The district court granted the motion,\\nfinding Moran’s alleged misconduct “unrelated to the matter at hand.”\\n The case went before a jury. The Government called twelve witnesses,\\namong them Agents Greaves and Treigle (the New Orleans police officers\\ninvolved in the May 4 arrest) and Daniels’s alleged co-conspirators, Joppa\\nJackson and James. At the close of the Government’s case in chief, Daniels\\nmoved for judgment of acquittal, which the court denied. Daniels submitted\\nseveral exhibits to the jury, but he did not testify in his own defense or call any\\nwitnesses to testify. The jury found Daniels guilty of all three counts. The court\\nsentenced Daniels to 240 months’ imprisonment as to all three counts, to be\\nserved concurrently, and ten years of supervised release. Daniels appealed. 1\\n II\\n The district court had jurisdiction under 18 U.S.C. § 3231. And we have\\nappellate jurisdiction under 28 U.S.C. § 1291.\\n III\\n A\\n First, Daniels challenges the district court’s denial of his motion to\\nsuppress the evidence from the motel-room search. “When a district court\\ndenies a motion to suppress evidence, we review the factual findings for clear\\nerror and legal conclusions . . . de novo.” 2 And we may affirm the decision below\\n\\n\\n\\n\\n 1 During the sentencing hearing, Daniels expressed his frustration with his lawyer.\\nAt the close of the hearing, Daniels’s counsel made an oral motion to withdraw as counsel,\\nwhich the court granted. Daniels then petitioned to vacate his sentence under 28 U.S.C. §\\n2255, arguing his counsel failed to follow his instructions to file an appeal. After an\\nevidentiary hearing, the court ordered that Daniels be allowed to file an out-of-time appeal\\nand dismissed his § 2255 motion as premature.\\n 2 United States v. Beene, 818 F.3d 157, 161 (5th Cir. 2016).\\n\\n 6\\n\\f Case: 18-30791 Document: 00515027992 Page: 7 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\n“on any basis established by the record.” 3 The burden is on Daniels to prove,\\n“by a preponderance of the evidence, that the evidence in question was\\nobtained in violation of his Fourth Amendment rights.” 4\\n “The exclusionary rule allows a defendant to suppress the evidentiary\\nfruits of a violation of his Fourth Amendment rights” to be free of unreasonable\\nsearches and seizures. 5 Although “searches and seizures inside a home without\\na warrant are presumptively unreasonable,” 6 an officer may search a person’s\\nproperty if “ ‘the exigencies of the situation’ make the needs of law enforcement\\nso compelling that [a] warrantless search is objectively reasonable.” 7 A valid\\nexigency exists when an officer believes that evidence is being destroyed—\\nalthough an officer “may not rely on the need to prevent destruction of evidence\\nwhen that exigency was ‘created’ or ‘manufactured’ by the conduct of the\\npolice.” 8 In other words, an officer may not “engag[e] or threaten[] to engage in\\nconduct that violates the Fourth Amendment” in order to create an exigency\\njustifying warrantless entry. 9\\n Assuming without deciding the issue of standing, we will first address\\nwhether there was an exigency justifying the search. 10 To do so, we use a non-\\nexhaustive five-factor test:\\n (1) the degree of urgency involved and the amount of time\\n necessary to obtain a warrant; (2) the reasonable belief that\\n\\n\\n 3 United States v. Iraheta, 764 F.3d 455, 460 (5th Cir. 2014) (quoting United States v.\\nPack, 612 F.3d 341, 347 (5th Cir. 2010)).\\n 4 Id. (quoting United States v. Kelley, 981 F.2d 1464, 1467 (5th Cir. 1993)).\\n 5 Pack, 612 F.3d at 347.\\n 6 Kentucky v. King, 563 U.S. 452, 459 (2011) (quoting Brigham City v. Stuart, 547 U.S.\\n\\n398, 403 (2006)).\\n 7 Id. at 460 (alteration in original) (quoting Mincey v. Arizona, 437 U.S. 385, 394\\n\\n(1978)).\\n 8 Id. at 461.\\n 9 Id. at 462.\\n 10 See United States v. Flores, 640 F.3d 638, 642 (5th Cir. 2011) (“[E]ven assuming [the\\n\\nDefendant] has standing to challenge the search, the good-faith exception to the exclusionary\\nrule applies under these facts.”).\\n 7\\n\\f Case: 18-30791 Document: 00515027992 Page: 8 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\n contraband is about to be removed; (3) the possibility of danger to\\n the police officers guarding the site of contraband while a search\\n warrant is sought; (4) the information indicating that the\\n possessors of the contraband are aware that the police are on their\\n trail; and (5) the ready destructibility of the contraband and the\\n knowledge that efforts to dispose of it and to escape are\\n characteristics in which those trafficking in contraband generally\\n engage. 11\\n\\n Daniels argues that a “single toilet flush” was not enough to justify entry.\\nIf a solitary flush were the only evidence of exigency in the record, he might be\\nright. But the officers relied on more than just the flush. In fact, they were\\nflush with exigency evidence. After he knocked, Agent Greaves could hear\\n“running throughout the room, running back and forth like from the right side\\nwhere the door was back to the left side by the window.” He says there were\\ntimes when James’s “voice was real close to the door” and when he “could tell\\nhe was much further away from the door,” indicating that James was running\\nback and forth. 12 Agent Greaves had told James he was a police officer, so he\\nwas “aware that the police [were] on [his] trail.” 13 And Agent Webber testified\\nthat it is “not uncommon for drug dealers to flush narcotics down the toilet.”\\nCombined with the toilet-flushing sounds, this all reasonably suggests that the\\nroom’s occupants might have been attempting to destroy evidence. The Aguirre\\nfactors therefore suggest that exigent circumstances existed justifying the\\nwarrantless search. So, the district court did not err in finding there was an\\nexigency to justify the warrantless search. The officers had a full house of\\nevidence, and a full house beats a flush. 14\\n\\n\\n\\n 11 United States v. Aguirre, 664 F.3d 606, 611 (5th Cir. 2011) (quoting United States\\nv. Mata, 517 F.3d 279, 287 (5th Cir. 2008)).\\n 12 Id.\\n 13 Aguirre, 664 F.3d at 611.\\n 14 Poker Rules—How to Play Poker Games, POKERNEWS.COM,\\nhttps://www.pokernews.com/poker-rules/ (last visited July 8, 2019).\\n 8\\n\\f Case: 18-30791 Document: 00515027992 Page: 9 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\n Now that we know an exigency existed, we must ask whether the officers\\ncreated the exigency. 15 Daniels says the officers’ aggressive conduct made him\\nbelieve that he was trapped, in violation of the Fourth Amendment, thereby\\ncreating the exigency. But the officers acted within the bounds of our caselaw.\\nIn King, police “banged on the door as loud as [they] could,” but that did not\\ncreate the exigency. 16 Even though the defendant argued that the officers\\n“demanded” entry, he couldn’t back that up with any evidence in the record. 17\\nLikewise, Daniels does not point to any evidence in the record that the agents\\nactually threatened his Fourth Amendment rights. While the officers here\\nknocked vigorously, the knocking was relatively brief—around two\\nminutes 18—and the officers did not attempt to force entry prior to hearing the\\ntoilet flush. 19 The officers did not create the exigency.\\n Daniels fails to meet his burden of showing a Fourth Amendment\\nviolation. So the district court did not err in denying his motion to suppress. 20\\n B\\n When a defendant makes a general sufficiency-of-the-evidence\\nchallenge, we review the sufficiency of the evidence supporting a conviction de\\nnovo. 21 But where the defendant asserts “specific grounds for a specific element\\nof a specific count” in his motion for judgment of acquittal under Federal Rule\\nof Criminal Procedure 29, the defendant fails to preserve any other grounds; 22\\n\\n\\n 15 See King, 563 U.S. at 461.\\n 16 See id.\\n 17 King, 563 U.S. at 471 (alteration in original).\\n 18 Cf., Westfall v. Luna, 903 F.3d 534, 545 (describing officers’ prolonged attempt to\\n\\nknock on door).\\n 19 See United States v. Hernandez, 392 F. App’x 350, 351–53 (5th Cir. 2010)\\n\\n(unpublished) (finding a Fourth Amendment violation where the officers attempted to force\\nentry by trying to open a locked door and breaking the pane of a screen door with a baton).\\n 20 Iraheta, 764 F.3d at 460.\\n 21 United States v. Brown, 727 F.3d 329, 335 (5th Cir. 2013).\\n 22 Id. (quoting United States v. Herrera, 313 F.3d 882, 884 (5th Cir. 2002) (en banc)\\n\\n(per curiam)).\\n 9\\n\\f Case: 18-30791 Document: 00515027992 Page: 10 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\naccordingly, we must ask whether there has been a “manifest miscarriage of\\njustice.” 23\\n The parties disagree over which standard applies. At the close of the\\nGovernment’s case in chief, Daniels’s counsel stated generally that he was\\nmaking “an oral motion as to a directed verdict as to all counts on the\\nsuperseding indictment as they refer to Mr. Lazandy Daniels.” 24 And although\\nhe made specific points to support the motion, they were not specific to the\\nelements of the crime. We thus review de novo. And “the relevant question is\\nwhether, after viewing the evidence in the light most favorable to the\\nprosecution, any rational trier of fact could have found the essential elements\\nof the crime beyond a reasonable doubt.” 25\\n Count 1 convicted Daniels of conspiring to distribute 5 kilograms or more\\nof powder cocaine and 28 grams or more of crack cocaine. Per Supreme Court\\ndirective, “[a] conviction for a drug conspiracy requires proof of ‘(1) an\\nagreement between two or more persons to violate the narcotics laws, (2) the\\ndefendant’s knowledge of the agreement, and (3) the defendant’s voluntary\\nparticipation in the conspiracy.’ ” 26 Here, the alleged “violat[ion of] the\\nnarcotics laws” is distributing cocaine, so, we must ask whether there was an\\nagreement to “(1) knowingly (2) distribute[ ] (3) cocaine.” 27\\n Having reviewed the record, we hold that the evidence was more than\\nsufficient for a rational trier of fact to convict Daniels. Although Daniels seeks\\n\\n\\n\\n 23 Id. (quoting United States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007)).\\n 24 See United States v. McCall, 553 F.3d 821, 830 (5th Cir. 2008) (“Rule 29 motions\\nneed not be specific.”).\\n 25 United States v. Cooper, 714 F.3d 873, 880 (5th Cir. 2013) (quoting United States v.\\n\\nUvalle–Patricio, 478 F.3d 699, 701 (5th Cir. 2007)).\\n 26 United States v. Scott, 892 F.3d 791, 797 (5th Cir. 2018) (quoting United States v.\\n\\nBooker, 334 F.3d 406, 409 (5th Cir. 2003)).\\n 27 United States v. Gordon, 876 F.2d 1121, 1125 (5th Cir. 1989) (citing 21 U.S.C §\\n\\n841(a)(1)).\\n 10\\n\\f Case: 18-30791 Document: 00515027992 Page: 11 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\nto characterize himself as James’s unwitting, overly helpful friend, the trial\\nevidence was sufficient to prove that Daniels agreed to distribute both powder\\nand crack cocaine; that he knew about the agreement; and that he participated\\nvoluntarily. 28 James and Joppa Jackson testified that Daniels helped them\\ntransport cocaine from Houston to New Orleans. 29 Sometimes Daniels would\\nprovide drugs to Joppa Jackson even when James wasn’t around. James also\\ntestified that Daniels helped him wrap money in cellophane and load the cars\\nwith money “[a]ll the time.” Both James and Joppa Jackson testified that they\\nfronted crack cocaine to Daniels so that Daniels could sell it.\\n A rational trier of fact could easily find that Daniels was conspiring to\\ndistribute 5 kilograms or more of powder cocaine and 28 grams or more of crack\\ncocaine beyond a reasonable doubt. There was sufficient evidence to convict\\nDaniels of Count 1.\\n Count 2 accused Daniels of knowingly and intentionally distributing\\ncrack cocaine on May 4, 2015 (the white SUV episode). As with Count 1, there’s\\nample evidence to show that Daniels “(1) knowingly (2) distributed (3) [crack]\\ncocaine.” 30\\n The jury saw video footage of the transaction. Officers apprehended the\\nwoman shortly after and saw her throw a piece of crack cocaine out her car\\nwindow. And when officers searched Daniels’s house later, they found cocaine\\nresidue and $2,000 in cash. A rational trier of fact could easily find that Daniels\\nknowingly and intentionally distributed crack cocaine. There was no error.\\n\\n\\n\\n\\n 28 See Scott, 892 F.3d at 797.\\n 29 Joppa testified that he would buy “between 10 and 20” kilograms of cocaine from\\nJames at a time, which he would pick up from Daniels at the salvage yard. James also\\ntestified that Daniels would help him unload anywhere from 4 to 12 kilograms of cocaine\\nfrom the cars at a time.\\n 30 Gordon, 876 F.2d at 1125.\\n\\n 11\\n\\f Case: 18-30791 Document: 00515027992 Page: 12 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\n Count 3 accused Daniels of aiding and abetting the knowing and\\nintentional possession of 28 grams or more of crack cocaine with intent to\\ndistribute on December 2, 2015 (the motel-room episode). 31 As we reiterated in\\nUnited States v. Cain, “[t]he essential elements of possession with the intent\\nto distribute controlled substances . . . are 1) knowledge, 2) possession, and 3)\\nintent to distribute the controlled substances.” 32 A conviction for aiding and\\nabetting requires proof that “the substantive offense occurred and that the\\ndefendant (1) associated with the criminal venture; (2) purposefully\\nparticipated in the crime; and (3) sought by his actions for it to succeed.” 33 And\\nas Scott clarified, a defendant who aids and abets the possession with intent to\\ndistribute a controlled substance “need not have actual or constructive\\npossession of the drugs.” 34\\n Daniels’s arguments focus on possession of the drugs. He says he didn’t\\nhave any drugs on him when he was found in the motel bathroom and that his\\nfriend was the only person who actually brought crack cocaine to the motel\\nroom. But Count 3 was for aiding and abetting, so actual or constructive\\npossession is irrelevant. 35\\n The record clearly reflects Daniels’s association with the criminal\\nventure. As already mentioned, Daniels has a long history of assisting James\\nwith his drug smuggling business. He also closely associated himself with the\\ncriminal venture on the day in question by coming and going from the motel\\nroom and by dining with the other participants.\\n\\n\\n\\n 31 We think it important to note that while the First Superseding Indictment charged\\nDaniels with intentional possession, his ultimate conviction was for aiding and abetting.\\n 32 440 F.3d 672, 675 (5th Cir. 2006) (quoting United States v. Delgado, 256 F.3d 264,\\n\\n274 (5th Cir. 2001)).\\n 33 Scott, 892 F.3d at 798 (quoting United States v. Pando Franco, 503 F.3d 389, 394\\n\\n(5th Cir. 2007)).\\n 34 Id. at 799 (quoting United States v. Williams, 985 F.2d 749, 753 (5th Cir. 1993)).\\n 35 See Scott, 892 F.3d at 799\\n\\n 12\\n\\f Case: 18-30791 Document: 00515027992 Page: 13 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\n The record is replete with evidence relevant to elements two and three:\\n(2) purposeful participation and (3) seeking the crime’s success. Daniels visited\\nthe hotel room where the crime took place multiple times in the days leading\\nup to the arrest. Daniels provided the cellophane for cash wrapping. After the\\nfateful toilet flush, DEA agents entered the room and found Daniels seated on\\nthe toilet, fully clothed, with the seat cover down. The hotel room contained\\n$286,000 in cash and six ounces of crack cocaine.\\n Viewing the evidence in the light most favorable to the prosecution, a\\nrational trier of fact could easily conclude that Daniels was aiding and\\nabetting. 36 There was sufficient evidence to convict Daniels of Count 3.\\n C\\n Next, Daniels says the district court abused its discretion when it\\ngranted the Government’s motion in limine to stop him from discussing Agent\\nMoran’s alleged misconduct. After all, says Daniels, Moran played a vital role\\nin his arrest, so information regarding his credibility is relevant, and the risk\\nof prejudice to the Government is low. The Government flatly disagrees. We\\nagree with the Government and cannot say the district court abused its\\ndiscretion in granting the motion in limine.\\n We review evidentiary rulings for abuse of discretion. 37 We “will not\\nvacate a conviction based on an error committed by the district court unless\\nthe error was harmful, affecting a substantial right of the complaining party,”\\nmeaning that the “trier of fact would have found the defendant guilty beyond\\na reasonable doubt with the additional evidence inserted.” 38\\n\\n\\n\\n 36 See Cooper, 714 F.3d at 880.\\n 37 United States v. Willett, 751 F.3d 335, 343 (5th Cir. 2014); cf. FED. R. EVID. 103(b)\\n(moving party does not need to renew objection to court ruling on the record to preserve claim\\nof error for appeal).\\n 38 Willett, 751 F.3d at 343 (quoting United States v. Wen Chyu Liu, 716 F.3d 159, 169\\n\\n(5th Cir. 2013)).\\n 13\\n\\f Case: 18-30791 Document: 00515027992 Page: 14 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\n Generally, relevant evidence is admissible. 39 Nevertheless, a court may\\nexclude relevant evidence “if its probative value is substantially outweighed by\\na danger of one or more of the following: unfair prejudice, confusing the issues,\\nmisleading the jury, undue delay, wasting time, or needlessly presenting\\ncumulative evidence.” 40\\n Although Moran was under investigation, the district court didn’t believe\\nthat fact was particularly probative. Nothing in the record indicates that\\nMoran’s investigation concerned anything in this case; rather, it was a “broad\\nprobe into law enforcement misconduct involving members of a DEA Task\\nForce that included DEA Special Agents, officers from the Tangipahoa Parish\\nSheriff’s Office, and officers from the Hammond Police Department.” The\\nGovernment’s case didn’t require Agent Moran’s testimony. Allowing Daniels\\nto present testimony on this point, however, would likely have unfairly\\nprejudiced the Government’s case. Plus, it could easily have confused the jury\\nabout whose guilt was at issue. Given all of this, we can’t say the district court\\nwent so far afield as to abuse its discretion.\\n This too merits mention: Even if the district court had abused its\\ndiscretion, the only error that resulted was harmless. Daniels hasn’t explained\\nwhat information about Moran’s conduct he would have presented to the jury.\\nOn top of that, it’s not clear that any such information would’ve been\\nadmissible. 41 After all, the Government argues, Moran never testified, so\\nFederal Rules of Evidence 608 and 609 would probably render Daniels’s\\nhypothetical evidence inadmissible. Additionally, Federal Rule of Evidence\\n404(a)—prohibiting the admission of character evidence “to prove that on a\\n\\n\\n\\n 39 FED. R. EVID. 402.\\n 40 FED. R. EVID. 403.\\n 41 Even though the Government pointed this out in its briefing, Daniels didn’t respond\\n\\nor elaborate in his reply brief.\\n 14\\n\\f Case: 18-30791 Document: 00515027992 Page: 15 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\nparticular occasion [a] person acted in accordance with the character or trait”—\\nwould likely close the door on Daniels.\\n In sum, the district court didn’t abuse its discretion. And even if it did,\\nany resulting error was harmless.\\n D\\n Now we come to the final issue: Did the district court violate the\\nConfrontation Clause? That is, did Agent Moran have to testify at the\\nsuppression hearing after he asserted his Fifth Amendment right against self-\\nincrimination? Daniels says yes, because Moran played a significant role in the\\ncase, and his testimony was necessary. The Government responds that: (1) the\\ndistrict court couldn’t have made Moran testify after he asserted his Fifth\\nAmendment rights; (2) Moran didn’t even testify, so Daniels didn’t lose his\\nability to cross-examine him; and (3) Daniels said he would’ve asked Moran\\nabout his police report and search-warrant applications—but both of these\\nwere written after the search, so they’re not relevant. Again, we side with the\\nGovernment.\\n We review Confrontation Clause objections de novo, subject to harmless\\nerror review. 42 The Sixth Amendment guarantees a defendant the right “to be\\nconfronted with the witnesses against him.” 43 This means a prosecutor can’t\\nrely on an “out-of-court testimonial statement unless the witness is\\nunavailable and the defendant had a prior opportunity to cross-examine the\\nwitness.” 44 We’ve said before that, although the Sixth Amendment right to\\nconfront is a trial right, it also applies to suppression hearings. 45\\n\\n\\n\\n\\n 42 United States v. Acosta, 475 F.3d 677, 680 (5th Cir. 2007).\\n 43 U.S. Const. amend. VI.\\n 44 Acosta, 475 F.3d at 680.\\n 45 United States v. Stewart, 93 F.3d 189, 192 n.1 (5th Cir. 1996).\\n\\n 15\\n\\f Case: 18-30791 Document: 00515027992 Page: 16 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\n The district court didn’t err: The Sixth Amendment didn’t require Moran\\nto testify. Daniels doesn’t cite any case that says the district court could have\\nand should have compelled Moran to testify. And we can’t find any such case\\neither. 46\\n Daniels argues that Moran was the only one who heard the toilet flush.\\nIf Moran were the only witness who could offer toilet testimony and the\\nGovernment had presented hearsay evidence about it, then the district court\\nmight have violated Moran’s right to confrontation. But the Government didn’t\\neven need to rely on hearsay to establish that the toilet flushed because Agent\\nDel Valle also testified about it. Plus, Daniels had the opportunity to cross-\\nexamine Agent Del Valle.\\n At the very least, Daniels argues, Moran should have been forced to\\ntestify about his police report or his application for a search warrant. But\\n(again) he doesn’t point to any evidence that the Government broached these\\ntopics at the suppression hearing. And (again) the police report and warrant\\napplication both happened after the warrantless entry, so they weren’t relevant\\nto the suppression hearing. So even if the district did misstep, the error was\\nharmless.\\n The Government’s failure to put Moran on as a witness also didn’t violate\\nDaniels’s Sixth Amendment right to compulsory process. The right to\\ncompulsory process is the defendant’s own right to present evidence that\\n“would have been relevant and material to the defense.” 47 Daniels can’t use the\\ncompulsory-process clause to compel the Government to call its own witnesses.\\nAnd even if Daniels were arguing that he wanted to call Moran in his own\\n\\n\\n\\n\\n 46 The Government pointed out that Daniels can point to no authority to support his\\nposition, but Daniels still didn’t cite any case law in his reply brief.\\n 47 Washington v. Texas, 388 U.S. 14, 23 (1967).\\n\\n 16\\n\\f Case: 18-30791 Document: 00515027992 Page: 17 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\ndefense, we have held that “a witness’[s] right against self-incrimination will\\noutweigh a defendant’s right to force that witness to testify.” 48\\n For all these reasons, we find that the district court committed no\\nharmful error by not requiring Moran to testify.\\n IV\\n For the reasons explained above, we AFFIRM Daniels’s convictions.\\n\\n\\n\\n\\n 48 Brown v. Cain, 104 F.3d 744, 749 (5th Cir. 1997).\\n 17\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4415348/\", \"author_raw\": \"DON R. WILLETT, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"KING"},"judge2":{"kind":"string","value":"SMITH"},"judge3":{"kind":"string","value":"WILLETT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4638095/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Lazandy DANIELS, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-30791 Document: 00515027992 Page: 1 Date Filed: 07/10/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n\n No. 18-30791 FILED\n July 10, 2019\n Lyle W. Cayce\nUNITED STATES OF AMERICA, Clerk\n\n Plaintiff–Appellee,\n\nv.\n\nLAZANDY DANIELS,\n\n Defendant–Appellant.\n\n\n Appeal from the United States District Court\n for the Eastern District of Louisiana\n\n\nBefore KING, SMITH, and WILLETT, Circuit Judges.\nDON R. WILLETT, Circuit Judge:\n A jury convicted Lazandy Daniels of distributing crack cocaine, aiding\nand abetting possession with intent to distribute crack cocaine, and conspiring\nto distribute powder and crack cocaine. Daniels asserts three errors: (1) the\ndistrict court wrongly denied his motion to suppress evidence; (2) the district\ncourt wrongly denied him the opportunity to cross-examine an adverse witness\nin violation of the Sixth Amendment; and (3) the trial evidence was insufficient\nto convict him. We reject Daniels’s arguments and AFFIRM his convictions.\n I\n A\n This story starts with Craig James, a cocaine dealer who made his living\ntransporting drugs and money between Houston and New Orleans. The\n\f Case: 18-30791 Document: 00515027992 Page: 2 Date Filed: 07/10/2019\n\n\n\n No. 18-30791\ndefendant, Daniels, met James through his brother, Lindsey Daniels. Lindsey\nwas a middle man, purchasing cocaine from James and then turning around\nand reselling it. As part of their partnership, Lindsey let James use his New\nOrleans salvage yard for transporting drugs. James would buy cars at auction\nin one city, store cocaine in them, and transport the cars to the other city. He\nalso used this strategy to move money.\n The law eventually caught up with Lindsey. But James continued to use\nthe salvage yard. Daniels started working more closely with James, helping\nhim unload the cocaine from the cars and pack them with money before they\nreturned to Houston. Sometimes Daniels was around when James distributed\nthe drugs, and he would help James package the concomitant cash in\ncellophane. Daniels even dabbled in the drug game himself: James testified\n(and others confirmed) that he occasionally gave Daniels small amounts of\ncocaine to sell.\n Besides helping James move cocaine, Daniels acted as James’s\nchauffeur. When James was in New Orleans, Daniels would “[t]ake [James] to\ngo get food, pick [him] up from the airport, take [him] to [his] hotel room, things\nlike that.” James said he asked Daniels to carry out these tasks because\nDaniels “was a friend . . . . It wasn’t just all business. He was a friend. I trusted\nhim.”\nMay 4, 2015 State Arrest\n In May 2015, Daniels was arrested for selling crack cocaine outside his\nhouse. While conducting surveillance as part of a street-level narcotics\ninvestigation, New Orleans police Sergeant Joseph Davis noticed a woman in\na white SUV stop her car, step out, and approach Daniels, who was standing\non the street. She handed something to Daniels, who went into his house.\nDaniels came back out and handed her another object; then she got back into\nher car.\n 2\n\f Case: 18-30791 Document: 00515027992 Page: 3 Date Filed: 07/10/2019\n\n\n\n No. 18-30791\n Suspicious, Davis followed the SUV and radioed his fellow officers to pull\nit over. While attempting to do so, Officer Jeraire Bridges saw the woman drop\na small item from her window. Once the woman had pulled over, Bridges\nretrieved the dropped item. It appeared (and was later confirmed) to be a\nplastic bag of crack cocaine. The officers arrested the woman.\n Later that day, New Orleans police officers arrested Daniels. The officers\nfound him sitting in a pickup truck outside his house. The officers searched the\ntruck and the house, finding $2,325 in cash in the vehicle, a video recording\nsystem monitoring the residence, and what turned out to be cocaine residue in\na mug in the house. Daniels was charged in Orleans Parish Criminal District\nCourt with possession with the intent to distribute cocaine.\nDecember 2, 2015 Drug Enforcement Agency Arrest\n These December incidents were initially unrelated to Daniels’s May\narrest—they arose out of the DEA’s separate surveillance spearheaded by\nAgents Justin Moran and Christopher Johnson. Thanks to a confidential tip,\nthe DEA learned that James was coming to New Orleans in early December to\ncollect some money. Upon his arrival, James took a taxi to the Super 8 Motel\non Chef Menteur Highway and rented a room.\n James testified that on December 1, 2015, a friend paid him an evening\nvisit, bringing James a duffle bag filled with various drug paraphernalia,\nincluding a scale and cowboy boots stuffed with a cutting agent. Daniels came\nby that evening and the next morning to “check on” James. Around noon,\nDaniels left to go to his brother’s salvage yard. He returned around 12:34 p.m.\nBefore entering the motel, he retrieved from his trunk a long, thin item that\nhe kept under his jacket. The concealed item was a roll of cellophane for\nwrapping cash, but the surveilling DEA agents thought it might be a weapon.\n Around 2:00 p.m., James’s brother-in-law, Joppa Jackson (whom the\nDEA agents recognized from previous narcotics investigations), came to the\n 3\n\f Case: 18-30791 Document: 00515027992 Page: 4 Date Filed: 07/10/2019\n\n\n\n No. 18-30791\nmotel in his pickup truck. James left Daniels in the motel room and got into\nthe pickup, which never left the parking lot. After a bit, James got out of the\ntruck with a bag of money, repayment for cocaine James had given Joppa.\n Eight minutes later, Daniels and James left the motel to dine at a\nrestaurant for a couple hours. The pair returned to the motel room in the late\nafternoon. At around 6:40 p.m., Leon Jackson, James’s other brother-in-law,\narrived. When Leon exited the motel, DEA Agent Demond Lockhart\napproached him to perform an investigatory stop. Agent Lockhart searched\nLeon’s bag and vehicle and hit the jackpot: several thousand dollars.\nThe Knock-and-Talk\n After interviewing Leon Jackson, the DEA agents decided to do a “knock-\nand-talk,” (when officers knock on a door, contact the resident, and ask to\nsearch the residence). As he approached the room, DEA Agent Michael Greaves\ncould smell marijuana. Agent Greaves knocked on the door, and James asked\nwho was there. Greaves initially pretended that he had hit James’s car. James\ndid not open the door. Greaves then announced that he was with the police and\nasked James to open the door so they could talk.\n After knocking for two minutes, Greaves heard Moran, who was standing\nto his left by the motel-room’s window, say that he could hear the toilet\nflushing. Greaves, inferring that James was destroying evidence, decided to\nkick down the door. DEA Agent Kevin Treigle searched the bathroom, finding\nDaniels seated on the toilet, fully clothed, with the seat cover down.\n In the room, the officers found a long roll of cellophane, a plastic bag\nfilled with cutting agent, a black duffle bag with lots of cash, much of which\nwas wrapped in cellophane, a digital scale, and crack cocaine. They seized\napproximately $286,000 and approximately six ounces of crack cocaine.\n\n\n\n\n 4\n\f Case: 18-30791 Document: 00515027992 Page: 5 Date Filed: 07/10/2019\n\n\n\n No. 18-30791\n B\n Daniels was charged with one count of conspiracy to distribute 5\nkilograms or more of powder cocaine and 28 grams or more of crack cocaine;\none count of distributing crack cocaine on May 4, 2015; and one count of\npossessing with intent to distribute 28 grams or more of crack cocaine on\nDecember 2, 2015.\n Daniels moved to suppress the motel-search evidence, arguing that no\nexigency supported the warrantless search. The district court conducted a\nsuppression hearing. Several DEA agents testified regarding the knock-and-\ntalk and resulting search. Pertinently, DEA Agent Francisco Del Valle testified\nthat he had heard the toilet flush while Agent Greaves was knocking on the\nmotel-room door. Daniels had the opportunity to cross-examine each of the\nGovernment’s witnesses.\n Daniels also attempted to subpoena Agent Moran to have him testify at\nthe hearing. At the time, Moran was under investigation for misconduct, and\nhe asserted his Fifth Amendment rights. Although the court did not require\nMoran to testify, it allowed Daniels’s counsel to explain what he wanted to ask\nMoran.\n The district court denied Daniels’s motion to suppress, holding that he\ndidn’t have standing to challenge the motel-room search because there was no\nevidence indicating he intended to stay overnight. And even if Daniels had\nstanding, the Fourth Amendment’s exigency exception permitted the search.\nThe flushing sounds gave the officers “probable cause to believe that there was\nevidence of criminal activity in the room, and that the evidence was being\ndestroyed.”\n In preparation for trial, the Government filed a motion in limine to\npreclude Daniels from attacking the credibility of its witnesses based on Agent\nMoran’s alleged misconduct. The Government asked the court to prohibit\n 5\n\f Case: 18-30791 Document: 00515027992 Page: 6 Date Filed: 07/10/2019\n\n\n\n No. 18-30791\nDaniels from “[i]nflaming the [j]ury” by referencing the investigation during\ntrial, arguing that it was irrelevant. The district court granted the motion,\nfinding Moran’s alleged misconduct “unrelated to the matter at hand.”\n The case went before a jury. The Government called twelve witnesses,\namong them Agents Greaves and Treigle (the New Orleans police officers\ninvolved in the May 4 arrest) and Daniels’s alleged co-conspirators, Joppa\nJackson and James. At the close of the Government’s case in chief, Daniels\nmoved for judgment of acquittal, which the court denied. Daniels submitted\nseveral exhibits to the jury, but he did not testify in his own defense or call any\nwitnesses to testify. The jury found Daniels guilty of all three counts. The court\nsentenced Daniels to 240 months’ imprisonment as to all three counts, to be\nserved concurrently, and ten years of supervised release. Daniels appealed. 1\n II\n The district court had jurisdiction under 18 U.S.C. § 3231. And we have\nappellate jurisdiction under 28 U.S.C. § 1291.\n III\n A\n First, Daniels challenges the district court’s denial of his motion to\nsuppress the evidence from the motel-room search. “When a district court\ndenies a motion to suppress evidence, we review the factual findings for clear\nerror and legal conclusions . . . de novo.” 2 And we may affirm the decision below\n\n\n\n\n 1 During the sentencing hearing, Daniels expressed his frustration with his lawyer.\nAt the close of the hearing, Daniels’s counsel made an oral motion to withdraw as counsel,\nwhich the court granted. Daniels then petitioned to vacate his sentence under 28 U.S.C. §\n2255, arguing his counsel failed to follow his instructions to file an appeal. After an\nevidentiary hearing, the court ordered that Daniels be allowed to file an out-of-time appeal\nand dismissed his § 2255 motion as premature.\n 2 United States v. Beene, 818 F.3d 157, 161 (5th Cir. 2016).\n\n 6\n\f Case: 18-30791 Document: 00515027992 Page: 7 Date Filed: 07/10/2019\n\n\n\n No. 18-30791\n“on any basis established by the record.” 3 The burden is on Daniels to prove,\n“by a preponderance of the evidence, that the evidence in question was\nobtained in violation of his Fourth Amendment rights.” 4\n “The exclusionary rule allows a defendant to suppress the evidentiary\nfruits of a violation of his Fourth Amendment rights” to be free of unreasonable\nsearches and seizures. 5 Although “searches and seizures inside a home without\na warrant are presumptively unreasonable,” 6 an officer may search a person’s\nproperty if “ ‘the exigencies of the situation’ make the needs of law enforcement\nso compelling that [a] warrantless search is objectively reasonable.” 7 A valid\nexigency exists when an officer believes that evidence is being destroyed—\nalthough an officer “may not rely on the need to prevent destruction of evidence\nwhen that exigency was ‘created’ or ‘manufactured’ by the conduct of the\npolice.” 8 In other words, an officer may not “engag[e] or threaten[] to engage in\nconduct that violates the Fourth Amendment” in order to create an exigency\njustifying warrantless entry. 9\n Assuming without deciding the issue of standing, we will first address\nwhether there was an exigency justifying the search. 10 To do so, we use a non-\nexhaustive five-factor test:\n (1) the degree of urgency involved and the amount of time\n necessary to obtain a warrant; (2) the reasonable belief that\n\n\n 3 United States v. Iraheta, 764 F.3d 455, 460 (5th Cir. 2014) (quoting United States v.\nPack, 612 F.3d 341, 347 (5th Cir. 2010)).\n 4 Id. (quoting United States v. Kelley, 981 F.2d 1464, 1467 (5th Cir. 1993)).\n 5 Pack, 612 F.3d at 347.\n 6 Kentucky v. King, 563 U.S. 452, 459 (2011) (quoting Brigham City v. Stuart, 547 U.S.\n\n398, 403 (2006)).\n 7 Id. at 460 (alteration in original) (quoting Mincey v. Arizona, 437 U.S. 385, 394\n\n(1978)).\n 8 Id. at 461.\n 9 Id. at 462.\n 10 See United States v. Flores, 640 F.3d 638, 642 (5th Cir. 2011) (“[E]ven assuming [the\n\nDefendant] has standing to challenge the search, the good-faith exception to the exclusionary\nrule applies under these facts.”).\n 7\n\f Case: 18-30791 Document: 00515027992 Page: 8 Date Filed: 07/10/2019\n\n\n\n No. 18-30791\n contraband is about to be removed; (3) the possibility of danger to\n the police officers guarding the site of contraband while a search\n warrant is sought; (4) the information indicating that the\n possessors of the contraband are aware that the police are on their\n trail; and (5) the ready destructibility of the contraband and the\n knowledge that efforts to dispose of it and to escape are\n characteristics in which those trafficking in contraband generally\n engage. 11\n\n Daniels argues that a “single toilet flush” was not enough to justify entry.\nIf a solitary flush were the only evidence of exigency in the record, he might be\nright. But the officers relied on more than just the flush. In fact, they were\nflush with exigency evidence. After he knocked, Agent Greaves could hear\n“running throughout the room, running back and forth like from the right side\nwhere the door was back to the left side by the window.” He says there were\ntimes when James’s “voice was real close to the door” and when he “could tell\nhe was much further away from the door,” indicating that James was running\nback and forth. 12 Agent Greaves had told James he was a police officer, so he\nwas “aware that the police [were] on [his] trail.” 13 And Agent Webber testified\nthat it is “not uncommon for drug dealers to flush narcotics down the toilet.”\nCombined with the toilet-flushing sounds, this all reasonably suggests that the\nroom’s occupants might have been attempting to destroy evidence. The Aguirre\nfactors therefore suggest that exigent circumstances existed justifying the\nwarrantless search. So, the district court did not err in finding there was an\nexigency to justify the warrantless search. The officers had a full house of\nevidence, and a full house beats a flush. 14\n\n\n\n 11 United States v. Aguirre, 664 F.3d 606, 611 (5th Cir. 2011) (quoting United States\nv. Mata, 517 F.3d 279, 287 (5th Cir. 2008)).\n 12 Id.\n 13 Aguirre, 664 F.3d at 611.\n 14 Poker Rules—How to Play Poker Games, POKERNEWS.COM,\nhttps://www.pokernews.com/poker-rules/ (last visited July 8, 2019).\n 8\n\f Case: 18-30791 Document: 00515027992 Page: 9 Date Filed: 07/10/2019\n\n\n\n No. 18-30791\n Now that we know an exigency existed, we must ask whether the officers\ncreated the exigency. 15 Daniels says the officers’ aggressive conduct made him\nbelieve that he was trapped, in violation of the Fourth Amendment, thereby\ncreating the exigency. But the officers acted within the bounds of our caselaw.\nIn King, police “banged on the door as loud as [they] could,” but that did not\ncreate the exigency. 16 Even though the defendant argued that the officers\n“demanded” entry, he couldn’t back that up with any evidence in the record. 17\nLikewise, Daniels does not point to any evidence in the record that the agents\nactually threatened his Fourth Amendment rights. While the officers here\nknocked vigorously, the knocking was relatively brief—around two\nminutes 18—and the officers did not attempt to force entry prior to hearing the\ntoilet flush. 19 The officers did not create the exigency.\n Daniels fails to meet his burden of showing a Fourth Amendment\nviolation. So the district court did not err in denying his motion to suppress. 20\n B\n When a defendant makes a general sufficiency-of-the-evidence\nchallenge, we review the sufficiency of the evidence supporting a conviction de\nnovo. 21 But where the defendant asserts “specific grounds for a specific element\nof a specific count” in his motion for judgment of acquittal under Federal Rule\nof Criminal Procedure 29, the defendant fails to preserve any other grounds; 22\n\n\n 15 See King, 563 U.S. at 461.\n 16 See id.\n 17 King, 563 U.S. at 471 (alteration in original).\n 18 Cf., Westfall v. Luna, 903 F.3d 534, 545 (describing officers’ prolonged attempt to\n\nknock on door).\n 19 See United States v. Hernandez, 392 F. App’x 350, 351–53 (5th Cir. 2010)\n\n(unpublished) (finding a Fourth Amendment violation where the officers attempted to force\nentry by trying to open a locked door and breaking the pane of a screen door with a baton).\n 20 Iraheta, 764 F.3d at 460.\n 21 United States v. Brown, 727 F.3d 329, 335 (5th Cir. 2013).\n 22 Id. (quoting United States v. Herrera, 313 F.3d 882, 884 (5th Cir. 2002) (en banc)\n\n(per curiam)).\n 9\n\f Case: 18-30791 Document: 00515027992 Page: 10 Date Filed: 07/10/2019\n\n\n\n No. 18-30791\naccordingly, we must ask whether there has been a “manifest miscarriage of\njustice.” 23\n The parties disagree over which standard applies. At the close of the\nGovernment’s case in chief, Daniels’s counsel stated generally that he was\nmaking “an oral motion as to a directed verdict as to all counts on the\nsuperseding indictment as they refer to Mr. Lazandy Daniels.” 24 And although\nhe made specific points to support the motion, they were not specific to the\nelements of the crime. We thus review de novo. And “the relevant question is\nwhether, after viewing the evidence in the light most favorable to the\nprosecution, any rational trier of fact could have found the essential elements\nof the crime beyond a reasonable doubt.” 25\n Count 1 convicted Daniels of conspiring to distribute 5 kilograms or more\nof powder cocaine and 28 grams or more of crack cocaine. Per Supreme Court\ndirective, “[a] conviction for a drug conspiracy requires proof of ‘(1) an\nagreement between two or more persons to violate the narcotics laws, (2) the\ndefendant’s knowledge of the agreement, and (3) the defendant’s voluntary\nparticipation in the conspiracy.’ ” 26 Here, the alleged “violat[ion of] the\nnarcotics laws” is distributing cocaine, so, we must ask whether there was an\nagreement to “(1) knowingly (2) distribute[ ] (3) cocaine.” 27\n Having reviewed the record, we hold that the evidence was more than\nsufficient for a rational trier of fact to convict Daniels. Although Daniels seeks\n\n\n\n 23 Id. (quoting United States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007)).\n 24 See United States v. McCall, 553 F.3d 821, 830 (5th Cir. 2008) (“Rule 29 motions\nneed not be specific.”).\n 25 United States v. Cooper, 714 F.3d 873, 880 (5th Cir. 2013) (quoting United States v.\n\nUvalle–Patricio, 478 F.3d 699, 701 (5th Cir. 2007)).\n 26 United States v. Scott, 892 F.3d 791, 797 (5th Cir. 2018) (quoting United States v.\n\nBooker, 334 F.3d 406, 409 (5th Cir. 2003)).\n 27 United States v. Gordon, 876 F.2d 1121, 1125 (5th Cir. 1989) (citing 21 U.S.C §\n\n841(a)(1)).\n 10\n\f Case: 18-30791 Document: 00515027992 Page: 11 Date Filed: 07/10/2019\n\n\n\n No. 18-30791\nto characterize himself as James’s unwitting, overly helpful friend, the trial\nevidence was sufficient to prove that Daniels agreed to distribute both powder\nand crack cocaine; that he knew about the agreement; and that he participated\nvoluntarily. 28 James and Joppa Jackson testified that Daniels helped them\ntransport cocaine from Houston to New Orleans. 29 Sometimes Daniels would\nprovide drugs to Joppa Jackson even when James wasn’t around. James also\ntestified that Daniels helped him wrap money in cellophane and load the cars\nwith money “[a]ll the time.” Both James and Joppa Jackson testified that they\nfronted crack cocaine to Daniels so that Daniels could sell it.\n A rational trier of fact could easily find that Daniels was conspiring to\ndistribute 5 kilograms or more of powder cocaine and 28 grams or more of crack\ncocaine beyond a reasonable doubt. There was sufficient evidence to convict\nDaniels of Count 1.\n Count 2 accused Daniels of knowingly and intentionally distributing\ncrack cocaine on May 4, 2015 (the white SUV episode). As with Count 1, there’s\nample evidence to show that Daniels “(1) knowingly (2) distributed (3) [crack]\ncocaine.” 30\n The jury saw video footage of the transaction. Officers apprehended the\nwoman shortly after and saw her throw a piece of crack cocaine out her car\nwindow. And when officers searched Daniels’s house later, they found cocaine\nresidue and $2,000 in cash. A rational trier of fact could easily find that Daniels\nknowingly and intentionally distributed crack cocaine. There was no error.\n\n\n\n\n 28 See Scott, 892 F.3d at 797.\n 29 Joppa testified that he would buy “between 10 and 20” kilograms of cocaine from\nJames at a time, which he would pick up from Daniels at the salvage yard. James also\ntestified that Daniels would help him unload anywhere from 4 to 12 kilograms of cocaine\nfrom the cars at a time.\n 30 Gordon, 876 F.2d at 1125.\n\n 11\n\f Case: 18-30791 Document: 00515027992 Page: 12 Date Filed: 07/10/2019\n\n\n\n No. 18-30791\n Count 3 accused Daniels of aiding and abetting the knowing and\nintentional possession of 28 grams or more of crack cocaine with intent to\ndistribute on December 2, 2015 (the motel-room episode). 31 As we reiterated in\nUnited States v. Cain, “[t]he essential elements of possession with the intent\nto distribute controlled substances . . . are 1) knowledge, 2) possession, and 3)\nintent to distribute the controlled substances.” 32 A conviction for aiding and\nabetting requires proof that “the substantive offense occurred and that the\ndefendant (1) associated with the criminal venture; (2) purposefully\nparticipated in the crime; and (3) sought by his actions for it to succeed.” 33 And\nas Scott clarified, a defendant who aids and abets the possession with intent to\ndistribute a controlled substance “need not have actual or constructive\npossession of the drugs.” 34\n Daniels’s arguments focus on possession of the drugs. He says he didn’t\nhave any drugs on him when he was found in the motel bathroom and that his\nfriend was the only person who actually brought crack cocaine to the motel\nroom. But Count 3 was for aiding and abetting, so actual or constructive\npossession is irrelevant. 35\n The record clearly reflects Daniels’s association with the criminal\nventure. As already mentioned, Daniels has a long history of assisting James\nwith his drug smuggling business. He also closely associated himself with the\ncriminal venture on the day in question by coming and going from the motel\nroom and by dining with the other participants.\n\n\n\n 31 We think it important to note that while the First Superseding Indictment charged\nDaniels with intentional possession, his ultimate conviction was for aiding and abetting.\n 32 440 F.3d 672, 675 (5th Cir. 2006) (quoting United States v. Delgado, 256 F.3d 264,\n\n274 (5th Cir. 2001)).\n 33 Scott, 892 F.3d at 798 (quoting United States v. Pando Franco, 503 F.3d 389, 394\n\n(5th Cir. 2007)).\n 34 Id. at 799 (quoting United States v. Williams, 985 F.2d 749, 753 (5th Cir. 1993)).\n 35 See Scott, 892 F.3d at 799\n\n 12\n\f Case: 18-30791 Document: 00515027992 Page: 13 Date Filed: 07/10/2019\n\n\n\n No. 18-30791\n The record is replete with evidence relevant to elements two and three:\n(2) purposeful participation and (3) seeking the crime’s success. Daniels visited\nthe hotel room where the crime took place multiple times in the days leading\nup to the arrest. Daniels provided the cellophane for cash wrapping. After the\nfateful toilet flush, DEA agents entered the room and found Daniels seated on\nthe toilet, fully clothed, with the seat cover down. The hotel room contained\n$286,000 in cash and six ounces of crack cocaine.\n Viewing the evidence in the light most favorable to the prosecution, a\nrational trier of fact could easily conclude that Daniels was aiding and\nabetting. 36 There was sufficient evidence to convict Daniels of Count 3.\n C\n Next, Daniels says the district court abused its discretion when it\ngranted the Government’s motion in limine to stop him from discussing Agent\nMoran’s alleged misconduct. After all, says Daniels, Moran played a vital role\nin his arrest, so information regarding his credibility is relevant, and the risk\nof prejudice to the Government is low. The Government flatly disagrees. We\nagree with the Government and cannot say the district court abused its\ndiscretion in granting the motion in limine.\n We review evidentiary rulings for abuse of discretion. 37 We “will not\nvacate a conviction based on an error committed by the district court unless\nthe error was harmful, affecting a substantial right of the complaining party,”\nmeaning that the “trier of fact would have found the defendant guilty beyond\na reasonable doubt with the additional evidence inserted.” 38\n\n\n\n 36 See Cooper, 714 F.3d at 880.\n 37 United States v. Willett, 751 F.3d 335, 343 (5th Cir. 2014); cf. FED. R. EVID. 103(b)\n(moving party does not need to renew objection to court ruling on the record to preserve claim\nof error for appeal).\n 38 Willett, 751 F.3d at 343 (quoting United States v. Wen Chyu Liu, 716 F.3d 159, 169\n\n(5th Cir. 2013)).\n 13\n\f Case: 18-30791 Document: 00515027992 Page: 14 Date Filed: 07/10/2019\n\n\n\n No. 18-30791\n Generally, relevant evidence is admissible. 39 Nevertheless, a court may\nexclude relevant evidence “if its probative value is substantially outweighed by\na danger of one or more of the following: unfair prejudice, confusing the issues,\nmisleading the jury, undue delay, wasting time, or needlessly presenting\ncumulative evidence.” 40\n Although Moran was under investigation, the district court didn’t believe\nthat fact was particularly probative. Nothing in the record indicates that\nMoran’s investigation concerned anything in this case; rather, it was a “broad\nprobe into law enforcement misconduct involving members of a DEA Task\nForce that included DEA Special Agents, officers from the Tangipahoa Parish\nSheriff’s Office, and officers from the Hammond Police Department.” The\nGovernment’s case didn’t require Agent Moran’s testimony. Allowing Daniels\nto present testimony on this point, however, would likely have unfairly\nprejudiced the Government’s case. Plus, it could easily have confused the jury\nabout whose guilt was at issue. Given all of this, we can’t say the district court\nwent so far afield as to abuse its discretion.\n This too merits mention: Even if the district court had abused its\ndiscretion, the only error that resulted was harmless. Daniels hasn’t explained\nwhat information about Moran’s conduct he would have presented to the jury.\nOn top of that, it’s not clear that any such information would’ve been\nadmissible. 41 After all, the Government argues, Moran never testified, so\nFederal Rules of Evidence 608 and 609 would probably render Daniels’s\nhypothetical evidence inadmissible. Additionally, Federal Rule of Evidence\n404(a)—prohibiting the admission of character evidence “to prove that on a\n\n\n\n 39 FED. R. EVID. 402.\n 40 FED. R. EVID. 403.\n 41 Even though the Government pointed this out in its briefing, Daniels didn’t respond\n\nor elaborate in his reply brief.\n 14\n\f Case: 18-30791 Document: 00515027992 Page: 15 Date Filed: 07/10/2019\n\n\n\n No. 18-30791\nparticular occasion [a] person acted in accordance with the character or trait”—\nwould likely close the door on Daniels.\n In sum, the district court didn’t abuse its discretion. And even if it did,\nany resulting error was harmless.\n D\n Now we come to the final issue: Did the district court violate the\nConfrontation Clause? That is, did Agent Moran have to testify at the\nsuppression hearing after he asserted his Fifth Amendment right against self-\nincrimination? Daniels says yes, because Moran played a significant role in the\ncase, and his testimony was necessary. The Government responds that: (1) the\ndistrict court couldn’t have made Moran testify after he asserted his Fifth\nAmendment rights; (2) Moran didn’t even testify, so Daniels didn’t lose his\nability to cross-examine him; and (3) Daniels said he would’ve asked Moran\nabout his police report and search-warrant applications—but both of these\nwere written after the search, so they’re not relevant. Again, we side with the\nGovernment.\n We review Confrontation Clause objections de novo, subject to harmless\nerror review. 42 The Sixth Amendment guarantees a defendant the right “to be\nconfronted with the witnesses against him.” 43 This means a prosecutor can’t\nrely on an “out-of-court testimonial statement unless the witness is\nunavailable and the defendant had a prior opportunity to cross-examine the\nwitness.” 44 We’ve said before that, although the Sixth Amendment right to\nconfront is a trial right, it also applies to suppression hearings. 45\n\n\n\n\n 42 United States v. Acosta, 475 F.3d 677, 680 (5th Cir. 2007).\n 43 U.S. Const. amend. VI.\n 44 Acosta, 475 F.3d at 680.\n 45 United States v. Stewart, 93 F.3d 189, 192 n.1 (5th Cir. 1996).\n\n 15\n\f Case: 18-30791 Document: 00515027992 Page: 16 Date Filed: 07/10/2019\n\n\n\n No. 18-30791\n The district court didn’t err: The Sixth Amendment didn’t require Moran\nto testify. Daniels doesn’t cite any case that says the district court could have\nand should have compelled Moran to testify. And we can’t find any such case\neither. 46\n Daniels argues that Moran was the only one who heard the toilet flush.\nIf Moran were the only witness who could offer toilet testimony and the\nGovernment had presented hearsay evidence about it, then the district court\nmight have violated Moran’s right to confrontation. But the Government didn’t\neven need to rely on hearsay to establish that the toilet flushed because Agent\nDel Valle also testified about it. Plus, Daniels had the opportunity to cross-\nexamine Agent Del Valle.\n At the very least, Daniels argues, Moran should have been forced to\ntestify about his police report or his application for a search warrant. But\n(again) he doesn’t point to any evidence that the Government broached these\ntopics at the suppression hearing. And (again) the police report and warrant\napplication both happened after the warrantless entry, so they weren’t relevant\nto the suppression hearing. So even if the district did misstep, the error was\nharmless.\n The Government’s failure to put Moran on as a witness also didn’t violate\nDaniels’s Sixth Amendment right to compulsory process. The right to\ncompulsory process is the defendant’s own right to present evidence that\n“would have been relevant and material to the defense.” 47 Daniels can’t use the\ncompulsory-process clause to compel the Government to call its own witnesses.\nAnd even if Daniels were arguing that he wanted to call Moran in his own\n\n\n\n\n 46 The Government pointed out that Daniels can point to no authority to support his\nposition, but Daniels still didn’t cite any case law in his reply brief.\n 47 Washington v. Texas, 388 U.S. 14, 23 (1967).\n\n 16\n\f Case: 18-30791 Document: 00515027992 Page: 17 Date Filed: 07/10/2019\n\n\n\n No. 18-30791\ndefense, we have held that “a witness’[s] right against self-incrimination will\noutweigh a defendant’s right to force that witness to testify.” 48\n For all these reasons, we find that the district court committed no\nharmful error by not requiring Moran to testify.\n IV\n For the reasons explained above, we AFFIRM Daniels’s convictions.\n\n\n\n\n 48 Brown v. Cain, 104 F.3d 744, 749 (5th Cir. 1997).\n 17\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Lazandy DANIELS, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-10\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-30791 Document: 00515027992 Page: 1 Date Filed: 07/10/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 18-30791 FILED\\n July 10, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n Plaintiff–Appellee,\\n\\nv.\\n\\nLAZANDY DANIELS,\\n\\n Defendant–Appellant.\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Louisiana\\n\\n\\nBefore KING, SMITH, and WILLETT, Circuit Judges.\\nDON R. WILLETT, Circuit Judge:\\n A jury convicted Lazandy Daniels of distributing crack cocaine, aiding\\nand abetting possession with intent to distribute crack cocaine, and conspiring\\nto distribute powder and crack cocaine. Daniels asserts three errors: (1) the\\ndistrict court wrongly denied his motion to suppress evidence; (2) the district\\ncourt wrongly denied him the opportunity to cross-examine an adverse witness\\nin violation of the Sixth Amendment; and (3) the trial evidence was insufficient\\nto convict him. We reject Daniels’s arguments and AFFIRM his convictions.\\n I\\n A\\n This story starts with Craig James, a cocaine dealer who made his living\\ntransporting drugs and money between Houston and New Orleans. The\\n\\f Case: 18-30791 Document: 00515027992 Page: 2 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\ndefendant, Daniels, met James through his brother, Lindsey Daniels. Lindsey\\nwas a middle man, purchasing cocaine from James and then turning around\\nand reselling it. As part of their partnership, Lindsey let James use his New\\nOrleans salvage yard for transporting drugs. James would buy cars at auction\\nin one city, store cocaine in them, and transport the cars to the other city. He\\nalso used this strategy to move money.\\n The law eventually caught up with Lindsey. But James continued to use\\nthe salvage yard. Daniels started working more closely with James, helping\\nhim unload the cocaine from the cars and pack them with money before they\\nreturned to Houston. Sometimes Daniels was around when James distributed\\nthe drugs, and he would help James package the concomitant cash in\\ncellophane. Daniels even dabbled in the drug game himself: James testified\\n(and others confirmed) that he occasionally gave Daniels small amounts of\\ncocaine to sell.\\n Besides helping James move cocaine, Daniels acted as James’s\\nchauffeur. When James was in New Orleans, Daniels would “[t]ake [James] to\\ngo get food, pick [him] up from the airport, take [him] to [his] hotel room, things\\nlike that.” James said he asked Daniels to carry out these tasks because\\nDaniels “was a friend . . . . It wasn’t just all business. He was a friend. I trusted\\nhim.”\\nMay 4, 2015 State Arrest\\n In May 2015, Daniels was arrested for selling crack cocaine outside his\\nhouse. While conducting surveillance as part of a street-level narcotics\\ninvestigation, New Orleans police Sergeant Joseph Davis noticed a woman in\\na white SUV stop her car, step out, and approach Daniels, who was standing\\non the street. She handed something to Daniels, who went into his house.\\nDaniels came back out and handed her another object; then she got back into\\nher car.\\n 2\\n\\f Case: 18-30791 Document: 00515027992 Page: 3 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\n Suspicious, Davis followed the SUV and radioed his fellow officers to pull\\nit over. While attempting to do so, Officer Jeraire Bridges saw the woman drop\\na small item from her window. Once the woman had pulled over, Bridges\\nretrieved the dropped item. It appeared (and was later confirmed) to be a\\nplastic bag of crack cocaine. The officers arrested the woman.\\n Later that day, New Orleans police officers arrested Daniels. The officers\\nfound him sitting in a pickup truck outside his house. The officers searched the\\ntruck and the house, finding $2,325 in cash in the vehicle, a video recording\\nsystem monitoring the residence, and what turned out to be cocaine residue in\\na mug in the house. Daniels was charged in Orleans Parish Criminal District\\nCourt with possession with the intent to distribute cocaine.\\nDecember 2, 2015 Drug Enforcement Agency Arrest\\n These December incidents were initially unrelated to Daniels’s May\\narrest—they arose out of the DEA’s separate surveillance spearheaded by\\nAgents Justin Moran and Christopher Johnson. Thanks to a confidential tip,\\nthe DEA learned that James was coming to New Orleans in early December to\\ncollect some money. Upon his arrival, James took a taxi to the Super 8 Motel\\non Chef Menteur Highway and rented a room.\\n James testified that on December 1, 2015, a friend paid him an evening\\nvisit, bringing James a duffle bag filled with various drug paraphernalia,\\nincluding a scale and cowboy boots stuffed with a cutting agent. Daniels came\\nby that evening and the next morning to “check on” James. Around noon,\\nDaniels left to go to his brother’s salvage yard. He returned around 12:34 p.m.\\nBefore entering the motel, he retrieved from his trunk a long, thin item that\\nhe kept under his jacket. The concealed item was a roll of cellophane for\\nwrapping cash, but the surveilling DEA agents thought it might be a weapon.\\n Around 2:00 p.m., James’s brother-in-law, Joppa Jackson (whom the\\nDEA agents recognized from previous narcotics investigations), came to the\\n 3\\n\\f Case: 18-30791 Document: 00515027992 Page: 4 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\nmotel in his pickup truck. James left Daniels in the motel room and got into\\nthe pickup, which never left the parking lot. After a bit, James got out of the\\ntruck with a bag of money, repayment for cocaine James had given Joppa.\\n Eight minutes later, Daniels and James left the motel to dine at a\\nrestaurant for a couple hours. The pair returned to the motel room in the late\\nafternoon. At around 6:40 p.m., Leon Jackson, James’s other brother-in-law,\\narrived. When Leon exited the motel, DEA Agent Demond Lockhart\\napproached him to perform an investigatory stop. Agent Lockhart searched\\nLeon’s bag and vehicle and hit the jackpot: several thousand dollars.\\nThe Knock-and-Talk\\n After interviewing Leon Jackson, the DEA agents decided to do a “knock-\\nand-talk,” (when officers knock on a door, contact the resident, and ask to\\nsearch the residence). As he approached the room, DEA Agent Michael Greaves\\ncould smell marijuana. Agent Greaves knocked on the door, and James asked\\nwho was there. Greaves initially pretended that he had hit James’s car. James\\ndid not open the door. Greaves then announced that he was with the police and\\nasked James to open the door so they could talk.\\n After knocking for two minutes, Greaves heard Moran, who was standing\\nto his left by the motel-room’s window, say that he could hear the toilet\\nflushing. Greaves, inferring that James was destroying evidence, decided to\\nkick down the door. DEA Agent Kevin Treigle searched the bathroom, finding\\nDaniels seated on the toilet, fully clothed, with the seat cover down.\\n In the room, the officers found a long roll of cellophane, a plastic bag\\nfilled with cutting agent, a black duffle bag with lots of cash, much of which\\nwas wrapped in cellophane, a digital scale, and crack cocaine. They seized\\napproximately $286,000 and approximately six ounces of crack cocaine.\\n\\n\\n\\n\\n 4\\n\\f Case: 18-30791 Document: 00515027992 Page: 5 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\n B\\n Daniels was charged with one count of conspiracy to distribute 5\\nkilograms or more of powder cocaine and 28 grams or more of crack cocaine;\\none count of distributing crack cocaine on May 4, 2015; and one count of\\npossessing with intent to distribute 28 grams or more of crack cocaine on\\nDecember 2, 2015.\\n Daniels moved to suppress the motel-search evidence, arguing that no\\nexigency supported the warrantless search. The district court conducted a\\nsuppression hearing. Several DEA agents testified regarding the knock-and-\\ntalk and resulting search. Pertinently, DEA Agent Francisco Del Valle testified\\nthat he had heard the toilet flush while Agent Greaves was knocking on the\\nmotel-room door. Daniels had the opportunity to cross-examine each of the\\nGovernment’s witnesses.\\n Daniels also attempted to subpoena Agent Moran to have him testify at\\nthe hearing. At the time, Moran was under investigation for misconduct, and\\nhe asserted his Fifth Amendment rights. Although the court did not require\\nMoran to testify, it allowed Daniels’s counsel to explain what he wanted to ask\\nMoran.\\n The district court denied Daniels’s motion to suppress, holding that he\\ndidn’t have standing to challenge the motel-room search because there was no\\nevidence indicating he intended to stay overnight. And even if Daniels had\\nstanding, the Fourth Amendment’s exigency exception permitted the search.\\nThe flushing sounds gave the officers “probable cause to believe that there was\\nevidence of criminal activity in the room, and that the evidence was being\\ndestroyed.”\\n In preparation for trial, the Government filed a motion in limine to\\npreclude Daniels from attacking the credibility of its witnesses based on Agent\\nMoran’s alleged misconduct. The Government asked the court to prohibit\\n 5\\n\\f Case: 18-30791 Document: 00515027992 Page: 6 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\nDaniels from “[i]nflaming the [j]ury” by referencing the investigation during\\ntrial, arguing that it was irrelevant. The district court granted the motion,\\nfinding Moran’s alleged misconduct “unrelated to the matter at hand.”\\n The case went before a jury. The Government called twelve witnesses,\\namong them Agents Greaves and Treigle (the New Orleans police officers\\ninvolved in the May 4 arrest) and Daniels’s alleged co-conspirators, Joppa\\nJackson and James. At the close of the Government’s case in chief, Daniels\\nmoved for judgment of acquittal, which the court denied. Daniels submitted\\nseveral exhibits to the jury, but he did not testify in his own defense or call any\\nwitnesses to testify. The jury found Daniels guilty of all three counts. The court\\nsentenced Daniels to 240 months’ imprisonment as to all three counts, to be\\nserved concurrently, and ten years of supervised release. Daniels appealed. 1\\n II\\n The district court had jurisdiction under 18 U.S.C. § 3231. And we have\\nappellate jurisdiction under 28 U.S.C. § 1291.\\n III\\n A\\n First, Daniels challenges the district court’s denial of his motion to\\nsuppress the evidence from the motel-room search. “When a district court\\ndenies a motion to suppress evidence, we review the factual findings for clear\\nerror and legal conclusions . . . de novo.” 2 And we may affirm the decision below\\n\\n\\n\\n\\n 1 During the sentencing hearing, Daniels expressed his frustration with his lawyer.\\nAt the close of the hearing, Daniels’s counsel made an oral motion to withdraw as counsel,\\nwhich the court granted. Daniels then petitioned to vacate his sentence under 28 U.S.C. §\\n2255, arguing his counsel failed to follow his instructions to file an appeal. After an\\nevidentiary hearing, the court ordered that Daniels be allowed to file an out-of-time appeal\\nand dismissed his § 2255 motion as premature.\\n 2 United States v. Beene, 818 F.3d 157, 161 (5th Cir. 2016).\\n\\n 6\\n\\f Case: 18-30791 Document: 00515027992 Page: 7 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\n“on any basis established by the record.” 3 The burden is on Daniels to prove,\\n“by a preponderance of the evidence, that the evidence in question was\\nobtained in violation of his Fourth Amendment rights.” 4\\n “The exclusionary rule allows a defendant to suppress the evidentiary\\nfruits of a violation of his Fourth Amendment rights” to be free of unreasonable\\nsearches and seizures. 5 Although “searches and seizures inside a home without\\na warrant are presumptively unreasonable,” 6 an officer may search a person’s\\nproperty if “ ‘the exigencies of the situation’ make the needs of law enforcement\\nso compelling that [a] warrantless search is objectively reasonable.” 7 A valid\\nexigency exists when an officer believes that evidence is being destroyed—\\nalthough an officer “may not rely on the need to prevent destruction of evidence\\nwhen that exigency was ‘created’ or ‘manufactured’ by the conduct of the\\npolice.” 8 In other words, an officer may not “engag[e] or threaten[] to engage in\\nconduct that violates the Fourth Amendment” in order to create an exigency\\njustifying warrantless entry. 9\\n Assuming without deciding the issue of standing, we will first address\\nwhether there was an exigency justifying the search. 10 To do so, we use a non-\\nexhaustive five-factor test:\\n (1) the degree of urgency involved and the amount of time\\n necessary to obtain a warrant; (2) the reasonable belief that\\n\\n\\n 3 United States v. Iraheta, 764 F.3d 455, 460 (5th Cir. 2014) (quoting United States v.\\nPack, 612 F.3d 341, 347 (5th Cir. 2010)).\\n 4 Id. (quoting United States v. Kelley, 981 F.2d 1464, 1467 (5th Cir. 1993)).\\n 5 Pack, 612 F.3d at 347.\\n 6 Kentucky v. King, 563 U.S. 452, 459 (2011) (quoting Brigham City v. Stuart, 547 U.S.\\n\\n398, 403 (2006)).\\n 7 Id. at 460 (alteration in original) (quoting Mincey v. Arizona, 437 U.S. 385, 394\\n\\n(1978)).\\n 8 Id. at 461.\\n 9 Id. at 462.\\n 10 See United States v. Flores, 640 F.3d 638, 642 (5th Cir. 2011) (“[E]ven assuming [the\\n\\nDefendant] has standing to challenge the search, the good-faith exception to the exclusionary\\nrule applies under these facts.”).\\n 7\\n\\f Case: 18-30791 Document: 00515027992 Page: 8 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\n contraband is about to be removed; (3) the possibility of danger to\\n the police officers guarding the site of contraband while a search\\n warrant is sought; (4) the information indicating that the\\n possessors of the contraband are aware that the police are on their\\n trail; and (5) the ready destructibility of the contraband and the\\n knowledge that efforts to dispose of it and to escape are\\n characteristics in which those trafficking in contraband generally\\n engage. 11\\n\\n Daniels argues that a “single toilet flush” was not enough to justify entry.\\nIf a solitary flush were the only evidence of exigency in the record, he might be\\nright. But the officers relied on more than just the flush. In fact, they were\\nflush with exigency evidence. After he knocked, Agent Greaves could hear\\n“running throughout the room, running back and forth like from the right side\\nwhere the door was back to the left side by the window.” He says there were\\ntimes when James’s “voice was real close to the door” and when he “could tell\\nhe was much further away from the door,” indicating that James was running\\nback and forth. 12 Agent Greaves had told James he was a police officer, so he\\nwas “aware that the police [were] on [his] trail.” 13 And Agent Webber testified\\nthat it is “not uncommon for drug dealers to flush narcotics down the toilet.”\\nCombined with the toilet-flushing sounds, this all reasonably suggests that the\\nroom’s occupants might have been attempting to destroy evidence. The Aguirre\\nfactors therefore suggest that exigent circumstances existed justifying the\\nwarrantless search. So, the district court did not err in finding there was an\\nexigency to justify the warrantless search. The officers had a full house of\\nevidence, and a full house beats a flush. 14\\n\\n\\n\\n 11 United States v. Aguirre, 664 F.3d 606, 611 (5th Cir. 2011) (quoting United States\\nv. Mata, 517 F.3d 279, 287 (5th Cir. 2008)).\\n 12 Id.\\n 13 Aguirre, 664 F.3d at 611.\\n 14 Poker Rules—How to Play Poker Games, POKERNEWS.COM,\\nhttps://www.pokernews.com/poker-rules/ (last visited July 8, 2019).\\n 8\\n\\f Case: 18-30791 Document: 00515027992 Page: 9 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\n Now that we know an exigency existed, we must ask whether the officers\\ncreated the exigency. 15 Daniels says the officers’ aggressive conduct made him\\nbelieve that he was trapped, in violation of the Fourth Amendment, thereby\\ncreating the exigency. But the officers acted within the bounds of our caselaw.\\nIn King, police “banged on the door as loud as [they] could,” but that did not\\ncreate the exigency. 16 Even though the defendant argued that the officers\\n“demanded” entry, he couldn’t back that up with any evidence in the record. 17\\nLikewise, Daniels does not point to any evidence in the record that the agents\\nactually threatened his Fourth Amendment rights. While the officers here\\nknocked vigorously, the knocking was relatively brief—around two\\nminutes 18—and the officers did not attempt to force entry prior to hearing the\\ntoilet flush. 19 The officers did not create the exigency.\\n Daniels fails to meet his burden of showing a Fourth Amendment\\nviolation. So the district court did not err in denying his motion to suppress. 20\\n B\\n When a defendant makes a general sufficiency-of-the-evidence\\nchallenge, we review the sufficiency of the evidence supporting a conviction de\\nnovo. 21 But where the defendant asserts “specific grounds for a specific element\\nof a specific count” in his motion for judgment of acquittal under Federal Rule\\nof Criminal Procedure 29, the defendant fails to preserve any other grounds; 22\\n\\n\\n 15 See King, 563 U.S. at 461.\\n 16 See id.\\n 17 King, 563 U.S. at 471 (alteration in original).\\n 18 Cf., Westfall v. Luna, 903 F.3d 534, 545 (describing officers’ prolonged attempt to\\n\\nknock on door).\\n 19 See United States v. Hernandez, 392 F. App’x 350, 351–53 (5th Cir. 2010)\\n\\n(unpublished) (finding a Fourth Amendment violation where the officers attempted to force\\nentry by trying to open a locked door and breaking the pane of a screen door with a baton).\\n 20 Iraheta, 764 F.3d at 460.\\n 21 United States v. Brown, 727 F.3d 329, 335 (5th Cir. 2013).\\n 22 Id. (quoting United States v. Herrera, 313 F.3d 882, 884 (5th Cir. 2002) (en banc)\\n\\n(per curiam)).\\n 9\\n\\f Case: 18-30791 Document: 00515027992 Page: 10 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\naccordingly, we must ask whether there has been a “manifest miscarriage of\\njustice.” 23\\n The parties disagree over which standard applies. At the close of the\\nGovernment’s case in chief, Daniels’s counsel stated generally that he was\\nmaking “an oral motion as to a directed verdict as to all counts on the\\nsuperseding indictment as they refer to Mr. Lazandy Daniels.” 24 And although\\nhe made specific points to support the motion, they were not specific to the\\nelements of the crime. We thus review de novo. And “the relevant question is\\nwhether, after viewing the evidence in the light most favorable to the\\nprosecution, any rational trier of fact could have found the essential elements\\nof the crime beyond a reasonable doubt.” 25\\n Count 1 convicted Daniels of conspiring to distribute 5 kilograms or more\\nof powder cocaine and 28 grams or more of crack cocaine. Per Supreme Court\\ndirective, “[a] conviction for a drug conspiracy requires proof of ‘(1) an\\nagreement between two or more persons to violate the narcotics laws, (2) the\\ndefendant’s knowledge of the agreement, and (3) the defendant’s voluntary\\nparticipation in the conspiracy.’ ” 26 Here, the alleged “violat[ion of] the\\nnarcotics laws” is distributing cocaine, so, we must ask whether there was an\\nagreement to “(1) knowingly (2) distribute[ ] (3) cocaine.” 27\\n Having reviewed the record, we hold that the evidence was more than\\nsufficient for a rational trier of fact to convict Daniels. Although Daniels seeks\\n\\n\\n\\n 23 Id. (quoting United States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007)).\\n 24 See United States v. McCall, 553 F.3d 821, 830 (5th Cir. 2008) (“Rule 29 motions\\nneed not be specific.”).\\n 25 United States v. Cooper, 714 F.3d 873, 880 (5th Cir. 2013) (quoting United States v.\\n\\nUvalle–Patricio, 478 F.3d 699, 701 (5th Cir. 2007)).\\n 26 United States v. Scott, 892 F.3d 791, 797 (5th Cir. 2018) (quoting United States v.\\n\\nBooker, 334 F.3d 406, 409 (5th Cir. 2003)).\\n 27 United States v. Gordon, 876 F.2d 1121, 1125 (5th Cir. 1989) (citing 21 U.S.C §\\n\\n841(a)(1)).\\n 10\\n\\f Case: 18-30791 Document: 00515027992 Page: 11 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\nto characterize himself as James’s unwitting, overly helpful friend, the trial\\nevidence was sufficient to prove that Daniels agreed to distribute both powder\\nand crack cocaine; that he knew about the agreement; and that he participated\\nvoluntarily. 28 James and Joppa Jackson testified that Daniels helped them\\ntransport cocaine from Houston to New Orleans. 29 Sometimes Daniels would\\nprovide drugs to Joppa Jackson even when James wasn’t around. James also\\ntestified that Daniels helped him wrap money in cellophane and load the cars\\nwith money “[a]ll the time.” Both James and Joppa Jackson testified that they\\nfronted crack cocaine to Daniels so that Daniels could sell it.\\n A rational trier of fact could easily find that Daniels was conspiring to\\ndistribute 5 kilograms or more of powder cocaine and 28 grams or more of crack\\ncocaine beyond a reasonable doubt. There was sufficient evidence to convict\\nDaniels of Count 1.\\n Count 2 accused Daniels of knowingly and intentionally distributing\\ncrack cocaine on May 4, 2015 (the white SUV episode). As with Count 1, there’s\\nample evidence to show that Daniels “(1) knowingly (2) distributed (3) [crack]\\ncocaine.” 30\\n The jury saw video footage of the transaction. Officers apprehended the\\nwoman shortly after and saw her throw a piece of crack cocaine out her car\\nwindow. And when officers searched Daniels’s house later, they found cocaine\\nresidue and $2,000 in cash. A rational trier of fact could easily find that Daniels\\nknowingly and intentionally distributed crack cocaine. There was no error.\\n\\n\\n\\n\\n 28 See Scott, 892 F.3d at 797.\\n 29 Joppa testified that he would buy “between 10 and 20” kilograms of cocaine from\\nJames at a time, which he would pick up from Daniels at the salvage yard. James also\\ntestified that Daniels would help him unload anywhere from 4 to 12 kilograms of cocaine\\nfrom the cars at a time.\\n 30 Gordon, 876 F.2d at 1125.\\n\\n 11\\n\\f Case: 18-30791 Document: 00515027992 Page: 12 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\n Count 3 accused Daniels of aiding and abetting the knowing and\\nintentional possession of 28 grams or more of crack cocaine with intent to\\ndistribute on December 2, 2015 (the motel-room episode). 31 As we reiterated in\\nUnited States v. Cain, “[t]he essential elements of possession with the intent\\nto distribute controlled substances . . . are 1) knowledge, 2) possession, and 3)\\nintent to distribute the controlled substances.” 32 A conviction for aiding and\\nabetting requires proof that “the substantive offense occurred and that the\\ndefendant (1) associated with the criminal venture; (2) purposefully\\nparticipated in the crime; and (3) sought by his actions for it to succeed.” 33 And\\nas Scott clarified, a defendant who aids and abets the possession with intent to\\ndistribute a controlled substance “need not have actual or constructive\\npossession of the drugs.” 34\\n Daniels’s arguments focus on possession of the drugs. He says he didn’t\\nhave any drugs on him when he was found in the motel bathroom and that his\\nfriend was the only person who actually brought crack cocaine to the motel\\nroom. But Count 3 was for aiding and abetting, so actual or constructive\\npossession is irrelevant. 35\\n The record clearly reflects Daniels’s association with the criminal\\nventure. As already mentioned, Daniels has a long history of assisting James\\nwith his drug smuggling business. He also closely associated himself with the\\ncriminal venture on the day in question by coming and going from the motel\\nroom and by dining with the other participants.\\n\\n\\n\\n 31 We think it important to note that while the First Superseding Indictment charged\\nDaniels with intentional possession, his ultimate conviction was for aiding and abetting.\\n 32 440 F.3d 672, 675 (5th Cir. 2006) (quoting United States v. Delgado, 256 F.3d 264,\\n\\n274 (5th Cir. 2001)).\\n 33 Scott, 892 F.3d at 798 (quoting United States v. Pando Franco, 503 F.3d 389, 394\\n\\n(5th Cir. 2007)).\\n 34 Id. at 799 (quoting United States v. Williams, 985 F.2d 749, 753 (5th Cir. 1993)).\\n 35 See Scott, 892 F.3d at 799\\n\\n 12\\n\\f Case: 18-30791 Document: 00515027992 Page: 13 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\n The record is replete with evidence relevant to elements two and three:\\n(2) purposeful participation and (3) seeking the crime’s success. Daniels visited\\nthe hotel room where the crime took place multiple times in the days leading\\nup to the arrest. Daniels provided the cellophane for cash wrapping. After the\\nfateful toilet flush, DEA agents entered the room and found Daniels seated on\\nthe toilet, fully clothed, with the seat cover down. The hotel room contained\\n$286,000 in cash and six ounces of crack cocaine.\\n Viewing the evidence in the light most favorable to the prosecution, a\\nrational trier of fact could easily conclude that Daniels was aiding and\\nabetting. 36 There was sufficient evidence to convict Daniels of Count 3.\\n C\\n Next, Daniels says the district court abused its discretion when it\\ngranted the Government’s motion in limine to stop him from discussing Agent\\nMoran’s alleged misconduct. After all, says Daniels, Moran played a vital role\\nin his arrest, so information regarding his credibility is relevant, and the risk\\nof prejudice to the Government is low. The Government flatly disagrees. We\\nagree with the Government and cannot say the district court abused its\\ndiscretion in granting the motion in limine.\\n We review evidentiary rulings for abuse of discretion. 37 We “will not\\nvacate a conviction based on an error committed by the district court unless\\nthe error was harmful, affecting a substantial right of the complaining party,”\\nmeaning that the “trier of fact would have found the defendant guilty beyond\\na reasonable doubt with the additional evidence inserted.” 38\\n\\n\\n\\n 36 See Cooper, 714 F.3d at 880.\\n 37 United States v. Willett, 751 F.3d 335, 343 (5th Cir. 2014); cf. FED. R. EVID. 103(b)\\n(moving party does not need to renew objection to court ruling on the record to preserve claim\\nof error for appeal).\\n 38 Willett, 751 F.3d at 343 (quoting United States v. Wen Chyu Liu, 716 F.3d 159, 169\\n\\n(5th Cir. 2013)).\\n 13\\n\\f Case: 18-30791 Document: 00515027992 Page: 14 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\n Generally, relevant evidence is admissible. 39 Nevertheless, a court may\\nexclude relevant evidence “if its probative value is substantially outweighed by\\na danger of one or more of the following: unfair prejudice, confusing the issues,\\nmisleading the jury, undue delay, wasting time, or needlessly presenting\\ncumulative evidence.” 40\\n Although Moran was under investigation, the district court didn’t believe\\nthat fact was particularly probative. Nothing in the record indicates that\\nMoran’s investigation concerned anything in this case; rather, it was a “broad\\nprobe into law enforcement misconduct involving members of a DEA Task\\nForce that included DEA Special Agents, officers from the Tangipahoa Parish\\nSheriff’s Office, and officers from the Hammond Police Department.” The\\nGovernment’s case didn’t require Agent Moran’s testimony. Allowing Daniels\\nto present testimony on this point, however, would likely have unfairly\\nprejudiced the Government’s case. Plus, it could easily have confused the jury\\nabout whose guilt was at issue. Given all of this, we can’t say the district court\\nwent so far afield as to abuse its discretion.\\n This too merits mention: Even if the district court had abused its\\ndiscretion, the only error that resulted was harmless. Daniels hasn’t explained\\nwhat information about Moran’s conduct he would have presented to the jury.\\nOn top of that, it’s not clear that any such information would’ve been\\nadmissible. 41 After all, the Government argues, Moran never testified, so\\nFederal Rules of Evidence 608 and 609 would probably render Daniels’s\\nhypothetical evidence inadmissible. Additionally, Federal Rule of Evidence\\n404(a)—prohibiting the admission of character evidence “to prove that on a\\n\\n\\n\\n 39 FED. R. EVID. 402.\\n 40 FED. R. EVID. 403.\\n 41 Even though the Government pointed this out in its briefing, Daniels didn’t respond\\n\\nor elaborate in his reply brief.\\n 14\\n\\f Case: 18-30791 Document: 00515027992 Page: 15 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\nparticular occasion [a] person acted in accordance with the character or trait”—\\nwould likely close the door on Daniels.\\n In sum, the district court didn’t abuse its discretion. And even if it did,\\nany resulting error was harmless.\\n D\\n Now we come to the final issue: Did the district court violate the\\nConfrontation Clause? That is, did Agent Moran have to testify at the\\nsuppression hearing after he asserted his Fifth Amendment right against self-\\nincrimination? Daniels says yes, because Moran played a significant role in the\\ncase, and his testimony was necessary. The Government responds that: (1) the\\ndistrict court couldn’t have made Moran testify after he asserted his Fifth\\nAmendment rights; (2) Moran didn’t even testify, so Daniels didn’t lose his\\nability to cross-examine him; and (3) Daniels said he would’ve asked Moran\\nabout his police report and search-warrant applications—but both of these\\nwere written after the search, so they’re not relevant. Again, we side with the\\nGovernment.\\n We review Confrontation Clause objections de novo, subject to harmless\\nerror review. 42 The Sixth Amendment guarantees a defendant the right “to be\\nconfronted with the witnesses against him.” 43 This means a prosecutor can’t\\nrely on an “out-of-court testimonial statement unless the witness is\\nunavailable and the defendant had a prior opportunity to cross-examine the\\nwitness.” 44 We’ve said before that, although the Sixth Amendment right to\\nconfront is a trial right, it also applies to suppression hearings. 45\\n\\n\\n\\n\\n 42 United States v. Acosta, 475 F.3d 677, 680 (5th Cir. 2007).\\n 43 U.S. Const. amend. VI.\\n 44 Acosta, 475 F.3d at 680.\\n 45 United States v. Stewart, 93 F.3d 189, 192 n.1 (5th Cir. 1996).\\n\\n 15\\n\\f Case: 18-30791 Document: 00515027992 Page: 16 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\n The district court didn’t err: The Sixth Amendment didn’t require Moran\\nto testify. Daniels doesn’t cite any case that says the district court could have\\nand should have compelled Moran to testify. And we can’t find any such case\\neither. 46\\n Daniels argues that Moran was the only one who heard the toilet flush.\\nIf Moran were the only witness who could offer toilet testimony and the\\nGovernment had presented hearsay evidence about it, then the district court\\nmight have violated Moran’s right to confrontation. But the Government didn’t\\neven need to rely on hearsay to establish that the toilet flushed because Agent\\nDel Valle also testified about it. Plus, Daniels had the opportunity to cross-\\nexamine Agent Del Valle.\\n At the very least, Daniels argues, Moran should have been forced to\\ntestify about his police report or his application for a search warrant. But\\n(again) he doesn’t point to any evidence that the Government broached these\\ntopics at the suppression hearing. And (again) the police report and warrant\\napplication both happened after the warrantless entry, so they weren’t relevant\\nto the suppression hearing. So even if the district did misstep, the error was\\nharmless.\\n The Government’s failure to put Moran on as a witness also didn’t violate\\nDaniels’s Sixth Amendment right to compulsory process. The right to\\ncompulsory process is the defendant’s own right to present evidence that\\n“would have been relevant and material to the defense.” 47 Daniels can’t use the\\ncompulsory-process clause to compel the Government to call its own witnesses.\\nAnd even if Daniels were arguing that he wanted to call Moran in his own\\n\\n\\n\\n\\n 46 The Government pointed out that Daniels can point to no authority to support his\\nposition, but Daniels still didn’t cite any case law in his reply brief.\\n 47 Washington v. Texas, 388 U.S. 14, 23 (1967).\\n\\n 16\\n\\f Case: 18-30791 Document: 00515027992 Page: 17 Date Filed: 07/10/2019\\n\\n\\n\\n No. 18-30791\\ndefense, we have held that “a witness’[s] right against self-incrimination will\\noutweigh a defendant’s right to force that witness to testify.” 48\\n For all these reasons, we find that the district court committed no\\nharmful error by not requiring Moran to testify.\\n IV\\n For the reasons explained above, we AFFIRM Daniels’s convictions.\\n\\n\\n\\n\\n 48 Brown v. Cain, 104 F.3d 744, 749 (5th Cir. 1997).\\n 17\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2991,"cells":{"id":{"kind":"number","value":4638257,"string":"4,638,257"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"USA v. Luminant Generation Co.,L.L.C., et a"},"decision_date":{"kind":"string","value":"2019-07-10"},"docket_number":{"kind":"string","value":"17-10235"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before STEWART, Chief Judge, JONES, SMITH, DENNIS, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"Judge Ho is recused and did not participate in this decision\", \"type\": \"010combined\", \"text\": \"IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n _____________________ United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 17-10235 July 10, 2019\\n _____________________\\n Lyle W. Cayce\\n Clerk\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellant\\n\\nSIERRA CLUB,\\n\\n Intervenor Plaintiff - Appellant\\nv.\\n\\nLUMINANT GENERATION COMPANY, L.L.C.; BIG BROWN POWER\\nCOMPANY, L.L.C.,\\n\\n Defendants - Appellees\\n\\n __________________________\\n\\n Appeal from the United States District Court for the\\n Northern District of Texas\\n __________________________\\n\\n ON PETITION FOR REHEARING EN BANC\\n\\n (Opinion October 1, 2018, 5 Cir., 2018, 905 F.3d 874)\\n\\nBefore STEWART, Chief Judge, JONES, SMITH, DENNIS, OWEN,\\nELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA,\\nWILLETT, DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges. 1\\n\\n\\n\\n\\n 1 Judge Ho is recused and did not participate in this decision.\\n\\f No. 17-10235\\n\\nBY THE COURT:\\n\\n A member of the court having requested a poll on the petition for rehearing\\nen banc, and a majority of the circuit judges in regular active service and not\\ndisqualified having voted in favor,\\n IT IS ORDERED that this cause shall be reheard by the court en banc\\nwith oral argument on a date hereafter to be fixed. The Clerk will specify a\\nbriefing schedule for the filing of supplemental briefs.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4415510/\", \"author_raw\": \"Judge Ho is recused and did not participate in this decision\"}]}"},"judge1":{"kind":"string","value":"STEWART"},"judge2":{"kind":"string","value":"JONES"},"judge3":{"kind":"string","value":"SMITH"},"exactly_three_caps":{"kind":"number","value":2,"string":"2"},"extra_judges":{"kind":"string","value":"DENNIS; OWEN; ELROD; SOUTHWICK; HAYNES; GRAVES; HIGGINSON; COSTA; WILLETT; DUNCAN; ENGELHARDT; OLDHAM"},"judge_designations":{"kind":"string","value":"{\"STEWART\": \", Chief\", \"JONES\": \", Circuit\", \"SMITH\": \", Circuit\", \"DENNIS\": \", Circuit\", \"OWEN\": \", Circuit\", \"ELROD\": \", Circuit\", \"SOUTHWICK\": \", Circuit\", \"HAYNES\": \", Circuit\", \"GRAVES\": \", Circuit\", \"HIGGINSON\": \", Circuit\", \"COSTA\": \", Circuit\", \"WILLETT\": \", Circuit\", \"DUNCAN\": \", Circuit\", \"ENGELHARDT\": \", Circuit\", \"OLDHAM\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4638257/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: USA v. Luminant Generation Co.,L.L.C., et a\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n _____________________ United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 17-10235 July 10, 2019\n _____________________\n Lyle W. Cayce\n Clerk\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellant\n\nSIERRA CLUB,\n\n Intervenor Plaintiff - Appellant\nv.\n\nLUMINANT GENERATION COMPANY, L.L.C.; BIG BROWN POWER\nCOMPANY, L.L.C.,\n\n Defendants - Appellees\n\n __________________________\n\n Appeal from the United States District Court for the\n Northern District of Texas\n __________________________\n\n ON PETITION FOR REHEARING EN BANC\n\n (Opinion October 1, 2018, 5 Cir., 2018, 905 F.3d 874)\n\nBefore STEWART, Chief Judge, JONES, SMITH, DENNIS, OWEN,\nELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA,\nWILLETT, DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges. 1\n\n\n\n\n 1 Judge Ho is recused and did not participate in this decision.\n\f No. 17-10235\n\nBY THE COURT:\n\n A member of the court having requested a poll on the petition for rehearing\nen banc, and a majority of the circuit judges in regular active service and not\ndisqualified having voted in favor,\n IT IS ORDERED that this cause shall be reheard by the court en banc\nwith oral argument on a date hereafter to be fixed. The Clerk will specify a\nbriefing schedule for the filing of supplemental briefs.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: USA v. Luminant Generation Co.,L.L.C., et a\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-10\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nIN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n _____________________ United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 17-10235 July 10, 2019\\n _____________________\\n Lyle W. Cayce\\n Clerk\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellant\\n\\nSIERRA CLUB,\\n\\n Intervenor Plaintiff - Appellant\\nv.\\n\\nLUMINANT GENERATION COMPANY, L.L.C.; BIG BROWN POWER\\nCOMPANY, L.L.C.,\\n\\n Defendants - Appellees\\n\\n __________________________\\n\\n Appeal from the United States District Court for the\\n Northern District of Texas\\n __________________________\\n\\n ON PETITION FOR REHEARING EN BANC\\n\\n (Opinion October 1, 2018, 5 Cir., 2018, 905 F.3d 874)\\n\\nBefore STEWART, Chief Judge, JONES, SMITH, DENNIS, OWEN,\\nELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA,\\nWILLETT, DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges. 1\\n\\n\\n\\n\\n 1 Judge Ho is recused and did not participate in this decision.\\n\\f No. 17-10235\\n\\nBY THE COURT:\\n\\n A member of the court having requested a poll on the petition for rehearing\\nen banc, and a majority of the circuit judges in regular active service and not\\ndisqualified having voted in favor,\\n IT IS ORDERED that this cause shall be reheard by the court en banc\\nwith oral argument on a date hereafter to be fixed. The Clerk will specify a\\nbriefing schedule for the filing of supplemental briefs.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2992,"cells":{"id":{"kind":"number","value":4638260,"string":"4,638,260"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Jose Caycho Melgar v. T.B. Butler Publishing Compa"},"decision_date":{"kind":"string","value":"2019-07-10"},"docket_number":{"kind":"string","value":"18-41080"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before BENAVIDES, HAYNES, and WILLETT, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-41080 July 3, 2019\\n Summary Calendar\\n Lyle W. Cayce\\n Clerk\\nJOSE CARLOS CAYCHO MELGAR,\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nT.B. BUTLER PUBLISHING COMPANY, INCORPORATED; T.B.B.\\nPRINTING LIMITED; NELSON CLYDE, IV,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Texas\\n\\n\\nBefore BENAVIDES, HAYNES, and WILLETT, Circuit Judges.\\nPER CURIAM:\\n Plaintiff-Appellant Jose Carlos Caycho Melgar (“Caycho”), 1 proceeding\\nin forma pauperis, appeals the district court’s grant of summary judgment in\\nfavor of his employer on his claims of discrimination based on age, disability,\\nand national origin. The district court held that Caycho had filed an untimely\\ncharge of discrimination and thus failed to properly exhaust his administrative\\n\\n\\n\\n 1 The Defendants-Appellees refer to Caycho as “Melgar.” Additionally, the record\\ndemonstrates that Caycho also sometimes uses the last name “Valencia.” Because the\\nPlaintiff-Appellant refers to himself as “Caycho” in his appellate brief before us, we will refer\\nto him as “Caycho.”\\n\\f No. 18-41080\\nremedies prior to seeking relief in federal court. Finding no reversible error,\\nwe AFFIRM.\\n I. FACTUAL AND PROCEDURAL HISTORY\\n Caycho was employed by T.B.B. Printing, Ltd., a subsidiary of T.B.\\nPublishing Company, Inc., (referred to collectively as “T.B.B. Printing”) from\\nSeptember 2011 to December 2013. After Caycho left T.B.B. Printing, he filled\\nout an intake questionnaire with the Texas Workforce Commission (“TWC”).\\nOn that form, Caycho checked the boxes for retaliation and discrimination\\nbased on national origin. Although that form is not dated, there are emails in\\nthe record between Caycho and Hector Macias, a TWC Intake Investigator.\\nThe emails state that the form was emailed on June 30, 2014. There are\\nseveral emails in which Macias unsuccessfully attempts to obtain information\\nfrom Caycho. An email dated August 11, 2014, from Macias’s supervisor\\n(Walter Bryan) to Caycho states as follows: “It is impossible to understand\\nyour written response to Mr. Macias’ request that you provide a number where\\nwe can speak with you. We have transferred this complaint out of an\\nabundance of caution for the statute of limitations.” Additionally, the TWC\\nsent Caycho a form letter dated August 15, 2014, notifying him that his\\ncomplaint was untimely for TWC, which had a 180-day deadline. The letter\\nfurther provided that the complaint was within the 300-day deadline for the\\nEqual Employment Opportunity Commission (EEOC) and that TWC had\\nforwarded the complaint to the EEOC for investigation.\\n On September 23, 2014, the EEOC sent Caycho a letter stating that it\\nwould review his “correspondence concerning allegations of possible\\nemployment discrimination.” The letter provided an EEOC inquiry number\\nfor the case and informed Caycho that it could take between 90 and 120 days\\nbefore he would be contacted by the EEOC and that any additional information\\nfrom him had to be in writing.\\n 2\\n\\f No. 18-41080\\n On October 1, 2014, the EEOC sent Caycho a letter informing him that\\nhe would receive a phone call at 10:15 am on October 22, 2014, and that the\\ninterview should not take more than an hour. The letter also stated that a\\ncharge had not been filed at this time and that the “EEOC do[es] apologize for\\nthe long delay in assessing [his] inquiry.” It also instructed him to have any\\ndocuments or evidence in support of his claims available during the interview\\nand that the investigatory would provide him a preliminary assessment of his\\nallegations and options going forward.\\n More than eight months later, on June 12, 2015, the EEOC sent a letter\\nto the Human Resources Department of T.B.B. Printing informing the\\ncompany that a party had filed a charge of employment discrimination against\\nit. The letter further provided that although the EEOC had not timely served\\nthe company, it intended to investigate the claim and that the delay in serving\\nthe charge “occurred through no fault of the Charging Party.” Additionally, it\\nprovided that the company would be receiving a formal charge of\\ndiscrimination within 60 days.\\n On July 17, 2015, Monica Fernandez (“Fernandez”), an EEOC\\ninvestigator assigned to Caycho’s case, sent him a letter instructing him to\\nread, sign, and date the attached form (EEOC Form 5) and return it to her “no\\nlater than close of business, August 4, 2015.” The letter informed Caycho that\\nthe EEOC found that his evidence “does not substantiate a violation under the\\nlaws enforced by this agency,” that the EEOC will issue a dismissal and that\\nCaycho had 90 days from the date of his receipt of the Dismissal Notice to file\\nsuit in court.\\n On August 20, 2015, Fernandez sent Caycho another letter instructing\\nhim to read, sign and date the attached charge of discrimination (EEOC Form\\n5) and return it to the EEOC “no later than close of business, September 8,\\n2015.” The letter also stated that per his request the “name of the joint\\n 3\\n\\f No. 18-41080\\ncompany ha[d] been added to your charge of discrimination” and that there\\nwere “two additional blank pages for you to add additional issues to your\\ncharge.” It again informed Caycho that the EEOC found that his evidence\\n“does not substantiate a violation under the laws enforced by this agency,” that\\nthe EEOC will issue a dismissal and that Caycho had 90 days from the date of\\nhis receipt of the Dismissal Notice to file suit in federal district court.\\n Subsequently, on November 11, 2015, Fernandez emailed Caycho the\\nfollowing: “Can you please call me before December 17, 2015? I haven’t been\\nable to proceed with your charge, since you have not signed it yet. Please find\\nthe charge of discrimination attached for your signature.” The email also\\nnotified him that if he did not respond by December 17, 2015, his charge would\\nbe dismissed.\\n On December 16, 2015, the EEOC received Caycho’s signed and dated\\n(December 15, 2015) EEOC Form 5 Charge of Discrimination. On January 26,\\n2016, the EEOC issued a Dismissal and Notice of Rights to Caycho. The notice\\nprovided that the EEOC had been unable to conclude that the information\\nobtained from him established any violations of the statutes and that he had\\n90 days to file suit in state or federal court. On April 20, 2016, Caycho,\\nproceeding pro se, filed the instant employment discrimination suit in federal\\ndistrict court. The complaint listed the defendants as T.B. Butler Publishing\\nCompany Inc., T.B.B. Printing Ltd., Nelson Clyde IV (“Clyde”), and three\\nunknown FBI agents. 2 The T.B.B. Printing defendants filed a motion to\\ndismiss for failure to state a claim. Clyde also filed a motion to dismiss for\\nfailure to state a claim.\\n\\n\\n\\n\\n 2Clyde, who was president of T.B. Butler Publishing Company, and the three\\nunknown FBI agents are not party to the instant appeal.\\n 4\\n\\f No. 18-41080\\n The magistrate judge issued a report and recommendation that Clyde’s\\nmotion to dismiss be granted because although he was an officer at the\\ncompany, he was not Caycho’s employer. With respect to the claims against\\nT.B.B. Printing, the magistrate judge opined that Caycho’s “pleadings do not\\nallege any facts that would support a claim pursuant to 42 U.S.C. § 1985, the\\nLilly Ledbetter Fair Pay Act of 2009, 42 U.S.C. § 1981, 42 U.S.C. § 1982, 42\\nU.S.C. § 1983 and 42 U.S.C. § 1986.” Thus, it recommended that those claims\\nbe dismissed for failure to state a claim. However, the magistrate judge\\nrecommended that the motion to dismiss the remaining claims of\\ndiscrimination based upon age, disability and national origin be denied. After\\na de novo review, the district court adopted the report and recommendation.\\n The parties consented to proceed before the magistrate judge pursuant\\nto 28 U.S.C. § 636(c). T.B.B. Printing subsequently filed a motion for summary\\njudgment as to the remaining claims, arguing that Caycho’s claims were\\nbarred for failure to exhaust his administrative remedies because Caycho\\nfailed to timely file a charge of discrimination with the EEOC within the 300-\\nday deadline. The district court agreed and stated that because Caycho “filed\\nan untimely charge of discrimination nearly two years after his employment\\nwas terminated . . . he failed to exhaust his administrative remedies.” The\\ncourt also rejected Caycho’s contention that he was entitled to equitable tolling\\nto excuse the delayed filing of the charge of discrimination. Thus, the court\\ngranted T.B.B. Printing’s motion for summary judgment. Caycho timely filed\\na notice of appeal.\\n II. STANDARD OF REVIEW\\n We review a grant of summary judgment de novo, applying the same\\nstandards as the district court. Am. Home Assurance Co. v. United Space\\nAlliance, LLC, 378 F.3d 482, 486 (5th Cir. 2004). “A summary judgment\\nmotion is properly granted only when, viewing the evidence in the light most\\n 5\\n\\f No. 18-41080\\nfavorable to the nonmoving party, the record indicates that there is no genuine\\nissue as to any material fact, and that the moving party is entitled to judgment\\nas a matter of law.” Id.; see also FED. R. CIV. P. 56(a).\\n III. ANALYSIS\\n A. Sufficiency of the Charge of Discrimination\\n Caycho argues that the district court erred in holding that he filed an\\nuntimely charge of discrimination, which resulted in his failure to properly\\nexhaust his administrative remedies. To bring a suit under Title VII, the ADA\\n(disability), or the ADEA (age), a complainant must file a charge of\\ndiscrimination with the EEOC to exhaust his administrative remedies. Price\\nv. Southwestern Bell Telephone Co., 687 F.2d 74, 77 (5th Cir. 1982) (Title VII);\\nDao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996) (recognizing that\\nthe ADA incorporates by reference Title VII’s administrative procedures);\\nFoster v. Nat’l Bank of Bossier City, 857 F.2d 1058, 1060 (5th Cir. 1988)\\n(ADEA). 3\\n Caycho’s principal argument is that the intake questionnaire he\\nsubmitted to the TWC suffices as a charge of discrimination for the EEOC.\\nCaycho is correct that if his TWC intake questionnaire constitutes a charge of\\ndiscrimination, it was timely filed “within three hundred days after the alleged\\nunlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1) (stating\\n\\n\\n 3Caycho contends that the defendants forfeited the affirmative defense of his failure\\nto exhaust his administrative remedies because they did not timely raise the defense. On\\nSeptember 26, 2017, the district court ordered T.B.B. Printing to answer Caycho’s claims of\\ndiscrimination based on age, disability and national origin within 30 days. On October 25,\\n2017, T.B.B. Printing complied with the order and filed its original answer to Caycho’s first\\namended complaint. This original answer raised the defense that Caycho’s discrimination\\nclaims were barred based on his failure to timely file a charge with the EEOC. Caycho\\nmistakenly refers to the defendants’ original answer as their “third amended answer.” The\\ndefendants had previously filed a motion to dismiss pursuant to Federal Rule of Civil\\nProcedure 12(b)(6); however, a “Rule 12(b)(6) motion is not a ‘responsive pleading.’”\\nMcKinney v. Irving Indep. Sch. Dist., 309 F.3d 308, 315 (5th Cir. 2002) (citation omitted).\\nAccordingly, Caycho has failed to show that the defendants untimely raised this defense.\\n 6\\n\\f No. 18-41080\\nthat if complainant first pursues state or local remedies, the charge must be\\nfiled with the EEOC within 300 days of the alleged unlawful employment\\npractice). The latest allegations of discrimination on the intake questionnaire\\nare in December of 2013, and although the questionnaire was not dated, the\\nemail conversation in the record indicates that the form was sent on June 30,\\n2014.\\n We must determine whether the TWC intake questionnaire sufficed as a\\ncharge of discrimination with the EEOC. When analyzing whether a plaintiff\\nhas exhausted a claim, this Court has noted that “the scope of an EEOC\\ncomplaint should be construed liberally.” Pacheco v. Mineta, 448 F.3d 783, 788\\n(5th Cir. 2006). “On the other hand, a primary purpose of Title VII is to trigger\\nthe investigatory and conciliatory procedures of the EEOC, in attempt to\\nachieve non-judicial resolution of employment discrimination claims.” Id. at\\n788–89. In light of these considerations, we interpret “what is properly\\nembraced in review of a Title–VII claim somewhat broadly, not solely by the\\nscope of the administrative charge itself, but by the scope of the EEOC\\ninvestigation which can reasonably be expected to grow out of the charge of\\ndiscrimination.” Id. at 789. The charge should allege that the employer\\nengaged in an unlawful employment practice. 42 U.S.C. § 2000e-5(b). This\\nCourt has explained that “the crucial element of a charge of discrimination is\\nthe factual statement contained therein.” Price, 687 F.2d at 78 (quoting\\nSanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970)).\\n In Price, we found there was a fact issue as to whether the charge was\\nsufficient. 687 F.2d at 78-79. We pointed out that there was no evidence that\\nthe complainant had been informed that the charge was inadequate. Id. at 79.\\nThus, we concluded that “it would not be unreasonable for Price, unschooled in\\nthe law and without the aid of counsel, to take no further action during the\\nlimitations period in the belief that she had done that which was required of\\n 7\\n\\f No. 18-41080\\nher.” Id. at 79. Like the complainant in Price, Caycho is proceeding pro se.\\nHowever, unlike in Price, Caycho’s intake questionnaire was not treated as a\\ncharge of discrimination. Indeed, the TWC expressly informed him that it had\\nbeen “unable to draft a charge on your behalf.” Thus, in the instant case, it\\nwould have been unreasonable for Caycho to believe the intake questionnaire\\nsufficed as a charge. The regulations require a “clear and concise statement of\\nthe facts, including pertinent dates, constituting the alleged unlawful\\nemployment practices.” 29 C.F.R. § 1601.12(a)(3). The intake questionnaire\\ndoes not contain a clear and concise statement of facts alleging unlawful\\nemployment practices. We agree with the district court that under these\\ncircumstances the intake questionnaire does not suffice as a charge of\\ndiscrimination. 4\\n B. Equitable Tolling\\n Caycho contends that the district court erred in refusing to apply the\\ndoctrine of equitable tolling. The “limitations period on filing a charge of\\nemployment discrimination is subject to equitable doctrines such as tolling or\\nestoppel.” Manning v. Chevron Chemical Co., 332 F.3d 874, 880 (5th Cir. 2003)\\n(internal quotation marks and citations omitted); 29 C.F.R. § 1614.604(c). As\\nthe plaintiff, Caycho bears the burden of demonstrating the basis for tolling\\nthe limitations period. Wilson v. Sec’y, Dep’t of Veterans Affairs, 65 F.3d 402,\\n404 (5th Cir. 1995). This Court reviews a district court’s decision to deny\\nequitable tolling for abuse of discretion. Teemac v. Henderson, 298 F.3d 452,\\n\\n\\n\\n\\n 4 We note that Caycho had not signed the intake questionnaire. However, such a\\ndefect is not fatal in that the regulations allow technical defects to be cured by filing an\\namended charge, and the amended charge would relate back to the date the charge was first\\nreceived. 29 C.F.R. §1601.12(b). We further note that the TWC treated Caycho’s filing as\\nuntimely; however, whether the complaint was timely filed with the TWC has no effect on\\nthe 300-day filing period for the EEOC charge. Griffin v. City of Dallas, 26 F.3d 610, 612\\n(5th Cir. 1994).\\n 8\\n\\f No. 18-41080\\n457 (5th Cir. 2002). We have opined that equitable tolling can excuse an\\nuntimely filing in the following circumstances: “(1) the pendency of a suit\\nbetween the same parties in the wrong forum; (2) plaintiff’s unawareness of\\nthe facts giving rise to the claim because of the defendant’s intentional\\nconcealment of them; and (3) the EEOC’s misleading the plaintiff about the\\nnature of her rights.” Id. (citation omitted).\\n With respect to the first basis for tolling, Caycho asserts that TWC had\\njurisdiction over his claim and that the EEOC was the wrong forum. This\\nassertion is without merit. We have explained that “equitable tolling is\\nappropriate in the rare case when the parties have been litigating an action in\\nstate court, but they later discover that they chose the wrong forum under state\\nlaw.” Manning, 332 F.3d at 880. The parties at bar were not litigating in state\\ncourt. Moreover, the EEOC was the proper forum because to bring suit under\\nTitle VII, a complainant must first file a charge with the EEOC to exhaust his\\nadministrative remedies. Price, 687 F.2d at 77. This argument does not\\nprovide a justification for applying equitable tolling to the limitations period.\\n With respect to the second basis for tolling previously set forth, Caycho\\ncontends that, from August to December of 2013, T.B.B. Printing “concealed”\\nits actions and the actions of law enforcement agents. It appears the law\\nenforcement agents he refers to in his brief are the “unknown agents of the\\nFBI” listed as defendants in his complaint filed in district court. It is unclear\\nwhat actions were allegedly concealed. In any event, if the actions were\\nconcealed from August to December of 2013, any alleged concealment would\\nhave had no effect on the limitations period which began to run after December\\n31, 2013. Caycho has not shown that equitable tolling is justified under the\\nsecond basis.\\n As for the third basis, Caycho asserts that the EEOC misled him when\\nit informed him that “‘allegation accepted only up to August 20, 2014,’ that led\\n 9\\n\\f No. 18-41080\\nto the untimely formulat[ion] of a charge.” Brief at 43. “We apply equitable\\ntolling when an employee seeks information from the EEOC, and the\\norganization gives the individual incorrect information that leads the\\nindividual to file an untimely charge.” Manning, 332 F.3d at 881. It is unclear\\nhow the EEOC allegedly misled him. Caycho has not shown that equitable\\ntolling is justified under the third basis.\\n Nonetheless, we have opined that there may be other bases that warrant\\nequitable tolling. Hood v. Sears Roebuck & Co., 166 F.3d 231, 232 (5th Cir.\\n1999). Caycho also contends that the “time elapsed due to the administrative\\noffice’s inaction deserved to stop the running of the statute of limitations.”\\nBrief at 25.\\n Here, the district court concluded that Caycho was responsible for the\\nentire delay in filing the EEOC charge. The delay was from December 31, 2013\\nto December 15, 2015. Viewing the record in the light most favorable to\\nCaycho, the nonmoving party, we must disagree with the conclusion that\\nCaycho was responsible for the entire delay. As indicated previously, on\\nSeptember 23, 2014, the EEOC sent Caycho a letter stating that it would\\nreview his “correspondence concerning allegations of possible employment\\ndiscrimination.” The letter also informed Caycho that it could take between\\n90 and 120 days before he would be contacted by the EEOC. At that point, we\\nbelieve “it would not be unreasonable for [Caycho], unschooled in the law and\\nwithout the aid of counsel, to take no further action during the limitations\\nperiod in the belief that [he] had done that which was required of [him].” Price,\\n687 F.2d at 79. The EEOC certainly believed that was the case. In a June 12,\\n2015 letter, the EEOC informed T.B.B. Printing that a party had alleged\\nemployment discrimination against it. The letter further provided that\\nalthough the EEOC had not timely served the company, the delay in serving\\nthe charge “occurred through no fault of the Charging Party.” Thus, the EEOC\\n 10\\n\\f No. 18-41080\\nexplicitly stated that the delay was not Caycho’s fault. Viewing the evidence\\nin the light most favorable to Caycho, we will not attribute the delay starting\\nfrom the September 23, 2014 EEOC letter to Caycho. Cf. McKee v. McDonnell\\nDouglas Tech. Serv., 700 F.2d 260, 264 (5th Cir. 1983) (explaining that a\\n“complainant is not to be prejudiced by the EEOC’s failure to fulfill its duty”).\\n Subsequently, however, in a letter dated July 17, 2015, the EEOC\\ninformed Caycho that he was to read, sign, and date the attached form and\\nreturn it to the EEOC “no later than close of business, August 4, 2015.”\\nAccordingly, on August 4, 2015, the limitations period began to run again. In\\nother words, any delay after August 4, 2015, in filing the charge is attributed\\nto Caycho. The periods of delay attributable to Caycho are from December 31,\\n2013 to September 23, 2014 (38 weeks) and August 4, 2015 to December 15,\\n2015 (19 weeks). Our calculation is that 399 days are attributable to Caycho.\\nThe deadline to file was within 300 days. Assuming arguendo for purposes of\\nthis appeal that the limitations period was tolled, the charge was untimely. As\\nthe district court opined, Caycho did not act with due diligence in filing his\\ncharge with the EEOC. We agree with the district court that Caycho filed an\\nuntimely charge of discrimination and thus, failed to properly exhaust his\\nadministrative remedies. 5\\n IV. CONCLUSION\\n For the above reasons, the district court’s judgment is AFFIRMED. 6\\n\\n\\n 5 Caycho also argues that the futile administrative process at the TWC excused the\\nrequirement to exhaust his administrative remedies. Caycho has not shown that TWC’s\\nadministrative process was futile. Similarly, although the record shows that the EEOC’s\\nadministrative process was delayed, Caycho has not shown that it was futile.\\n 6 We note that T.B.B. Printing defends the district court’s denial of Caycho’s motion\\n\\nfor appointment of counsel. We need not address whether the district court erred in denying\\nthe motion for appointment of counsel because even under a liberal interpretation of Caycho’s\\nbrief, he has failed to raise the issue. Because this issue was inadequately briefed, it is\\nforfeited. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).\\n\\n 11\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4415513/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"BENAVIDES"},"judge2":{"kind":"string","value":"HAYNES"},"judge3":{"kind":"string","value":"WILLETT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"BENAVIDES\": \", Circuit\", \"HAYNES\": \", Circuit\", \"WILLETT\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4638260/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Jose Caycho Melgar v. T.B. Butler Publishing Compa\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 18-41080 July 3, 2019\n Summary Calendar\n Lyle W. Cayce\n Clerk\nJOSE CARLOS CAYCHO MELGAR,\n\n Plaintiff - Appellant\n\nv.\n\nT.B. BUTLER PUBLISHING COMPANY, INCORPORATED; T.B.B.\nPRINTING LIMITED; NELSON CLYDE, IV,\n\n Defendants - Appellees\n\n\n\n\n Appeal from the United States District Court\n for the Eastern District of Texas\n\n\nBefore BENAVIDES, HAYNES, and WILLETT, Circuit Judges.\nPER CURIAM:\n Plaintiff-Appellant Jose Carlos Caycho Melgar (“Caycho”), 1 proceeding\nin forma pauperis, appeals the district court’s grant of summary judgment in\nfavor of his employer on his claims of discrimination based on age, disability,\nand national origin. The district court held that Caycho had filed an untimely\ncharge of discrimination and thus failed to properly exhaust his administrative\n\n\n\n 1 The Defendants-Appellees refer to Caycho as “Melgar.” Additionally, the record\ndemonstrates that Caycho also sometimes uses the last name “Valencia.” Because the\nPlaintiff-Appellant refers to himself as “Caycho” in his appellate brief before us, we will refer\nto him as “Caycho.”\n\f No. 18-41080\nremedies prior to seeking relief in federal court. Finding no reversible error,\nwe AFFIRM.\n I. FACTUAL AND PROCEDURAL HISTORY\n Caycho was employed by T.B.B. Printing, Ltd., a subsidiary of T.B.\nPublishing Company, Inc., (referred to collectively as “T.B.B. Printing”) from\nSeptember 2011 to December 2013. After Caycho left T.B.B. Printing, he filled\nout an intake questionnaire with the Texas Workforce Commission (“TWC”).\nOn that form, Caycho checked the boxes for retaliation and discrimination\nbased on national origin. Although that form is not dated, there are emails in\nthe record between Caycho and Hector Macias, a TWC Intake Investigator.\nThe emails state that the form was emailed on June 30, 2014. There are\nseveral emails in which Macias unsuccessfully attempts to obtain information\nfrom Caycho. An email dated August 11, 2014, from Macias’s supervisor\n(Walter Bryan) to Caycho states as follows: “It is impossible to understand\nyour written response to Mr. Macias’ request that you provide a number where\nwe can speak with you. We have transferred this complaint out of an\nabundance of caution for the statute of limitations.” Additionally, the TWC\nsent Caycho a form letter dated August 15, 2014, notifying him that his\ncomplaint was untimely for TWC, which had a 180-day deadline. The letter\nfurther provided that the complaint was within the 300-day deadline for the\nEqual Employment Opportunity Commission (EEOC) and that TWC had\nforwarded the complaint to the EEOC for investigation.\n On September 23, 2014, the EEOC sent Caycho a letter stating that it\nwould review his “correspondence concerning allegations of possible\nemployment discrimination.” The letter provided an EEOC inquiry number\nfor the case and informed Caycho that it could take between 90 and 120 days\nbefore he would be contacted by the EEOC and that any additional information\nfrom him had to be in writing.\n 2\n\f No. 18-41080\n On October 1, 2014, the EEOC sent Caycho a letter informing him that\nhe would receive a phone call at 10:15 am on October 22, 2014, and that the\ninterview should not take more than an hour. The letter also stated that a\ncharge had not been filed at this time and that the “EEOC do[es] apologize for\nthe long delay in assessing [his] inquiry.” It also instructed him to have any\ndocuments or evidence in support of his claims available during the interview\nand that the investigatory would provide him a preliminary assessment of his\nallegations and options going forward.\n More than eight months later, on June 12, 2015, the EEOC sent a letter\nto the Human Resources Department of T.B.B. Printing informing the\ncompany that a party had filed a charge of employment discrimination against\nit. The letter further provided that although the EEOC had not timely served\nthe company, it intended to investigate the claim and that the delay in serving\nthe charge “occurred through no fault of the Charging Party.” Additionally, it\nprovided that the company would be receiving a formal charge of\ndiscrimination within 60 days.\n On July 17, 2015, Monica Fernandez (“Fernandez”), an EEOC\ninvestigator assigned to Caycho’s case, sent him a letter instructing him to\nread, sign, and date the attached form (EEOC Form 5) and return it to her “no\nlater than close of business, August 4, 2015.” The letter informed Caycho that\nthe EEOC found that his evidence “does not substantiate a violation under the\nlaws enforced by this agency,” that the EEOC will issue a dismissal and that\nCaycho had 90 days from the date of his receipt of the Dismissal Notice to file\nsuit in court.\n On August 20, 2015, Fernandez sent Caycho another letter instructing\nhim to read, sign and date the attached charge of discrimination (EEOC Form\n5) and return it to the EEOC “no later than close of business, September 8,\n2015.” The letter also stated that per his request the “name of the joint\n 3\n\f No. 18-41080\ncompany ha[d] been added to your charge of discrimination” and that there\nwere “two additional blank pages for you to add additional issues to your\ncharge.” It again informed Caycho that the EEOC found that his evidence\n“does not substantiate a violation under the laws enforced by this agency,” that\nthe EEOC will issue a dismissal and that Caycho had 90 days from the date of\nhis receipt of the Dismissal Notice to file suit in federal district court.\n Subsequently, on November 11, 2015, Fernandez emailed Caycho the\nfollowing: “Can you please call me before December 17, 2015? I haven’t been\nable to proceed with your charge, since you have not signed it yet. Please find\nthe charge of discrimination attached for your signature.” The email also\nnotified him that if he did not respond by December 17, 2015, his charge would\nbe dismissed.\n On December 16, 2015, the EEOC received Caycho’s signed and dated\n(December 15, 2015) EEOC Form 5 Charge of Discrimination. On January 26,\n2016, the EEOC issued a Dismissal and Notice of Rights to Caycho. The notice\nprovided that the EEOC had been unable to conclude that the information\nobtained from him established any violations of the statutes and that he had\n90 days to file suit in state or federal court. On April 20, 2016, Caycho,\nproceeding pro se, filed the instant employment discrimination suit in federal\ndistrict court. The complaint listed the defendants as T.B. Butler Publishing\nCompany Inc., T.B.B. Printing Ltd., Nelson Clyde IV (“Clyde”), and three\nunknown FBI agents. 2 The T.B.B. Printing defendants filed a motion to\ndismiss for failure to state a claim. Clyde also filed a motion to dismiss for\nfailure to state a claim.\n\n\n\n\n 2Clyde, who was president of T.B. Butler Publishing Company, and the three\nunknown FBI agents are not party to the instant appeal.\n 4\n\f No. 18-41080\n The magistrate judge issued a report and recommendation that Clyde’s\nmotion to dismiss be granted because although he was an officer at the\ncompany, he was not Caycho’s employer. With respect to the claims against\nT.B.B. Printing, the magistrate judge opined that Caycho’s “pleadings do not\nallege any facts that would support a claim pursuant to 42 U.S.C. § 1985, the\nLilly Ledbetter Fair Pay Act of 2009, 42 U.S.C. § 1981, 42 U.S.C. § 1982, 42\nU.S.C. § 1983 and 42 U.S.C. § 1986.” Thus, it recommended that those claims\nbe dismissed for failure to state a claim. However, the magistrate judge\nrecommended that the motion to dismiss the remaining claims of\ndiscrimination based upon age, disability and national origin be denied. After\na de novo review, the district court adopted the report and recommendation.\n The parties consented to proceed before the magistrate judge pursuant\nto 28 U.S.C. § 636(c). T.B.B. Printing subsequently filed a motion for summary\njudgment as to the remaining claims, arguing that Caycho’s claims were\nbarred for failure to exhaust his administrative remedies because Caycho\nfailed to timely file a charge of discrimination with the EEOC within the 300-\nday deadline. The district court agreed and stated that because Caycho “filed\nan untimely charge of discrimination nearly two years after his employment\nwas terminated . . . he failed to exhaust his administrative remedies.” The\ncourt also rejected Caycho’s contention that he was entitled to equitable tolling\nto excuse the delayed filing of the charge of discrimination. Thus, the court\ngranted T.B.B. Printing’s motion for summary judgment. Caycho timely filed\na notice of appeal.\n II. STANDARD OF REVIEW\n We review a grant of summary judgment de novo, applying the same\nstandards as the district court. Am. Home Assurance Co. v. United Space\nAlliance, LLC, 378 F.3d 482, 486 (5th Cir. 2004). “A summary judgment\nmotion is properly granted only when, viewing the evidence in the light most\n 5\n\f No. 18-41080\nfavorable to the nonmoving party, the record indicates that there is no genuine\nissue as to any material fact, and that the moving party is entitled to judgment\nas a matter of law.” Id.; see also FED. R. CIV. P. 56(a).\n III. ANALYSIS\n A. Sufficiency of the Charge of Discrimination\n Caycho argues that the district court erred in holding that he filed an\nuntimely charge of discrimination, which resulted in his failure to properly\nexhaust his administrative remedies. To bring a suit under Title VII, the ADA\n(disability), or the ADEA (age), a complainant must file a charge of\ndiscrimination with the EEOC to exhaust his administrative remedies. Price\nv. Southwestern Bell Telephone Co., 687 F.2d 74, 77 (5th Cir. 1982) (Title VII);\nDao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996) (recognizing that\nthe ADA incorporates by reference Title VII’s administrative procedures);\nFoster v. Nat’l Bank of Bossier City, 857 F.2d 1058, 1060 (5th Cir. 1988)\n(ADEA). 3\n Caycho’s principal argument is that the intake questionnaire he\nsubmitted to the TWC suffices as a charge of discrimination for the EEOC.\nCaycho is correct that if his TWC intake questionnaire constitutes a charge of\ndiscrimination, it was timely filed “within three hundred days after the alleged\nunlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1) (stating\n\n\n 3Caycho contends that the defendants forfeited the affirmative defense of his failure\nto exhaust his administrative remedies because they did not timely raise the defense. On\nSeptember 26, 2017, the district court ordered T.B.B. Printing to answer Caycho’s claims of\ndiscrimination based on age, disability and national origin within 30 days. On October 25,\n2017, T.B.B. Printing complied with the order and filed its original answer to Caycho’s first\namended complaint. This original answer raised the defense that Caycho’s discrimination\nclaims were barred based on his failure to timely file a charge with the EEOC. Caycho\nmistakenly refers to the defendants’ original answer as their “third amended answer.” The\ndefendants had previously filed a motion to dismiss pursuant to Federal Rule of Civil\nProcedure 12(b)(6); however, a “Rule 12(b)(6) motion is not a ‘responsive pleading.’”\nMcKinney v. Irving Indep. Sch. Dist., 309 F.3d 308, 315 (5th Cir. 2002) (citation omitted).\nAccordingly, Caycho has failed to show that the defendants untimely raised this defense.\n 6\n\f No. 18-41080\nthat if complainant first pursues state or local remedies, the charge must be\nfiled with the EEOC within 300 days of the alleged unlawful employment\npractice). The latest allegations of discrimination on the intake questionnaire\nare in December of 2013, and although the questionnaire was not dated, the\nemail conversation in the record indicates that the form was sent on June 30,\n2014.\n We must determine whether the TWC intake questionnaire sufficed as a\ncharge of discrimination with the EEOC. When analyzing whether a plaintiff\nhas exhausted a claim, this Court has noted that “the scope of an EEOC\ncomplaint should be construed liberally.” Pacheco v. Mineta, 448 F.3d 783, 788\n(5th Cir. 2006). “On the other hand, a primary purpose of Title VII is to trigger\nthe investigatory and conciliatory procedures of the EEOC, in attempt to\nachieve non-judicial resolution of employment discrimination claims.” Id. at\n788–89. In light of these considerations, we interpret “what is properly\nembraced in review of a Title–VII claim somewhat broadly, not solely by the\nscope of the administrative charge itself, but by the scope of the EEOC\ninvestigation which can reasonably be expected to grow out of the charge of\ndiscrimination.” Id. at 789. The charge should allege that the employer\nengaged in an unlawful employment practice. 42 U.S.C. § 2000e-5(b). This\nCourt has explained that “the crucial element of a charge of discrimination is\nthe factual statement contained therein.” Price, 687 F.2d at 78 (quoting\nSanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970)).\n In Price, we found there was a fact issue as to whether the charge was\nsufficient. 687 F.2d at 78-79. We pointed out that there was no evidence that\nthe complainant had been informed that the charge was inadequate. Id. at 79.\nThus, we concluded that “it would not be unreasonable for Price, unschooled in\nthe law and without the aid of counsel, to take no further action during the\nlimitations period in the belief that she had done that which was required of\n 7\n\f No. 18-41080\nher.” Id. at 79. Like the complainant in Price, Caycho is proceeding pro se.\nHowever, unlike in Price, Caycho’s intake questionnaire was not treated as a\ncharge of discrimination. Indeed, the TWC expressly informed him that it had\nbeen “unable to draft a charge on your behalf.” Thus, in the instant case, it\nwould have been unreasonable for Caycho to believe the intake questionnaire\nsufficed as a charge. The regulations require a “clear and concise statement of\nthe facts, including pertinent dates, constituting the alleged unlawful\nemployment practices.” 29 C.F.R. § 1601.12(a)(3). The intake questionnaire\ndoes not contain a clear and concise statement of facts alleging unlawful\nemployment practices. We agree with the district court that under these\ncircumstances the intake questionnaire does not suffice as a charge of\ndiscrimination. 4\n B. Equitable Tolling\n Caycho contends that the district court erred in refusing to apply the\ndoctrine of equitable tolling. The “limitations period on filing a charge of\nemployment discrimination is subject to equitable doctrines such as tolling or\nestoppel.” Manning v. Chevron Chemical Co., 332 F.3d 874, 880 (5th Cir. 2003)\n(internal quotation marks and citations omitted); 29 C.F.R. § 1614.604(c). As\nthe plaintiff, Caycho bears the burden of demonstrating the basis for tolling\nthe limitations period. Wilson v. Sec’y, Dep’t of Veterans Affairs, 65 F.3d 402,\n404 (5th Cir. 1995). This Court reviews a district court’s decision to deny\nequitable tolling for abuse of discretion. Teemac v. Henderson, 298 F.3d 452,\n\n\n\n\n 4 We note that Caycho had not signed the intake questionnaire. However, such a\ndefect is not fatal in that the regulations allow technical defects to be cured by filing an\namended charge, and the amended charge would relate back to the date the charge was first\nreceived. 29 C.F.R. §1601.12(b). We further note that the TWC treated Caycho’s filing as\nuntimely; however, whether the complaint was timely filed with the TWC has no effect on\nthe 300-day filing period for the EEOC charge. Griffin v. City of Dallas, 26 F.3d 610, 612\n(5th Cir. 1994).\n 8\n\f No. 18-41080\n457 (5th Cir. 2002). We have opined that equitable tolling can excuse an\nuntimely filing in the following circumstances: “(1) the pendency of a suit\nbetween the same parties in the wrong forum; (2) plaintiff’s unawareness of\nthe facts giving rise to the claim because of the defendant’s intentional\nconcealment of them; and (3) the EEOC’s misleading the plaintiff about the\nnature of her rights.” Id. (citation omitted).\n With respect to the first basis for tolling, Caycho asserts that TWC had\njurisdiction over his claim and that the EEOC was the wrong forum. This\nassertion is without merit. We have explained that “equitable tolling is\nappropriate in the rare case when the parties have been litigating an action in\nstate court, but they later discover that they chose the wrong forum under state\nlaw.” Manning, 332 F.3d at 880. The parties at bar were not litigating in state\ncourt. Moreover, the EEOC was the proper forum because to bring suit under\nTitle VII, a complainant must first file a charge with the EEOC to exhaust his\nadministrative remedies. Price, 687 F.2d at 77. This argument does not\nprovide a justification for applying equitable tolling to the limitations period.\n With respect to the second basis for tolling previously set forth, Caycho\ncontends that, from August to December of 2013, T.B.B. Printing “concealed”\nits actions and the actions of law enforcement agents. It appears the law\nenforcement agents he refers to in his brief are the “unknown agents of the\nFBI” listed as defendants in his complaint filed in district court. It is unclear\nwhat actions were allegedly concealed. In any event, if the actions were\nconcealed from August to December of 2013, any alleged concealment would\nhave had no effect on the limitations period which began to run after December\n31, 2013. Caycho has not shown that equitable tolling is justified under the\nsecond basis.\n As for the third basis, Caycho asserts that the EEOC misled him when\nit informed him that “‘allegation accepted only up to August 20, 2014,’ that led\n 9\n\f No. 18-41080\nto the untimely formulat[ion] of a charge.” Brief at 43. “We apply equitable\ntolling when an employee seeks information from the EEOC, and the\norganization gives the individual incorrect information that leads the\nindividual to file an untimely charge.” Manning, 332 F.3d at 881. It is unclear\nhow the EEOC allegedly misled him. Caycho has not shown that equitable\ntolling is justified under the third basis.\n Nonetheless, we have opined that there may be other bases that warrant\nequitable tolling. Hood v. Sears Roebuck & Co., 166 F.3d 231, 232 (5th Cir.\n1999). Caycho also contends that the “time elapsed due to the administrative\noffice’s inaction deserved to stop the running of the statute of limitations.”\nBrief at 25.\n Here, the district court concluded that Caycho was responsible for the\nentire delay in filing the EEOC charge. The delay was from December 31, 2013\nto December 15, 2015. Viewing the record in the light most favorable to\nCaycho, the nonmoving party, we must disagree with the conclusion that\nCaycho was responsible for the entire delay. As indicated previously, on\nSeptember 23, 2014, the EEOC sent Caycho a letter stating that it would\nreview his “correspondence concerning allegations of possible employment\ndiscrimination.” The letter also informed Caycho that it could take between\n90 and 120 days before he would be contacted by the EEOC. At that point, we\nbelieve “it would not be unreasonable for [Caycho], unschooled in the law and\nwithout the aid of counsel, to take no further action during the limitations\nperiod in the belief that [he] had done that which was required of [him].” Price,\n687 F.2d at 79. The EEOC certainly believed that was the case. In a June 12,\n2015 letter, the EEOC informed T.B.B. Printing that a party had alleged\nemployment discrimination against it. The letter further provided that\nalthough the EEOC had not timely served the company, the delay in serving\nthe charge “occurred through no fault of the Charging Party.” Thus, the EEOC\n 10\n\f No. 18-41080\nexplicitly stated that the delay was not Caycho’s fault. Viewing the evidence\nin the light most favorable to Caycho, we will not attribute the delay starting\nfrom the September 23, 2014 EEOC letter to Caycho. Cf. McKee v. McDonnell\nDouglas Tech. Serv., 700 F.2d 260, 264 (5th Cir. 1983) (explaining that a\n“complainant is not to be prejudiced by the EEOC’s failure to fulfill its duty”).\n Subsequently, however, in a letter dated July 17, 2015, the EEOC\ninformed Caycho that he was to read, sign, and date the attached form and\nreturn it to the EEOC “no later than close of business, August 4, 2015.”\nAccordingly, on August 4, 2015, the limitations period began to run again. In\nother words, any delay after August 4, 2015, in filing the charge is attributed\nto Caycho. The periods of delay attributable to Caycho are from December 31,\n2013 to September 23, 2014 (38 weeks) and August 4, 2015 to December 15,\n2015 (19 weeks). Our calculation is that 399 days are attributable to Caycho.\nThe deadline to file was within 300 days. Assuming arguendo for purposes of\nthis appeal that the limitations period was tolled, the charge was untimely. As\nthe district court opined, Caycho did not act with due diligence in filing his\ncharge with the EEOC. We agree with the district court that Caycho filed an\nuntimely charge of discrimination and thus, failed to properly exhaust his\nadministrative remedies. 5\n IV. CONCLUSION\n For the above reasons, the district court’s judgment is AFFIRMED. 6\n\n\n 5 Caycho also argues that the futile administrative process at the TWC excused the\nrequirement to exhaust his administrative remedies. Caycho has not shown that TWC’s\nadministrative process was futile. Similarly, although the record shows that the EEOC’s\nadministrative process was delayed, Caycho has not shown that it was futile.\n 6 We note that T.B.B. Printing defends the district court’s denial of Caycho’s motion\n\nfor appointment of counsel. We need not address whether the district court erred in denying\nthe motion for appointment of counsel because even under a liberal interpretation of Caycho’s\nbrief, he has failed to raise the issue. Because this issue was inadequately briefed, it is\nforfeited. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).\n\n 11\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Jose Caycho Melgar v. T.B. Butler Publishing Compa\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-10\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nIN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-41080 July 3, 2019\\n Summary Calendar\\n Lyle W. Cayce\\n Clerk\\nJOSE CARLOS CAYCHO MELGAR,\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nT.B. BUTLER PUBLISHING COMPANY, INCORPORATED; T.B.B.\\nPRINTING LIMITED; NELSON CLYDE, IV,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Texas\\n\\n\\nBefore BENAVIDES, HAYNES, and WILLETT, Circuit Judges.\\nPER CURIAM:\\n Plaintiff-Appellant Jose Carlos Caycho Melgar (“Caycho”), 1 proceeding\\nin forma pauperis, appeals the district court’s grant of summary judgment in\\nfavor of his employer on his claims of discrimination based on age, disability,\\nand national origin. The district court held that Caycho had filed an untimely\\ncharge of discrimination and thus failed to properly exhaust his administrative\\n\\n\\n\\n 1 The Defendants-Appellees refer to Caycho as “Melgar.” Additionally, the record\\ndemonstrates that Caycho also sometimes uses the last name “Valencia.” Because the\\nPlaintiff-Appellant refers to himself as “Caycho” in his appellate brief before us, we will refer\\nto him as “Caycho.”\\n\\f No. 18-41080\\nremedies prior to seeking relief in federal court. Finding no reversible error,\\nwe AFFIRM.\\n I. FACTUAL AND PROCEDURAL HISTORY\\n Caycho was employed by T.B.B. Printing, Ltd., a subsidiary of T.B.\\nPublishing Company, Inc., (referred to collectively as “T.B.B. Printing”) from\\nSeptember 2011 to December 2013. After Caycho left T.B.B. Printing, he filled\\nout an intake questionnaire with the Texas Workforce Commission (“TWC”).\\nOn that form, Caycho checked the boxes for retaliation and discrimination\\nbased on national origin. Although that form is not dated, there are emails in\\nthe record between Caycho and Hector Macias, a TWC Intake Investigator.\\nThe emails state that the form was emailed on June 30, 2014. There are\\nseveral emails in which Macias unsuccessfully attempts to obtain information\\nfrom Caycho. An email dated August 11, 2014, from Macias’s supervisor\\n(Walter Bryan) to Caycho states as follows: “It is impossible to understand\\nyour written response to Mr. Macias’ request that you provide a number where\\nwe can speak with you. We have transferred this complaint out of an\\nabundance of caution for the statute of limitations.” Additionally, the TWC\\nsent Caycho a form letter dated August 15, 2014, notifying him that his\\ncomplaint was untimely for TWC, which had a 180-day deadline. The letter\\nfurther provided that the complaint was within the 300-day deadline for the\\nEqual Employment Opportunity Commission (EEOC) and that TWC had\\nforwarded the complaint to the EEOC for investigation.\\n On September 23, 2014, the EEOC sent Caycho a letter stating that it\\nwould review his “correspondence concerning allegations of possible\\nemployment discrimination.” The letter provided an EEOC inquiry number\\nfor the case and informed Caycho that it could take between 90 and 120 days\\nbefore he would be contacted by the EEOC and that any additional information\\nfrom him had to be in writing.\\n 2\\n\\f No. 18-41080\\n On October 1, 2014, the EEOC sent Caycho a letter informing him that\\nhe would receive a phone call at 10:15 am on October 22, 2014, and that the\\ninterview should not take more than an hour. The letter also stated that a\\ncharge had not been filed at this time and that the “EEOC do[es] apologize for\\nthe long delay in assessing [his] inquiry.” It also instructed him to have any\\ndocuments or evidence in support of his claims available during the interview\\nand that the investigatory would provide him a preliminary assessment of his\\nallegations and options going forward.\\n More than eight months later, on June 12, 2015, the EEOC sent a letter\\nto the Human Resources Department of T.B.B. Printing informing the\\ncompany that a party had filed a charge of employment discrimination against\\nit. The letter further provided that although the EEOC had not timely served\\nthe company, it intended to investigate the claim and that the delay in serving\\nthe charge “occurred through no fault of the Charging Party.” Additionally, it\\nprovided that the company would be receiving a formal charge of\\ndiscrimination within 60 days.\\n On July 17, 2015, Monica Fernandez (“Fernandez”), an EEOC\\ninvestigator assigned to Caycho’s case, sent him a letter instructing him to\\nread, sign, and date the attached form (EEOC Form 5) and return it to her “no\\nlater than close of business, August 4, 2015.” The letter informed Caycho that\\nthe EEOC found that his evidence “does not substantiate a violation under the\\nlaws enforced by this agency,” that the EEOC will issue a dismissal and that\\nCaycho had 90 days from the date of his receipt of the Dismissal Notice to file\\nsuit in court.\\n On August 20, 2015, Fernandez sent Caycho another letter instructing\\nhim to read, sign and date the attached charge of discrimination (EEOC Form\\n5) and return it to the EEOC “no later than close of business, September 8,\\n2015.” The letter also stated that per his request the “name of the joint\\n 3\\n\\f No. 18-41080\\ncompany ha[d] been added to your charge of discrimination” and that there\\nwere “two additional blank pages for you to add additional issues to your\\ncharge.” It again informed Caycho that the EEOC found that his evidence\\n“does not substantiate a violation under the laws enforced by this agency,” that\\nthe EEOC will issue a dismissal and that Caycho had 90 days from the date of\\nhis receipt of the Dismissal Notice to file suit in federal district court.\\n Subsequently, on November 11, 2015, Fernandez emailed Caycho the\\nfollowing: “Can you please call me before December 17, 2015? I haven’t been\\nable to proceed with your charge, since you have not signed it yet. Please find\\nthe charge of discrimination attached for your signature.” The email also\\nnotified him that if he did not respond by December 17, 2015, his charge would\\nbe dismissed.\\n On December 16, 2015, the EEOC received Caycho’s signed and dated\\n(December 15, 2015) EEOC Form 5 Charge of Discrimination. On January 26,\\n2016, the EEOC issued a Dismissal and Notice of Rights to Caycho. The notice\\nprovided that the EEOC had been unable to conclude that the information\\nobtained from him established any violations of the statutes and that he had\\n90 days to file suit in state or federal court. On April 20, 2016, Caycho,\\nproceeding pro se, filed the instant employment discrimination suit in federal\\ndistrict court. The complaint listed the defendants as T.B. Butler Publishing\\nCompany Inc., T.B.B. Printing Ltd., Nelson Clyde IV (“Clyde”), and three\\nunknown FBI agents. 2 The T.B.B. Printing defendants filed a motion to\\ndismiss for failure to state a claim. Clyde also filed a motion to dismiss for\\nfailure to state a claim.\\n\\n\\n\\n\\n 2Clyde, who was president of T.B. Butler Publishing Company, and the three\\nunknown FBI agents are not party to the instant appeal.\\n 4\\n\\f No. 18-41080\\n The magistrate judge issued a report and recommendation that Clyde’s\\nmotion to dismiss be granted because although he was an officer at the\\ncompany, he was not Caycho’s employer. With respect to the claims against\\nT.B.B. Printing, the magistrate judge opined that Caycho’s “pleadings do not\\nallege any facts that would support a claim pursuant to 42 U.S.C. § 1985, the\\nLilly Ledbetter Fair Pay Act of 2009, 42 U.S.C. § 1981, 42 U.S.C. § 1982, 42\\nU.S.C. § 1983 and 42 U.S.C. § 1986.” Thus, it recommended that those claims\\nbe dismissed for failure to state a claim. However, the magistrate judge\\nrecommended that the motion to dismiss the remaining claims of\\ndiscrimination based upon age, disability and national origin be denied. After\\na de novo review, the district court adopted the report and recommendation.\\n The parties consented to proceed before the magistrate judge pursuant\\nto 28 U.S.C. § 636(c). T.B.B. Printing subsequently filed a motion for summary\\njudgment as to the remaining claims, arguing that Caycho’s claims were\\nbarred for failure to exhaust his administrative remedies because Caycho\\nfailed to timely file a charge of discrimination with the EEOC within the 300-\\nday deadline. The district court agreed and stated that because Caycho “filed\\nan untimely charge of discrimination nearly two years after his employment\\nwas terminated . . . he failed to exhaust his administrative remedies.” The\\ncourt also rejected Caycho’s contention that he was entitled to equitable tolling\\nto excuse the delayed filing of the charge of discrimination. Thus, the court\\ngranted T.B.B. Printing’s motion for summary judgment. Caycho timely filed\\na notice of appeal.\\n II. STANDARD OF REVIEW\\n We review a grant of summary judgment de novo, applying the same\\nstandards as the district court. Am. Home Assurance Co. v. United Space\\nAlliance, LLC, 378 F.3d 482, 486 (5th Cir. 2004). “A summary judgment\\nmotion is properly granted only when, viewing the evidence in the light most\\n 5\\n\\f No. 18-41080\\nfavorable to the nonmoving party, the record indicates that there is no genuine\\nissue as to any material fact, and that the moving party is entitled to judgment\\nas a matter of law.” Id.; see also FED. R. CIV. P. 56(a).\\n III. ANALYSIS\\n A. Sufficiency of the Charge of Discrimination\\n Caycho argues that the district court erred in holding that he filed an\\nuntimely charge of discrimination, which resulted in his failure to properly\\nexhaust his administrative remedies. To bring a suit under Title VII, the ADA\\n(disability), or the ADEA (age), a complainant must file a charge of\\ndiscrimination with the EEOC to exhaust his administrative remedies. Price\\nv. Southwestern Bell Telephone Co., 687 F.2d 74, 77 (5th Cir. 1982) (Title VII);\\nDao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996) (recognizing that\\nthe ADA incorporates by reference Title VII’s administrative procedures);\\nFoster v. Nat’l Bank of Bossier City, 857 F.2d 1058, 1060 (5th Cir. 1988)\\n(ADEA). 3\\n Caycho’s principal argument is that the intake questionnaire he\\nsubmitted to the TWC suffices as a charge of discrimination for the EEOC.\\nCaycho is correct that if his TWC intake questionnaire constitutes a charge of\\ndiscrimination, it was timely filed “within three hundred days after the alleged\\nunlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1) (stating\\n\\n\\n 3Caycho contends that the defendants forfeited the affirmative defense of his failure\\nto exhaust his administrative remedies because they did not timely raise the defense. On\\nSeptember 26, 2017, the district court ordered T.B.B. Printing to answer Caycho’s claims of\\ndiscrimination based on age, disability and national origin within 30 days. On October 25,\\n2017, T.B.B. Printing complied with the order and filed its original answer to Caycho’s first\\namended complaint. This original answer raised the defense that Caycho’s discrimination\\nclaims were barred based on his failure to timely file a charge with the EEOC. Caycho\\nmistakenly refers to the defendants’ original answer as their “third amended answer.” The\\ndefendants had previously filed a motion to dismiss pursuant to Federal Rule of Civil\\nProcedure 12(b)(6); however, a “Rule 12(b)(6) motion is not a ‘responsive pleading.’”\\nMcKinney v. Irving Indep. Sch. Dist., 309 F.3d 308, 315 (5th Cir. 2002) (citation omitted).\\nAccordingly, Caycho has failed to show that the defendants untimely raised this defense.\\n 6\\n\\f No. 18-41080\\nthat if complainant first pursues state or local remedies, the charge must be\\nfiled with the EEOC within 300 days of the alleged unlawful employment\\npractice). The latest allegations of discrimination on the intake questionnaire\\nare in December of 2013, and although the questionnaire was not dated, the\\nemail conversation in the record indicates that the form was sent on June 30,\\n2014.\\n We must determine whether the TWC intake questionnaire sufficed as a\\ncharge of discrimination with the EEOC. When analyzing whether a plaintiff\\nhas exhausted a claim, this Court has noted that “the scope of an EEOC\\ncomplaint should be construed liberally.” Pacheco v. Mineta, 448 F.3d 783, 788\\n(5th Cir. 2006). “On the other hand, a primary purpose of Title VII is to trigger\\nthe investigatory and conciliatory procedures of the EEOC, in attempt to\\nachieve non-judicial resolution of employment discrimination claims.” Id. at\\n788–89. In light of these considerations, we interpret “what is properly\\nembraced in review of a Title–VII claim somewhat broadly, not solely by the\\nscope of the administrative charge itself, but by the scope of the EEOC\\ninvestigation which can reasonably be expected to grow out of the charge of\\ndiscrimination.” Id. at 789. The charge should allege that the employer\\nengaged in an unlawful employment practice. 42 U.S.C. § 2000e-5(b). This\\nCourt has explained that “the crucial element of a charge of discrimination is\\nthe factual statement contained therein.” Price, 687 F.2d at 78 (quoting\\nSanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970)).\\n In Price, we found there was a fact issue as to whether the charge was\\nsufficient. 687 F.2d at 78-79. We pointed out that there was no evidence that\\nthe complainant had been informed that the charge was inadequate. Id. at 79.\\nThus, we concluded that “it would not be unreasonable for Price, unschooled in\\nthe law and without the aid of counsel, to take no further action during the\\nlimitations period in the belief that she had done that which was required of\\n 7\\n\\f No. 18-41080\\nher.” Id. at 79. Like the complainant in Price, Caycho is proceeding pro se.\\nHowever, unlike in Price, Caycho’s intake questionnaire was not treated as a\\ncharge of discrimination. Indeed, the TWC expressly informed him that it had\\nbeen “unable to draft a charge on your behalf.” Thus, in the instant case, it\\nwould have been unreasonable for Caycho to believe the intake questionnaire\\nsufficed as a charge. The regulations require a “clear and concise statement of\\nthe facts, including pertinent dates, constituting the alleged unlawful\\nemployment practices.” 29 C.F.R. § 1601.12(a)(3). The intake questionnaire\\ndoes not contain a clear and concise statement of facts alleging unlawful\\nemployment practices. We agree with the district court that under these\\ncircumstances the intake questionnaire does not suffice as a charge of\\ndiscrimination. 4\\n B. Equitable Tolling\\n Caycho contends that the district court erred in refusing to apply the\\ndoctrine of equitable tolling. The “limitations period on filing a charge of\\nemployment discrimination is subject to equitable doctrines such as tolling or\\nestoppel.” Manning v. Chevron Chemical Co., 332 F.3d 874, 880 (5th Cir. 2003)\\n(internal quotation marks and citations omitted); 29 C.F.R. § 1614.604(c). As\\nthe plaintiff, Caycho bears the burden of demonstrating the basis for tolling\\nthe limitations period. Wilson v. Sec’y, Dep’t of Veterans Affairs, 65 F.3d 402,\\n404 (5th Cir. 1995). This Court reviews a district court’s decision to deny\\nequitable tolling for abuse of discretion. Teemac v. Henderson, 298 F.3d 452,\\n\\n\\n\\n\\n 4 We note that Caycho had not signed the intake questionnaire. However, such a\\ndefect is not fatal in that the regulations allow technical defects to be cured by filing an\\namended charge, and the amended charge would relate back to the date the charge was first\\nreceived. 29 C.F.R. §1601.12(b). We further note that the TWC treated Caycho’s filing as\\nuntimely; however, whether the complaint was timely filed with the TWC has no effect on\\nthe 300-day filing period for the EEOC charge. Griffin v. City of Dallas, 26 F.3d 610, 612\\n(5th Cir. 1994).\\n 8\\n\\f No. 18-41080\\n457 (5th Cir. 2002). We have opined that equitable tolling can excuse an\\nuntimely filing in the following circumstances: “(1) the pendency of a suit\\nbetween the same parties in the wrong forum; (2) plaintiff’s unawareness of\\nthe facts giving rise to the claim because of the defendant’s intentional\\nconcealment of them; and (3) the EEOC’s misleading the plaintiff about the\\nnature of her rights.” Id. (citation omitted).\\n With respect to the first basis for tolling, Caycho asserts that TWC had\\njurisdiction over his claim and that the EEOC was the wrong forum. This\\nassertion is without merit. We have explained that “equitable tolling is\\nappropriate in the rare case when the parties have been litigating an action in\\nstate court, but they later discover that they chose the wrong forum under state\\nlaw.” Manning, 332 F.3d at 880. The parties at bar were not litigating in state\\ncourt. Moreover, the EEOC was the proper forum because to bring suit under\\nTitle VII, a complainant must first file a charge with the EEOC to exhaust his\\nadministrative remedies. Price, 687 F.2d at 77. This argument does not\\nprovide a justification for applying equitable tolling to the limitations period.\\n With respect to the second basis for tolling previously set forth, Caycho\\ncontends that, from August to December of 2013, T.B.B. Printing “concealed”\\nits actions and the actions of law enforcement agents. It appears the law\\nenforcement agents he refers to in his brief are the “unknown agents of the\\nFBI” listed as defendants in his complaint filed in district court. It is unclear\\nwhat actions were allegedly concealed. In any event, if the actions were\\nconcealed from August to December of 2013, any alleged concealment would\\nhave had no effect on the limitations period which began to run after December\\n31, 2013. Caycho has not shown that equitable tolling is justified under the\\nsecond basis.\\n As for the third basis, Caycho asserts that the EEOC misled him when\\nit informed him that “‘allegation accepted only up to August 20, 2014,’ that led\\n 9\\n\\f No. 18-41080\\nto the untimely formulat[ion] of a charge.” Brief at 43. “We apply equitable\\ntolling when an employee seeks information from the EEOC, and the\\norganization gives the individual incorrect information that leads the\\nindividual to file an untimely charge.” Manning, 332 F.3d at 881. It is unclear\\nhow the EEOC allegedly misled him. Caycho has not shown that equitable\\ntolling is justified under the third basis.\\n Nonetheless, we have opined that there may be other bases that warrant\\nequitable tolling. Hood v. Sears Roebuck & Co., 166 F.3d 231, 232 (5th Cir.\\n1999). Caycho also contends that the “time elapsed due to the administrative\\noffice’s inaction deserved to stop the running of the statute of limitations.”\\nBrief at 25.\\n Here, the district court concluded that Caycho was responsible for the\\nentire delay in filing the EEOC charge. The delay was from December 31, 2013\\nto December 15, 2015. Viewing the record in the light most favorable to\\nCaycho, the nonmoving party, we must disagree with the conclusion that\\nCaycho was responsible for the entire delay. As indicated previously, on\\nSeptember 23, 2014, the EEOC sent Caycho a letter stating that it would\\nreview his “correspondence concerning allegations of possible employment\\ndiscrimination.” The letter also informed Caycho that it could take between\\n90 and 120 days before he would be contacted by the EEOC. At that point, we\\nbelieve “it would not be unreasonable for [Caycho], unschooled in the law and\\nwithout the aid of counsel, to take no further action during the limitations\\nperiod in the belief that [he] had done that which was required of [him].” Price,\\n687 F.2d at 79. The EEOC certainly believed that was the case. In a June 12,\\n2015 letter, the EEOC informed T.B.B. Printing that a party had alleged\\nemployment discrimination against it. The letter further provided that\\nalthough the EEOC had not timely served the company, the delay in serving\\nthe charge “occurred through no fault of the Charging Party.” Thus, the EEOC\\n 10\\n\\f No. 18-41080\\nexplicitly stated that the delay was not Caycho’s fault. Viewing the evidence\\nin the light most favorable to Caycho, we will not attribute the delay starting\\nfrom the September 23, 2014 EEOC letter to Caycho. Cf. McKee v. McDonnell\\nDouglas Tech. Serv., 700 F.2d 260, 264 (5th Cir. 1983) (explaining that a\\n“complainant is not to be prejudiced by the EEOC’s failure to fulfill its duty”).\\n Subsequently, however, in a letter dated July 17, 2015, the EEOC\\ninformed Caycho that he was to read, sign, and date the attached form and\\nreturn it to the EEOC “no later than close of business, August 4, 2015.”\\nAccordingly, on August 4, 2015, the limitations period began to run again. In\\nother words, any delay after August 4, 2015, in filing the charge is attributed\\nto Caycho. The periods of delay attributable to Caycho are from December 31,\\n2013 to September 23, 2014 (38 weeks) and August 4, 2015 to December 15,\\n2015 (19 weeks). Our calculation is that 399 days are attributable to Caycho.\\nThe deadline to file was within 300 days. Assuming arguendo for purposes of\\nthis appeal that the limitations period was tolled, the charge was untimely. As\\nthe district court opined, Caycho did not act with due diligence in filing his\\ncharge with the EEOC. We agree with the district court that Caycho filed an\\nuntimely charge of discrimination and thus, failed to properly exhaust his\\nadministrative remedies. 5\\n IV. CONCLUSION\\n For the above reasons, the district court’s judgment is AFFIRMED. 6\\n\\n\\n 5 Caycho also argues that the futile administrative process at the TWC excused the\\nrequirement to exhaust his administrative remedies. Caycho has not shown that TWC’s\\nadministrative process was futile. Similarly, although the record shows that the EEOC’s\\nadministrative process was delayed, Caycho has not shown that it was futile.\\n 6 We note that T.B.B. Printing defends the district court’s denial of Caycho’s motion\\n\\nfor appointment of counsel. We need not address whether the district court erred in denying\\nthe motion for appointment of counsel because even under a liberal interpretation of Caycho’s\\nbrief, he has failed to raise the issue. Because this issue was inadequately briefed, it is\\nforfeited. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).\\n\\n 11\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2993,"cells":{"id":{"kind":"number","value":4639521,"string":"4,639,521"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Richard Luke ELAM, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Richard Elam"},"decision_date":{"kind":"string","value":"2019-07-15"},"docket_number":{"kind":"string","value":"18-10276"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"JERRY E. SMITH, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-10276 Document: 00515033235 Page: 1 Date Filed: 07/15/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-10276 July 15, 2019\\n Lyle W. Cayce\\n Clerk\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff–Appellee,\\nversus\\n\\nRICHARD LUKE ELAM,\\n\\n Defendant–Appellant.\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\n\\n\\nBefore HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.\\nJERRY E. SMITH, Circuit Judge:\\n\\n After failing to appeal either his conviction or sentence, Richard Elam\\nmoved for a special discovery hearing concerning the adequacy of trial counsel’s\\nrepresentation. The district court denied the request and declined to recharac-\\nterize the discovery motion as a 28 U.S.C. § 2255 motion. Because the court\\nerred in failing to recharacterize, we vacate and remand.\\n\\n I.\\n In March 2016, Elam agreed to plead guilty of conspiracy to distribute\\nand possess with intent to distribute methamphetamine in violation of\\n\\f Case: 18-10276 Document: 00515033235 Page: 2 Date Filed: 07/15/2019\\n\\n\\n No. 18-10276\\n\\n21 U.S.C. § 846 (2012). As part of the agreement, Elam consented to an appeal\\nwaiver but expressly reserved the right to challenge the voluntariness of the\\nguilty plea and to bring a claim for ineffective assistance of counsel (“IAC”).\\nThe district court entered judgment on July 29, 2016. Because Elam did not\\ndirectly appeal his conviction or sentence, the judgment became final on Aug-\\nust 12, 2016 under Federal Rule of Appellate Procedure 4(b)(1)(A)(i). See\\nUnited States v. Plascencia, 537 F.3d 385, 388–90 (5th Cir. 2008).\\n\\n On July 10, 2017, Elam filed in the district court 1 a motion titled “Defen-\\ndant’s Motion Requesting SPECIAL DISCOVERY HEARING to Determine if\\nLevel of Court-Appointed Representation was ADEQUATE, Pursuant to the\\nCriminal Justice Act (18 USC § 3006A).” In the motion, Elam maintained that\\ncounsel had violated his constitutional right to effective assistance. He re-\\nquested that the district court order a hearing concerning whether he had\\nreceived adequate representation. He also asserted that his guilty plea was\\ngiven under duress and contended that counsel coerced the plea. He empha-\\nsized that counsel provides inadequate representation when he, inter alia,\\nneglects to (1) file motions, (2) investigate possible defenses, (3) hire experts\\nand investigators, (4) develop witness testimony, or (5) subpoena evidence. In\\naddition, Elam included a request for the appointment of counsel “for the\\nexpress purpose of filing all necessary motions/appeals” related to his IAC\\nclaim.\\n\\n The district court denied the motion, concluding that Elam had failed to\\nestablish that the case’s legal or factual complexity necessitated appointment\\nof counsel for the adequate investigation and presentation of his claim. The\\n\\n\\n\\n 1 “[A] pro se prisoner’s habeas petition is filed . . . when he delivers the papers to\\nprison authorities for mailing.” Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998) (per\\ncuriam).\\n 2\\n\\f Case: 18-10276 Document: 00515033235 Page: 3 Date Filed: 07/15/2019\\n\\n\\n No. 18-10276\\n\\ncourt stressed that “a defendant is not entitled to go on a fishing expedition\\nprior to filing a [28 U.S.C.] § 2255 motion.”\\n\\n On October 16, 2017, Elam moved to alter or amend the judgment under\\nFederal Rule of Civil Procedure 59(e). He contended that the district court\\nerred in denying his motion for a discovery hearing by failing to construe it as\\na § 2255 motion. Elam urged that pro se filings should be liberally construed,\\nciting precedent from this court and others, and reiterated his intent to bring\\nan IAC claim. Ultimately, he requested that the court vacate its order denying\\nhis special-discovery motion and recharacterize it as a § 2255 motion. Elam\\nalso asked that the court grant leave to amend the motion.\\n\\n In a later order, the district court expressly declined to construe the\\ndiscovery motion as a § 2255 motion, noting that Elam had “attempted to first\\nsecure the appointment of counsel and discovery to investigate whether a pos-\\nsible ineffective assistance of counsel claim may exist” even though he “could\\nhave certainly filed a motion under § 2255.” Nonetheless, “to prevent the loss\\nof [Elam’s] rights to pursue an [IAC] claim under § 2255,” the court reclassified\\nElam’s Rule 59(e) motion and directed him to file an amended § 2255 motion\\nwithin thirty days. The court also instructed Elam to answer each question on\\na § 2255 form approved for use in the Northern District of Texas.\\n\\n Elam filed an amended § 2255 motion and a memorandum in support.\\nHe cited two grounds for relief: (1) an IAC claim and (2) a claim that his guilty\\nplea was invalid because it was coerced by counsel. Elam responded “N/A” to\\nthe question on the § 2255 form related to the timeliness of the motion.\\n\\n The district court denied the amended motion, reiterating that by filing\\na discovery request, Elam “understood he was not filing a § 2255 motion.” The\\ncourt emphasized that “[t]he law does not allow Movant to engage in a fishing\\nexpedition for evidence before filing a § 2255 motion, nor does it allow him to\\n\\n 3\\n\\f Case: 18-10276 Document: 00515033235 Page: 4 Date Filed: 07/15/2019\\n\\n\\n No. 18-10276\\n\\ntoll the one-year statute of limitations for filing a § 2255 motion simply because\\nhe requested an attorney to research possible claims.” Ultimately, the court\\nconstrued the date Elam filed his Rule 59(e) motion as the filing date of the\\nhabeas petition but determined that the motion was barred by the relevant\\nstatute of limitations, 28 U.S.C. § 2255(f)(1), because the motion was filed on\\nOctober 16, 2017, more than one year after Elam’s judgment of conviction had\\nbecome final on August 12, 2016. Elam appeals.\\n\\n II.\\n A habeas petitioner in federal custody is subject to a one-year statute of\\nlimitations. See 28 U.S.C. § 2255(f). As relevant here, limitations runs from\\n“the date on which the judgment of conviction becomes final.” Id. § 2255(f)(1).\\n\\n “Dismissal of a first federal habeas petition is a particularly serious mat-\\nter, for that dismissal denies the petitioner the protections of the Great Writ\\nentirely, risking injury to an important interest in human liberty.” Lonchar v.\\nThomas, 517 U.S. 314, 324 (1996). Consequently, a court will sometimes\\nrecharacterize a motion filed by a pro se prisoner as a request for habeas relief\\nunder § 2255 even though the motion is labeled differently. Castro v. United\\nStates, 540 U.S. 375, 377 (2003).\\n\\n “[P]ro se habeas petitions are not held to the same stringent and rigorous\\nstandards as are pleadings filed by lawyers.” Hernandez v. Thaler, 630 F.3d\\n420, 426 (5th Cir. 2011) (per curiam) (internal quotation marks and citation\\nomitted); see also United States v. Torres, 163 F.3d 909, 910 n.5 (5th Cir. 1999).\\nUltimately, “[i]t is the substance of the relief sought by a pro se pleading, not\\nthe label that the petitioner has attached to it, that determines the true nature\\nand operative effect of a habeas filing.” Hernandez, 630 F.3d at 426–27.\\nNonetheless, a court may not\\n recharacterize a pro se litigant’s motion as the litigant’s first\\n\\n 4\\n\\f Case: 18-10276 Document: 00515033235 Page: 5 Date Filed: 07/15/2019\\n\\n\\n No. 18-10276\\n\\n § 2255 motion unless the court informs the litigant of its intent to\\n recharacterize, warns the litigant that the recharacterization will\\n subject subsequent § 2255 motions to the law’s “second or succes-\\n sive” restrictions, and provides the litigant with an opportunity to\\n withdraw, or to amend, the filing.\\nCastro, 540 U.S. at 377.\\n\\n III.\\n The decision to recharacterize a motion is discretionary. See United\\nStates v. Santora, 711 F.2d 41, 42 (5th Cir. 1983). We therefore review for\\nabuse of discretion the decision not to construe Elam’s special-discovery motion\\nas a § 2255 petition. See United States v. Gonzalez-Bueno, 510 F. App’x 718,\\n719 (10th Cir. 2013); cf. United States v. Riascos, 76 F.3d 93, 94 (5th Cir. 1996)\\n(per curiam). “A district court abuses its discretion if it bases its decision on\\nan error of law or a clearly erroneous assessment of the evidence.” United\\nStates v. Smith, 417 F.3d 483, 486–87 (5th Cir. 2005) (internal quotation marks\\nand citation omitted).\\n\\n A.\\n Elam asserts that “[t]he district court erred and abused its discretion by\\ndenying [his] § 2255 [m]otion as time-barred.” He contends that by refusing to\\nrecharacterize his special-discovery motion as a § 2255 motion, the court pre-\\nvented him from pursuing habeas relief on his IAC claim because any future\\nmotion he files would be barred by § 2255(f)’s limitations. Elam also empha-\\nsizes that pro se litigants are entitled to have their filings liberally construed.\\nConsequently, he asserts that his discovery motion should be recharacterized\\nas a § 2255 motion so that the court can rule on its merits. 2\\n\\n\\n\\n\\n 2 The government chose not to participate in this case. See Letter from Wes Hendrix,\\nAssistant U.S. Attorney, U.S. Dep’t of Justice, to Lyle Cayce, Clerk, U.S. Court of Appeals for\\nthe Fifth Circuit (Oct. 1, 2018).\\n 5\\n\\f Case: 18-10276 Document: 00515033235 Page: 6 Date Filed: 07/15/2019\\n\\n\\n No. 18-10276\\n\\n B.\\n The district court abused its discretion in declining to recharacterize\\nElam’s special-discovery motion as a § 2255 motion because it failed to con-\\nstrue the motion liberally and denied him the protections of the Great Writ.\\n“[W]e have frequently instructed district courts to determine the true nature\\nof a pleading by its substance, not its label.” United States v. Flores,\\n380 F. App’x 371, 372 (5th Cir. 2010) (per curiam) (citation omitted). 3 Elam’s\\ndiscovery motion, “although inartfully drafted, stated enough that it should\\nhave been liberally construed as a § 2255 motion.” Flores, 380 F. App’x at 372.\\nElam asserted that his constitutional right to effective assistance of counsel\\nhad been violated, resulting in a deprivation of his liberty. He underscored\\nthat the district court is responsible for ensuring that counsel’s representation\\nis adequate, and he implicitly stated seven bases for his IAC claim. He also\\nchallenged his conviction, maintained that his guilty plea was entered under\\nduress, and averred that counsel coerced his guilty plea. Liberally construed,\\nthat is enough to qualify Elam’s motion as a § 2255 motion.\\n\\n “[T]he interests of justice require the district court to further consider\\nthe matter . . . .” Id. On remand, the court should give Elam notice that his\\nspecial-discovery motion is being construed as a § 2255 motion and should\\nallow a reasonable opportunity to amend or withdraw it. See Castro, 540 U.S.\\nat 377, 383. The judgment is VACATED and REMANDED. We express no\\nview on the ultimate merits, and we place no limitation on what decisions the\\ndistrict court should make.\\n\\n\\n\\n 3 See also, e.g., Castro, 540 U.S. at 381–82 (collecting cases); United States v. Bernal,\\n551 F. App’x 177, 179 (5th Cir. 2014) (per curiam) (construing a motion for leave to file an\\nout-of-time appeal as a § 2255 motion); United States v. Feliz, 537 F. App’x 406, 407 (5th Cir.\\n2013) (per curiam) (recharacterizing a Federal Rule of Civil Procedure 60(b) motion as a\\n§ 2255 motion); United States v. Moron-Solis, 388 F. App’x 443, 444–45 (5th Cir. 2010) (per\\ncuriam).\\n 6\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4416774/\", \"author_raw\": \"JERRY E. SMITH, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"HIGGINBOTHAM"},"judge2":{"kind":"string","value":"SMITH"},"judge3":{"kind":"string","value":"SOUTHWICK"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"HIGGINBOTHAM\": \", Circuit\", \"SMITH\": \", Circuit\", \"SOUTHWICK\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4639521/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Richard Luke ELAM, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-10276 Document: 00515033235 Page: 1 Date Filed: 07/15/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 18-10276 July 15, 2019\n Lyle W. Cayce\n Clerk\nUNITED STATES OF AMERICA,\n\n Plaintiff–Appellee,\nversus\n\nRICHARD LUKE ELAM,\n\n Defendant–Appellant.\n\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n\n\n\n\nBefore HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.\nJERRY E. SMITH, Circuit Judge:\n\n After failing to appeal either his conviction or sentence, Richard Elam\nmoved for a special discovery hearing concerning the adequacy of trial counsel’s\nrepresentation. The district court denied the request and declined to recharac-\nterize the discovery motion as a 28 U.S.C. § 2255 motion. Because the court\nerred in failing to recharacterize, we vacate and remand.\n\n I.\n In March 2016, Elam agreed to plead guilty of conspiracy to distribute\nand possess with intent to distribute methamphetamine in violation of\n\f Case: 18-10276 Document: 00515033235 Page: 2 Date Filed: 07/15/2019\n\n\n No. 18-10276\n\n21 U.S.C. § 846 (2012). As part of the agreement, Elam consented to an appeal\nwaiver but expressly reserved the right to challenge the voluntariness of the\nguilty plea and to bring a claim for ineffective assistance of counsel (“IAC”).\nThe district court entered judgment on July 29, 2016. Because Elam did not\ndirectly appeal his conviction or sentence, the judgment became final on Aug-\nust 12, 2016 under Federal Rule of Appellate Procedure 4(b)(1)(A)(i). See\nUnited States v. Plascencia, 537 F.3d 385, 388–90 (5th Cir. 2008).\n\n On July 10, 2017, Elam filed in the district court 1 a motion titled “Defen-\ndant’s Motion Requesting SPECIAL DISCOVERY HEARING to Determine if\nLevel of Court-Appointed Representation was ADEQUATE, Pursuant to the\nCriminal Justice Act (18 USC § 3006A).” In the motion, Elam maintained that\ncounsel had violated his constitutional right to effective assistance. He re-\nquested that the district court order a hearing concerning whether he had\nreceived adequate representation. He also asserted that his guilty plea was\ngiven under duress and contended that counsel coerced the plea. He empha-\nsized that counsel provides inadequate representation when he, inter alia,\nneglects to (1) file motions, (2) investigate possible defenses, (3) hire experts\nand investigators, (4) develop witness testimony, or (5) subpoena evidence. In\naddition, Elam included a request for the appointment of counsel “for the\nexpress purpose of filing all necessary motions/appeals” related to his IAC\nclaim.\n\n The district court denied the motion, concluding that Elam had failed to\nestablish that the case’s legal or factual complexity necessitated appointment\nof counsel for the adequate investigation and presentation of his claim. The\n\n\n\n 1 “[A] pro se prisoner’s habeas petition is filed . . . when he delivers the papers to\nprison authorities for mailing.” Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998) (per\ncuriam).\n 2\n\f Case: 18-10276 Document: 00515033235 Page: 3 Date Filed: 07/15/2019\n\n\n No. 18-10276\n\ncourt stressed that “a defendant is not entitled to go on a fishing expedition\nprior to filing a [28 U.S.C.] § 2255 motion.”\n\n On October 16, 2017, Elam moved to alter or amend the judgment under\nFederal Rule of Civil Procedure 59(e). He contended that the district court\nerred in denying his motion for a discovery hearing by failing to construe it as\na § 2255 motion. Elam urged that pro se filings should be liberally construed,\nciting precedent from this court and others, and reiterated his intent to bring\nan IAC claim. Ultimately, he requested that the court vacate its order denying\nhis special-discovery motion and recharacterize it as a § 2255 motion. Elam\nalso asked that the court grant leave to amend the motion.\n\n In a later order, the district court expressly declined to construe the\ndiscovery motion as a § 2255 motion, noting that Elam had “attempted to first\nsecure the appointment of counsel and discovery to investigate whether a pos-\nsible ineffective assistance of counsel claim may exist” even though he “could\nhave certainly filed a motion under § 2255.” Nonetheless, “to prevent the loss\nof [Elam’s] rights to pursue an [IAC] claim under § 2255,” the court reclassified\nElam’s Rule 59(e) motion and directed him to file an amended § 2255 motion\nwithin thirty days. The court also instructed Elam to answer each question on\na § 2255 form approved for use in the Northern District of Texas.\n\n Elam filed an amended § 2255 motion and a memorandum in support.\nHe cited two grounds for relief: (1) an IAC claim and (2) a claim that his guilty\nplea was invalid because it was coerced by counsel. Elam responded “N/A” to\nthe question on the § 2255 form related to the timeliness of the motion.\n\n The district court denied the amended motion, reiterating that by filing\na discovery request, Elam “understood he was not filing a § 2255 motion.” The\ncourt emphasized that “[t]he law does not allow Movant to engage in a fishing\nexpedition for evidence before filing a § 2255 motion, nor does it allow him to\n\n 3\n\f Case: 18-10276 Document: 00515033235 Page: 4 Date Filed: 07/15/2019\n\n\n No. 18-10276\n\ntoll the one-year statute of limitations for filing a § 2255 motion simply because\nhe requested an attorney to research possible claims.” Ultimately, the court\nconstrued the date Elam filed his Rule 59(e) motion as the filing date of the\nhabeas petition but determined that the motion was barred by the relevant\nstatute of limitations, 28 U.S.C. § 2255(f)(1), because the motion was filed on\nOctober 16, 2017, more than one year after Elam’s judgment of conviction had\nbecome final on August 12, 2016. Elam appeals.\n\n II.\n A habeas petitioner in federal custody is subject to a one-year statute of\nlimitations. See 28 U.S.C. § 2255(f). As relevant here, limitations runs from\n“the date on which the judgment of conviction becomes final.” Id. § 2255(f)(1).\n\n “Dismissal of a first federal habeas petition is a particularly serious mat-\nter, for that dismissal denies the petitioner the protections of the Great Writ\nentirely, risking injury to an important interest in human liberty.” Lonchar v.\nThomas, 517 U.S. 314, 324 (1996). Consequently, a court will sometimes\nrecharacterize a motion filed by a pro se prisoner as a request for habeas relief\nunder § 2255 even though the motion is labeled differently. Castro v. United\nStates, 540 U.S. 375, 377 (2003).\n\n “[P]ro se habeas petitions are not held to the same stringent and rigorous\nstandards as are pleadings filed by lawyers.” Hernandez v. Thaler, 630 F.3d\n420, 426 (5th Cir. 2011) (per curiam) (internal quotation marks and citation\nomitted); see also United States v. Torres, 163 F.3d 909, 910 n.5 (5th Cir. 1999).\nUltimately, “[i]t is the substance of the relief sought by a pro se pleading, not\nthe label that the petitioner has attached to it, that determines the true nature\nand operative effect of a habeas filing.” Hernandez, 630 F.3d at 426–27.\nNonetheless, a court may not\n recharacterize a pro se litigant’s motion as the litigant’s first\n\n 4\n\f Case: 18-10276 Document: 00515033235 Page: 5 Date Filed: 07/15/2019\n\n\n No. 18-10276\n\n § 2255 motion unless the court informs the litigant of its intent to\n recharacterize, warns the litigant that the recharacterization will\n subject subsequent § 2255 motions to the law’s “second or succes-\n sive” restrictions, and provides the litigant with an opportunity to\n withdraw, or to amend, the filing.\nCastro, 540 U.S. at 377.\n\n III.\n The decision to recharacterize a motion is discretionary. See United\nStates v. Santora, 711 F.2d 41, 42 (5th Cir. 1983). We therefore review for\nabuse of discretion the decision not to construe Elam’s special-discovery motion\nas a § 2255 petition. See United States v. Gonzalez-Bueno, 510 F. App’x 718,\n719 (10th Cir. 2013); cf. United States v. Riascos, 76 F.3d 93, 94 (5th Cir. 1996)\n(per curiam). “A district court abuses its discretion if it bases its decision on\nan error of law or a clearly erroneous assessment of the evidence.” United\nStates v. Smith, 417 F.3d 483, 486–87 (5th Cir. 2005) (internal quotation marks\nand citation omitted).\n\n A.\n Elam asserts that “[t]he district court erred and abused its discretion by\ndenying [his] § 2255 [m]otion as time-barred.” He contends that by refusing to\nrecharacterize his special-discovery motion as a § 2255 motion, the court pre-\nvented him from pursuing habeas relief on his IAC claim because any future\nmotion he files would be barred by § 2255(f)’s limitations. Elam also empha-\nsizes that pro se litigants are entitled to have their filings liberally construed.\nConsequently, he asserts that his discovery motion should be recharacterized\nas a § 2255 motion so that the court can rule on its merits. 2\n\n\n\n\n 2 The government chose not to participate in this case. See Letter from Wes Hendrix,\nAssistant U.S. Attorney, U.S. Dep’t of Justice, to Lyle Cayce, Clerk, U.S. Court of Appeals for\nthe Fifth Circuit (Oct. 1, 2018).\n 5\n\f Case: 18-10276 Document: 00515033235 Page: 6 Date Filed: 07/15/2019\n\n\n No. 18-10276\n\n B.\n The district court abused its discretion in declining to recharacterize\nElam’s special-discovery motion as a § 2255 motion because it failed to con-\nstrue the motion liberally and denied him the protections of the Great Writ.\n“[W]e have frequently instructed district courts to determine the true nature\nof a pleading by its substance, not its label.” United States v. Flores,\n380 F. App’x 371, 372 (5th Cir. 2010) (per curiam) (citation omitted). 3 Elam’s\ndiscovery motion, “although inartfully drafted, stated enough that it should\nhave been liberally construed as a § 2255 motion.” Flores, 380 F. App’x at 372.\nElam asserted that his constitutional right to effective assistance of counsel\nhad been violated, resulting in a deprivation of his liberty. He underscored\nthat the district court is responsible for ensuring that counsel’s representation\nis adequate, and he implicitly stated seven bases for his IAC claim. He also\nchallenged his conviction, maintained that his guilty plea was entered under\nduress, and averred that counsel coerced his guilty plea. Liberally construed,\nthat is enough to qualify Elam’s motion as a § 2255 motion.\n\n “[T]he interests of justice require the district court to further consider\nthe matter . . . .” Id. On remand, the court should give Elam notice that his\nspecial-discovery motion is being construed as a § 2255 motion and should\nallow a reasonable opportunity to amend or withdraw it. See Castro, 540 U.S.\nat 377, 383. The judgment is VACATED and REMANDED. We express no\nview on the ultimate merits, and we place no limitation on what decisions the\ndistrict court should make.\n\n\n\n 3 See also, e.g., Castro, 540 U.S. at 381–82 (collecting cases); United States v. Bernal,\n551 F. App’x 177, 179 (5th Cir. 2014) (per curiam) (construing a motion for leave to file an\nout-of-time appeal as a § 2255 motion); United States v. Feliz, 537 F. App’x 406, 407 (5th Cir.\n2013) (per curiam) (recharacterizing a Federal Rule of Civil Procedure 60(b) motion as a\n§ 2255 motion); United States v. Moron-Solis, 388 F. App’x 443, 444–45 (5th Cir. 2010) (per\ncuriam).\n 6\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Richard Luke ELAM, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-10276 Document: 00515033235 Page: 1 Date Filed: 07/15/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-10276 July 15, 2019\\n Lyle W. Cayce\\n Clerk\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff–Appellee,\\nversus\\n\\nRICHARD LUKE ELAM,\\n\\n Defendant–Appellant.\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\n\\n\\nBefore HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.\\nJERRY E. SMITH, Circuit Judge:\\n\\n After failing to appeal either his conviction or sentence, Richard Elam\\nmoved for a special discovery hearing concerning the adequacy of trial counsel’s\\nrepresentation. The district court denied the request and declined to recharac-\\nterize the discovery motion as a 28 U.S.C. § 2255 motion. Because the court\\nerred in failing to recharacterize, we vacate and remand.\\n\\n I.\\n In March 2016, Elam agreed to plead guilty of conspiracy to distribute\\nand possess with intent to distribute methamphetamine in violation of\\n\\f Case: 18-10276 Document: 00515033235 Page: 2 Date Filed: 07/15/2019\\n\\n\\n No. 18-10276\\n\\n21 U.S.C. § 846 (2012). As part of the agreement, Elam consented to an appeal\\nwaiver but expressly reserved the right to challenge the voluntariness of the\\nguilty plea and to bring a claim for ineffective assistance of counsel (“IAC”).\\nThe district court entered judgment on July 29, 2016. Because Elam did not\\ndirectly appeal his conviction or sentence, the judgment became final on Aug-\\nust 12, 2016 under Federal Rule of Appellate Procedure 4(b)(1)(A)(i). See\\nUnited States v. Plascencia, 537 F.3d 385, 388–90 (5th Cir. 2008).\\n\\n On July 10, 2017, Elam filed in the district court 1 a motion titled “Defen-\\ndant’s Motion Requesting SPECIAL DISCOVERY HEARING to Determine if\\nLevel of Court-Appointed Representation was ADEQUATE, Pursuant to the\\nCriminal Justice Act (18 USC § 3006A).” In the motion, Elam maintained that\\ncounsel had violated his constitutional right to effective assistance. He re-\\nquested that the district court order a hearing concerning whether he had\\nreceived adequate representation. He also asserted that his guilty plea was\\ngiven under duress and contended that counsel coerced the plea. He empha-\\nsized that counsel provides inadequate representation when he, inter alia,\\nneglects to (1) file motions, (2) investigate possible defenses, (3) hire experts\\nand investigators, (4) develop witness testimony, or (5) subpoena evidence. In\\naddition, Elam included a request for the appointment of counsel “for the\\nexpress purpose of filing all necessary motions/appeals” related to his IAC\\nclaim.\\n\\n The district court denied the motion, concluding that Elam had failed to\\nestablish that the case’s legal or factual complexity necessitated appointment\\nof counsel for the adequate investigation and presentation of his claim. The\\n\\n\\n\\n 1 “[A] pro se prisoner’s habeas petition is filed . . . when he delivers the papers to\\nprison authorities for mailing.” Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998) (per\\ncuriam).\\n 2\\n\\f Case: 18-10276 Document: 00515033235 Page: 3 Date Filed: 07/15/2019\\n\\n\\n No. 18-10276\\n\\ncourt stressed that “a defendant is not entitled to go on a fishing expedition\\nprior to filing a [28 U.S.C.] § 2255 motion.”\\n\\n On October 16, 2017, Elam moved to alter or amend the judgment under\\nFederal Rule of Civil Procedure 59(e). He contended that the district court\\nerred in denying his motion for a discovery hearing by failing to construe it as\\na § 2255 motion. Elam urged that pro se filings should be liberally construed,\\nciting precedent from this court and others, and reiterated his intent to bring\\nan IAC claim. Ultimately, he requested that the court vacate its order denying\\nhis special-discovery motion and recharacterize it as a § 2255 motion. Elam\\nalso asked that the court grant leave to amend the motion.\\n\\n In a later order, the district court expressly declined to construe the\\ndiscovery motion as a § 2255 motion, noting that Elam had “attempted to first\\nsecure the appointment of counsel and discovery to investigate whether a pos-\\nsible ineffective assistance of counsel claim may exist” even though he “could\\nhave certainly filed a motion under § 2255.” Nonetheless, “to prevent the loss\\nof [Elam’s] rights to pursue an [IAC] claim under § 2255,” the court reclassified\\nElam’s Rule 59(e) motion and directed him to file an amended § 2255 motion\\nwithin thirty days. The court also instructed Elam to answer each question on\\na § 2255 form approved for use in the Northern District of Texas.\\n\\n Elam filed an amended § 2255 motion and a memorandum in support.\\nHe cited two grounds for relief: (1) an IAC claim and (2) a claim that his guilty\\nplea was invalid because it was coerced by counsel. Elam responded “N/A” to\\nthe question on the § 2255 form related to the timeliness of the motion.\\n\\n The district court denied the amended motion, reiterating that by filing\\na discovery request, Elam “understood he was not filing a § 2255 motion.” The\\ncourt emphasized that “[t]he law does not allow Movant to engage in a fishing\\nexpedition for evidence before filing a § 2255 motion, nor does it allow him to\\n\\n 3\\n\\f Case: 18-10276 Document: 00515033235 Page: 4 Date Filed: 07/15/2019\\n\\n\\n No. 18-10276\\n\\ntoll the one-year statute of limitations for filing a § 2255 motion simply because\\nhe requested an attorney to research possible claims.” Ultimately, the court\\nconstrued the date Elam filed his Rule 59(e) motion as the filing date of the\\nhabeas petition but determined that the motion was barred by the relevant\\nstatute of limitations, 28 U.S.C. § 2255(f)(1), because the motion was filed on\\nOctober 16, 2017, more than one year after Elam’s judgment of conviction had\\nbecome final on August 12, 2016. Elam appeals.\\n\\n II.\\n A habeas petitioner in federal custody is subject to a one-year statute of\\nlimitations. See 28 U.S.C. § 2255(f). As relevant here, limitations runs from\\n“the date on which the judgment of conviction becomes final.” Id. § 2255(f)(1).\\n\\n “Dismissal of a first federal habeas petition is a particularly serious mat-\\nter, for that dismissal denies the petitioner the protections of the Great Writ\\nentirely, risking injury to an important interest in human liberty.” Lonchar v.\\nThomas, 517 U.S. 314, 324 (1996). Consequently, a court will sometimes\\nrecharacterize a motion filed by a pro se prisoner as a request for habeas relief\\nunder § 2255 even though the motion is labeled differently. Castro v. United\\nStates, 540 U.S. 375, 377 (2003).\\n\\n “[P]ro se habeas petitions are not held to the same stringent and rigorous\\nstandards as are pleadings filed by lawyers.” Hernandez v. Thaler, 630 F.3d\\n420, 426 (5th Cir. 2011) (per curiam) (internal quotation marks and citation\\nomitted); see also United States v. Torres, 163 F.3d 909, 910 n.5 (5th Cir. 1999).\\nUltimately, “[i]t is the substance of the relief sought by a pro se pleading, not\\nthe label that the petitioner has attached to it, that determines the true nature\\nand operative effect of a habeas filing.” Hernandez, 630 F.3d at 426–27.\\nNonetheless, a court may not\\n recharacterize a pro se litigant’s motion as the litigant’s first\\n\\n 4\\n\\f Case: 18-10276 Document: 00515033235 Page: 5 Date Filed: 07/15/2019\\n\\n\\n No. 18-10276\\n\\n § 2255 motion unless the court informs the litigant of its intent to\\n recharacterize, warns the litigant that the recharacterization will\\n subject subsequent § 2255 motions to the law’s “second or succes-\\n sive” restrictions, and provides the litigant with an opportunity to\\n withdraw, or to amend, the filing.\\nCastro, 540 U.S. at 377.\\n\\n III.\\n The decision to recharacterize a motion is discretionary. See United\\nStates v. Santora, 711 F.2d 41, 42 (5th Cir. 1983). We therefore review for\\nabuse of discretion the decision not to construe Elam’s special-discovery motion\\nas a § 2255 petition. See United States v. Gonzalez-Bueno, 510 F. App’x 718,\\n719 (10th Cir. 2013); cf. United States v. Riascos, 76 F.3d 93, 94 (5th Cir. 1996)\\n(per curiam). “A district court abuses its discretion if it bases its decision on\\nan error of law or a clearly erroneous assessment of the evidence.” United\\nStates v. Smith, 417 F.3d 483, 486–87 (5th Cir. 2005) (internal quotation marks\\nand citation omitted).\\n\\n A.\\n Elam asserts that “[t]he district court erred and abused its discretion by\\ndenying [his] § 2255 [m]otion as time-barred.” He contends that by refusing to\\nrecharacterize his special-discovery motion as a § 2255 motion, the court pre-\\nvented him from pursuing habeas relief on his IAC claim because any future\\nmotion he files would be barred by § 2255(f)’s limitations. Elam also empha-\\nsizes that pro se litigants are entitled to have their filings liberally construed.\\nConsequently, he asserts that his discovery motion should be recharacterized\\nas a § 2255 motion so that the court can rule on its merits. 2\\n\\n\\n\\n\\n 2 The government chose not to participate in this case. See Letter from Wes Hendrix,\\nAssistant U.S. Attorney, U.S. Dep’t of Justice, to Lyle Cayce, Clerk, U.S. Court of Appeals for\\nthe Fifth Circuit (Oct. 1, 2018).\\n 5\\n\\f Case: 18-10276 Document: 00515033235 Page: 6 Date Filed: 07/15/2019\\n\\n\\n No. 18-10276\\n\\n B.\\n The district court abused its discretion in declining to recharacterize\\nElam’s special-discovery motion as a § 2255 motion because it failed to con-\\nstrue the motion liberally and denied him the protections of the Great Writ.\\n“[W]e have frequently instructed district courts to determine the true nature\\nof a pleading by its substance, not its label.” United States v. Flores,\\n380 F. App’x 371, 372 (5th Cir. 2010) (per curiam) (citation omitted). 3 Elam’s\\ndiscovery motion, “although inartfully drafted, stated enough that it should\\nhave been liberally construed as a § 2255 motion.” Flores, 380 F. App’x at 372.\\nElam asserted that his constitutional right to effective assistance of counsel\\nhad been violated, resulting in a deprivation of his liberty. He underscored\\nthat the district court is responsible for ensuring that counsel’s representation\\nis adequate, and he implicitly stated seven bases for his IAC claim. He also\\nchallenged his conviction, maintained that his guilty plea was entered under\\nduress, and averred that counsel coerced his guilty plea. Liberally construed,\\nthat is enough to qualify Elam’s motion as a § 2255 motion.\\n\\n “[T]he interests of justice require the district court to further consider\\nthe matter . . . .” Id. On remand, the court should give Elam notice that his\\nspecial-discovery motion is being construed as a § 2255 motion and should\\nallow a reasonable opportunity to amend or withdraw it. See Castro, 540 U.S.\\nat 377, 383. The judgment is VACATED and REMANDED. We express no\\nview on the ultimate merits, and we place no limitation on what decisions the\\ndistrict court should make.\\n\\n\\n\\n 3 See also, e.g., Castro, 540 U.S. at 381–82 (collecting cases); United States v. Bernal,\\n551 F. App’x 177, 179 (5th Cir. 2014) (per curiam) (construing a motion for leave to file an\\nout-of-time appeal as a § 2255 motion); United States v. Feliz, 537 F. App’x 406, 407 (5th Cir.\\n2013) (per curiam) (recharacterizing a Federal Rule of Civil Procedure 60(b) motion as a\\n§ 2255 motion); United States v. Moron-Solis, 388 F. App’x 443, 444–45 (5th Cir. 2010) (per\\ncuriam).\\n 6\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2994,"cells":{"id":{"kind":"number","value":4639522,"string":"4,639,522"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Babar Javed BUTT, Defendant, and Huma Butt; Tajuddin Salahuddin, Appellants."},"name_abbreviation":{"kind":"string","value":"United States v. Babar Butt"},"decision_date":{"kind":"string","value":"2019-07-15"},"docket_number":{"kind":"string","value":"18-20131"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Higginbotham, Smith, Southwick\", \"parties\": \"\", \"opinions\": [{\"author\": \"JERRY E. SMITH, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-20131 Document: 00515033470 Page: 1 Date Filed: 07/15/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 18-20131 FILED\\n July 15, 2019\\n Lyle W. Cayce\\n Clerk\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff–Appellee,\\n\\nversus\\n\\nBABAR JAVED BUTT,\\n\\n Defendant,\\n\\nand\\n\\nHUMA BUTT; TAJUDDIN SALAHUDDIN,\\n\\n Appellants.\\n\\n\\n\\n Appeals from the United States District Court\\n for the Southern District of Texas\\n\\n\\n\\n\\nBefore HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.\\nJERRY E. SMITH, Circuit Judge:\\n\\n Huma Butt (“Huma”) and Tajuddin Salahuddin, pro se, asserted inter-\\nests in a convicted criminal defendant’s property that was subject to criminal\\nforfeiture and criminal restitution. The district court denied their motions for\\n\\f Case: 18-20131 Document: 00515033470 Page: 2 Date Filed: 07/15/2019\\n\\n\\n\\n No. 18-20131\\nancillary hearings and return of property. They appeal, challenging the rejec-\\ntion of their petitions for ancillary hearings and asserting their interests in the\\ncriminal defendant’s property. We affirm in part, vacate in part, and remand.\\n\\n I.\\n Babar Javed Butt (“Babar”) was convicted of mail fraud. During the\\ncriminal investigation, the government seized from Babar $91,267 (the “cash”)\\nand 452 electronic devices (the “devices”) consisting of tablets, phones, and\\ncomputers. The cash was transferred to the U.S. Marshals Service. The dis-\\ntrict court sentenced Babar, in part, to $287,679 in restitution and ordered him\\nto forfeit $287,679. The court also granted the government’s motions to forfeit\\n360 of the devices to the United States in partial satisfaction of the forfeiture\\norder and to turn over the cash in partial satisfaction of Babar’s restitution\\ndebt.\\n\\n Huma and Salahuddin, not parties to the criminal proceeding, asserted\\ninterests in the cash and electronic devices, filing individual pro se motions\\nseeking ancillary hearings and the return of property. Huma, Babar’s sister,\\nclaimed that she had a “priority ownership” in and was a “bonafide purchaser”\\nof the cash and devices because she had paid off a debt that Babar owed to a\\nthird party for lending him money to purchase electronic devices. The district\\ncourt denied her motion because she was not a party to the criminal\\nproceeding.\\n\\n Salahuddin contended that he was a secured creditor of Babar’s and that\\nhe possessed a lien superior to that of the United States on the cash and devices\\nbecause he had executed a Collateralized Inventory Loan with Babar that\\nplaced that property “under lien.” The court also denied Salahuddin’s motion\\nbecause, taking his allegations as true, he was “at best” “an unsecured creditor”\\nof the cash and devices, so “the United States ha[d] a superior claim to the\\n 2\\n\\f Case: 18-20131 Document: 00515033470 Page: 3 Date Filed: 07/15/2019\\n\\n\\n\\n No. 18-20131\\nassets.”\\n\\n On appeal, Huma and Salahuddin challenge the denial of their motions\\nasserting their interests in the cash and devices and seeking ancillary hear-\\nings. Huma contends that she has a “superior right because she is a bonafide\\nlien holder” of the cash and devices for having paid Babar’s debt to the third\\nparty. Salahuddin maintains that the Collateralized Inventory Loan estab-\\nlishes him as Babar’s secured creditor with a lien superior to that of the United\\nStates on the cash and devices.\\n\\n II.\\n A third party “asserting a legal interest in property which has been\\nordered forfeited” may “petition the court for a hearing to adjudicate the valid-\\nity of his alleged interest in the property.” 21 U.S.C. § 853(n)(2)–(3); see also\\nFED. R. CRIM. P. 32.2(c). When “a third party files a petition asserting an inter-\\nest” in property that the government seeks to forfeit, the district “court must\\nconduct an ancillary proceeding.” FED. R. CRIM. P. 32.2(c)(1). A petitioner has\\nthe burden of proving “by a preponderance of the evidence that” (1) “legal right,\\ntitle, or interest” in the forfeited property “was vested in the petitioner rather\\nthan the defendant” or that petitioner’s “legal right, title, or interest” was\\n“superior” to that “of the defendant at the time of the commission of the acts\\nwhich gave rise to the forfeiture,” or (2) “the petitioner is a bona fide purchaser\\nfor value of the right, title, or interest in the property and was at the time of\\npurchase reasonably without cause to believe that the property was subject to\\nforfeiture.” 21 U.S.C. § 853(n)(6).\\n\\n “In [an] ancillary proceeding, the court may, on motion, dismiss the peti-\\ntion for lack of standing, for failure to state a claim, or for any other lawful\\nreason.” FED. R. CRIM. P. 32.2(c)(1)(A). “For purposes of the motion, the facts\\nset forth in the petition are assumed to be true.” Id. “Although . . . ancillary\\n 3\\n\\f Case: 18-20131 Document: 00515033470 Page: 4 Date Filed: 07/15/2019\\n\\n\\n\\n No. 18-20131\\nproceeding[s] arise[] in the context of criminal forfeiture, [they] closely resem-\\nble[] . . . civil proceeding[s].” 1 Furthermore, the advisory committee’s notes to\\nRule 32.2 state that courts should follow the Federal Rules of Civil Procedure\\nfor “fundamental areas” of ancillary proceedings, such as “motion[s] to dis-\\nmiss.” FED. R. CRIM. P. 32.2 advisory committee’s note to 2000 adoption.\\n\\n Consequently, this court applies the standard of review under Federal\\nRule of Civil Procedure 12 to the pleading-stage dismissal of a petition for an\\nancillary proceeding. 2 That standard of review states that this court “review[s]\\nde novo a district court’s grant or denial of a Rule 12(b)(6) motion to dismiss”\\nfor failure to state a claim, “accepting all well-pleaded facts as true and viewing\\nthose facts in the light most favorable to the” nonmoving party. Groden v. City\\nof Dallas, 826 F.3d 280, 283 (5th Cir. 2016) (citation omitted).\\n\\n III.\\n As an initial matter, Huma’s and Salahuddin’s appeals are timely be-\\ncause the deadline for a civil notice of appeal applies. Ancillary proceedings\\nare civil in nature. See Corpus, 491 F.3d at 208. Where multiple parties file\\npetitions in the same case asserting property interests, an order dismissing a\\npetition for an ancillary proceeding is not appealable until the district court\\nhas ruled on all the petitions “unless the court determines that there is no just\\nreason for delay.” FED. R. CRIM. P. 32.2(c)(3).\\n\\n The district court denied Huma’s motions to reconsider its denial of her\\n\\n\\n 1 United States v. Corpus, 491 F.3d 205, 208 (5th Cir. 2007); see also id. at 208–09\\n(evaluating a motion for summary judgment in an ancillary proceeding according to the\\nstandard of review of Federal Rule of Civil Procedure 56).\\n 2 See United States v. Stone, 304 F. App’x 334, 336 (5th Cir. 2008) (per curiam) (ex-\\nplaining that a motion to dismiss a petition for an ancillary proceeding is reviewed using the\\nsame standard as under Rule 12); Corpus, 491 F.3d at 208–09 (citing favorably Pacheco v.\\nSerendensky, 393 F.3d 348 (2d Cir. 2004), which reviewed a motion to dismiss a petition for\\nan ancillary proceeding under the Federal Rules of Civil Procedure).\\n 4\\n\\f Case: 18-20131 Document: 00515033470 Page: 5 Date Filed: 07/15/2019\\n\\n\\n\\n No. 18-20131\\npetition for an ancillary hearing on February 2, 2018, and denied Salahuddin’s\\nmotion for an ancillary hearing on February 12. Huma and Salahuddin filed\\ntheir notices of appeal 11 days (February 23) and 15 days (February 27), re-\\nspectively, after the denial of Salahuddin’s petition. Thus, both appeals were\\ntimely under the civil deadline. See FED. R. APP. P. 4(a)(1)(A). 3\\n\\n IV.\\n A.\\n Huma challenges the denial of her petition for an ancillary hearing,\\nasserting that the court erroneously refused to consider her “rights in the\\nseized cash and electronic devices.” In her petition, Huma alleged that Babar\\nowed money to a third party who had given Babar money to purchase laptops\\nand ship them to him. Huma agreed to pay Babar’s debt and did so by bor-\\nrowing money. Throughout this time, Babar “repeatedly told” Huma “that he\\nwill be able to convince the court that everything was seized illegally and as\\nsoon as he gets all property back he will immediately ‘reimburse [Huma] the\\npromised amount and the additional interest paid on the loan.’”\\n\\n Huma maintains that these facts either “establish[ed] a lien” in her favor\\non the cash and devices or made her a “bonafide purchaser” of a right to them.\\nShe further asserts that “at no point” did she agree to be an unsecured creditor\\nof Babar’s. Huma’s claims fail. Her petition for an ancillary hearing does not\\nstate a claim under 21 U.S.C. § 853(n).\\n\\n\\n\\n\\n 3 Moreover, the government invokes the civil notice-of-appeal deadline, thereby for-\\nfeiting the ability to contend that the criminal deadline governs. See United States v. Collins,\\n712 F. App’x 392, 395 (5th Cir. 2017) (per curiam) (“[T]he Government’s brief expressly stated\\nthat this Court could consider this issue, forfeiting any untimeliness argument with respect\\nto the motion to reconsider.”); see also United States v. Martinez, 496 F.3d 387, 388–89 (5th\\nCir. 2007) (per curiam) (concluding that the criminal notice-of-appeal deadline is not juris-\\ndictional and may be waived).\\n 5\\n\\f Case: 18-20131 Document: 00515033470 Page: 6 Date Filed: 07/15/2019\\n\\n\\n\\n No. 18-20131\\n At all relevant times. the cash and devices were located in Texas.\\nTherefore, whether Huma held a valid security interest in that property is gov-\\nerned by Texas law. TEX. BUS. & COM. CODE § 9.301(1)–(3). Where collateral\\nis not in the possession or control of a purported secured party, a security\\ninterest cannot arise unless the parties execute a written security agreement,\\nsigned by the debtor, that contains a description of the collateral. See id.\\n§ 9.203(b)(3).\\n\\n Huma has not demonstrated the existence of the necessary written\\nsecurity agreement to establish her as a secured creditor with a lien on the\\ncash or devices. She did not attach a written, signed agreement to her petition\\nfor an ancillary hearing. Her petition asserted only an unsecured interest in\\nthe cash and devices, so she is merely an unsecured creditor.\\n\\n Huma’s status as an unsecured creditor determines her claims. Unse-\\ncured creditors generally lack standing to contest forfeiture of their debtor’s\\nproperty. See United States v. Reckmeyer, 836 F.2d 200, 205–06 (4th Cir. 1987).\\nTo prevail in a § 853(n) ancillary proceeding, a third-party petitioner must pos-\\nsess, or be a bona fide purchaser for value of, “a legal interest in property which\\nhas been ordered forfeited to the United States.” 21 U.S.C. § 853(n)(2). An\\nunsecured creditor cannot establish a legal right to “any particular piece of\\nproperty” in the debtor’s estate, see Corpus, 491 F.3d at 211, and therefore\\ncannot satisfy § 853(n)’s requirement “that the interest exist in the property\\nsubject to forfeiture,” Reckmeyer, 836 F.2d at 205.\\n\\n For the same reasons that Huma cannot establish a secured interest in\\nthe specific cash or devices, she also cannot demonstrate that she is a “bona\\nfide purchaser for value” of that property. She alleges no facts to support that\\nshe was a bona fide purchaser of the specific seized property. Accordingly, the\\ndistrict court properly rejected Huma’s petition for an ancillary hearing.\\n\\n 6\\n\\f Case: 18-20131 Document: 00515033470 Page: 7 Date Filed: 07/15/2019\\n\\n\\n\\n No. 18-20131\\n B.\\n Salahuddin likewise challenges the denial of his petition for an ancillary\\nhearing, averring that the court “erred in determining that [he] is an unse-\\ncured creditor.” In his petition, Salahuddin claims that he and Babar executed\\na Collateralized Inventory Loan on August 1, 2014, which he attached as\\nsupporting evidence. The loan agreement provides that Salahuddin will lend\\nBabar up to $400,000 “for the purchase of INVENTORY i.e. (i) Cell phones,\\n(ii) IPads, (iii) Mac Books (iv) Computers and (v) other electronic devices.” It\\nalso states that Babar “grants a first priority lien on, and security interest in\\nand to all of” that inventory, “whether now owned or hereafter acquired, now\\nexisting or hereafter created and wherever located” to Salahuddin.\\n\\n Salahuddin asserts on these facts that “any funds or inventory . . . seized\\nfrom . . . Babar . . . [is] under lien,” so he is a secured creditor with a priority\\nlien on the cash and devices. Though Salahuddin’s claims regarding the cash\\ndo not establish that he has an interest in that property superior to that of the\\nUnited States, he has alleged sufficient facts at this stage to establish a facially\\nvalid third-party claim to the devices. He is entitled to an ancillary proceeding\\nregarding his interest therein.\\n\\n First, Salahuddin repeatedly invokes forfeiture terms and procedures in\\nmaintaining that he has an interest in the cash. The cash, however, was not\\nforfeited. After being seized from Babar, it was held in the possession of the\\nU.S. Marshals Service and then ordered to be turned over and applied to\\nBabar’s restitution debt under the United States’ restitution lien that arose\\nunder 18 U.S.C. § 3613(c) on the entry of judgment. Salahuddin contends that\\nhe properly alleged a security interest in the district court and asserts that\\n“first in time is first in right,” implying that his interest in the cash is senior,\\nbut this line of reasoning misses the mark. The cash was not forfeited, and\\n\\n 7\\n\\f Case: 18-20131 Document: 00515033470 Page: 8 Date Filed: 07/15/2019\\n\\n\\n\\n No. 18-20131\\nthus the procedures in § 853(n) and Rule 32.2(c) are inapplicable. Salahuddin\\npresents no persuasive allegation that he has a priority claim to the cash senior\\nto the restitution lien of the United States.\\n\\n Nevertheless, second, Salahuddin has adequately alleged a secured\\ninterest in the devices. His claims in his petition, as supported by the attached\\nCollateralized Inventory Loan, support that he has a security interest in those\\ndevices because the loan agreement (1) exchanged value, (2) indicated that\\nBabar had rights in the electronic devices he was purchasing, and (3) de-\\nscribed, in a written agreement purporting to bear Babar’s signature, the\\nproperty serving as collateral. See TEX. BUS. & COM. CODE § 9.203(b). Thus,\\nSalahuddin’s petition contained sufficient facts to assert a facially plausible\\nclaim that he had a legal interest in the devices. See 21 U.S.C. § 853(n)(6).\\n\\n We therefore VACATE the denial of Salahuddin’s petition for an ancil-\\nlary hearing as to the devices and REMAND for further proceedings as needed.\\nIn all other respects, the judgment is AFFIRMED. We express no limit on\\nwhat actions the district court can take on remand or on the ultimate merits\\nof any issue.\\n\\n\\n\\n\\n 8\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4416775/\", \"author_raw\": \"JERRY E. SMITH, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"HIGGINBOTHAM"},"judge2":{"kind":"string","value":"SMITH"},"judge3":{"kind":"string","value":"SOUTHWICK"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4639522/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Babar Javed BUTT, Defendant, and Huma Butt; Tajuddin Salahuddin, Appellants.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-20131 Document: 00515033470 Page: 1 Date Filed: 07/15/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n\n No. 18-20131 FILED\n July 15, 2019\n Lyle W. Cayce\n Clerk\nUNITED STATES OF AMERICA,\n\n Plaintiff–Appellee,\n\nversus\n\nBABAR JAVED BUTT,\n\n Defendant,\n\nand\n\nHUMA BUTT; TAJUDDIN SALAHUDDIN,\n\n Appellants.\n\n\n\n Appeals from the United States District Court\n for the Southern District of Texas\n\n\n\n\nBefore HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.\nJERRY E. SMITH, Circuit Judge:\n\n Huma Butt (“Huma”) and Tajuddin Salahuddin, pro se, asserted inter-\nests in a convicted criminal defendant’s property that was subject to criminal\nforfeiture and criminal restitution. The district court denied their motions for\n\f Case: 18-20131 Document: 00515033470 Page: 2 Date Filed: 07/15/2019\n\n\n\n No. 18-20131\nancillary hearings and return of property. They appeal, challenging the rejec-\ntion of their petitions for ancillary hearings and asserting their interests in the\ncriminal defendant’s property. We affirm in part, vacate in part, and remand.\n\n I.\n Babar Javed Butt (“Babar”) was convicted of mail fraud. During the\ncriminal investigation, the government seized from Babar $91,267 (the “cash”)\nand 452 electronic devices (the “devices”) consisting of tablets, phones, and\ncomputers. The cash was transferred to the U.S. Marshals Service. The dis-\ntrict court sentenced Babar, in part, to $287,679 in restitution and ordered him\nto forfeit $287,679. The court also granted the government’s motions to forfeit\n360 of the devices to the United States in partial satisfaction of the forfeiture\norder and to turn over the cash in partial satisfaction of Babar’s restitution\ndebt.\n\n Huma and Salahuddin, not parties to the criminal proceeding, asserted\ninterests in the cash and electronic devices, filing individual pro se motions\nseeking ancillary hearings and the return of property. Huma, Babar’s sister,\nclaimed that she had a “priority ownership” in and was a “bonafide purchaser”\nof the cash and devices because she had paid off a debt that Babar owed to a\nthird party for lending him money to purchase electronic devices. The district\ncourt denied her motion because she was not a party to the criminal\nproceeding.\n\n Salahuddin contended that he was a secured creditor of Babar’s and that\nhe possessed a lien superior to that of the United States on the cash and devices\nbecause he had executed a Collateralized Inventory Loan with Babar that\nplaced that property “under lien.” The court also denied Salahuddin’s motion\nbecause, taking his allegations as true, he was “at best” “an unsecured creditor”\nof the cash and devices, so “the United States ha[d] a superior claim to the\n 2\n\f Case: 18-20131 Document: 00515033470 Page: 3 Date Filed: 07/15/2019\n\n\n\n No. 18-20131\nassets.”\n\n On appeal, Huma and Salahuddin challenge the denial of their motions\nasserting their interests in the cash and devices and seeking ancillary hear-\nings. Huma contends that she has a “superior right because she is a bonafide\nlien holder” of the cash and devices for having paid Babar’s debt to the third\nparty. Salahuddin maintains that the Collateralized Inventory Loan estab-\nlishes him as Babar’s secured creditor with a lien superior to that of the United\nStates on the cash and devices.\n\n II.\n A third party “asserting a legal interest in property which has been\nordered forfeited” may “petition the court for a hearing to adjudicate the valid-\nity of his alleged interest in the property.” 21 U.S.C. § 853(n)(2)–(3); see also\nFED. R. CRIM. P. 32.2(c). When “a third party files a petition asserting an inter-\nest” in property that the government seeks to forfeit, the district “court must\nconduct an ancillary proceeding.” FED. R. CRIM. P. 32.2(c)(1). A petitioner has\nthe burden of proving “by a preponderance of the evidence that” (1) “legal right,\ntitle, or interest” in the forfeited property “was vested in the petitioner rather\nthan the defendant” or that petitioner’s “legal right, title, or interest” was\n“superior” to that “of the defendant at the time of the commission of the acts\nwhich gave rise to the forfeiture,” or (2) “the petitioner is a bona fide purchaser\nfor value of the right, title, or interest in the property and was at the time of\npurchase reasonably without cause to believe that the property was subject to\nforfeiture.” 21 U.S.C. § 853(n)(6).\n\n “In [an] ancillary proceeding, the court may, on motion, dismiss the peti-\ntion for lack of standing, for failure to state a claim, or for any other lawful\nreason.” FED. R. CRIM. P. 32.2(c)(1)(A). “For purposes of the motion, the facts\nset forth in the petition are assumed to be true.” Id. “Although . . . ancillary\n 3\n\f Case: 18-20131 Document: 00515033470 Page: 4 Date Filed: 07/15/2019\n\n\n\n No. 18-20131\nproceeding[s] arise[] in the context of criminal forfeiture, [they] closely resem-\nble[] . . . civil proceeding[s].” 1 Furthermore, the advisory committee’s notes to\nRule 32.2 state that courts should follow the Federal Rules of Civil Procedure\nfor “fundamental areas” of ancillary proceedings, such as “motion[s] to dis-\nmiss.” FED. R. CRIM. P. 32.2 advisory committee’s note to 2000 adoption.\n\n Consequently, this court applies the standard of review under Federal\nRule of Civil Procedure 12 to the pleading-stage dismissal of a petition for an\nancillary proceeding. 2 That standard of review states that this court “review[s]\nde novo a district court’s grant or denial of a Rule 12(b)(6) motion to dismiss”\nfor failure to state a claim, “accepting all well-pleaded facts as true and viewing\nthose facts in the light most favorable to the” nonmoving party. Groden v. City\nof Dallas, 826 F.3d 280, 283 (5th Cir. 2016) (citation omitted).\n\n III.\n As an initial matter, Huma’s and Salahuddin’s appeals are timely be-\ncause the deadline for a civil notice of appeal applies. Ancillary proceedings\nare civil in nature. See Corpus, 491 F.3d at 208. Where multiple parties file\npetitions in the same case asserting property interests, an order dismissing a\npetition for an ancillary proceeding is not appealable until the district court\nhas ruled on all the petitions “unless the court determines that there is no just\nreason for delay.” FED. R. CRIM. P. 32.2(c)(3).\n\n The district court denied Huma’s motions to reconsider its denial of her\n\n\n 1 United States v. Corpus, 491 F.3d 205, 208 (5th Cir. 2007); see also id. at 208–09\n(evaluating a motion for summary judgment in an ancillary proceeding according to the\nstandard of review of Federal Rule of Civil Procedure 56).\n 2 See United States v. Stone, 304 F. App’x 334, 336 (5th Cir. 2008) (per curiam) (ex-\nplaining that a motion to dismiss a petition for an ancillary proceeding is reviewed using the\nsame standard as under Rule 12); Corpus, 491 F.3d at 208–09 (citing favorably Pacheco v.\nSerendensky, 393 F.3d 348 (2d Cir. 2004), which reviewed a motion to dismiss a petition for\nan ancillary proceeding under the Federal Rules of Civil Procedure).\n 4\n\f Case: 18-20131 Document: 00515033470 Page: 5 Date Filed: 07/15/2019\n\n\n\n No. 18-20131\npetition for an ancillary hearing on February 2, 2018, and denied Salahuddin’s\nmotion for an ancillary hearing on February 12. Huma and Salahuddin filed\ntheir notices of appeal 11 days (February 23) and 15 days (February 27), re-\nspectively, after the denial of Salahuddin’s petition. Thus, both appeals were\ntimely under the civil deadline. See FED. R. APP. P. 4(a)(1)(A). 3\n\n IV.\n A.\n Huma challenges the denial of her petition for an ancillary hearing,\nasserting that the court erroneously refused to consider her “rights in the\nseized cash and electronic devices.” In her petition, Huma alleged that Babar\nowed money to a third party who had given Babar money to purchase laptops\nand ship them to him. Huma agreed to pay Babar’s debt and did so by bor-\nrowing money. Throughout this time, Babar “repeatedly told” Huma “that he\nwill be able to convince the court that everything was seized illegally and as\nsoon as he gets all property back he will immediately ‘reimburse [Huma] the\npromised amount and the additional interest paid on the loan.’”\n\n Huma maintains that these facts either “establish[ed] a lien” in her favor\non the cash and devices or made her a “bonafide purchaser” of a right to them.\nShe further asserts that “at no point” did she agree to be an unsecured creditor\nof Babar’s. Huma’s claims fail. Her petition for an ancillary hearing does not\nstate a claim under 21 U.S.C. § 853(n).\n\n\n\n\n 3 Moreover, the government invokes the civil notice-of-appeal deadline, thereby for-\nfeiting the ability to contend that the criminal deadline governs. See United States v. Collins,\n712 F. App’x 392, 395 (5th Cir. 2017) (per curiam) (“[T]he Government’s brief expressly stated\nthat this Court could consider this issue, forfeiting any untimeliness argument with respect\nto the motion to reconsider.”); see also United States v. Martinez, 496 F.3d 387, 388–89 (5th\nCir. 2007) (per curiam) (concluding that the criminal notice-of-appeal deadline is not juris-\ndictional and may be waived).\n 5\n\f Case: 18-20131 Document: 00515033470 Page: 6 Date Filed: 07/15/2019\n\n\n\n No. 18-20131\n At all relevant times. the cash and devices were located in Texas.\nTherefore, whether Huma held a valid security interest in that property is gov-\nerned by Texas law. TEX. BUS. & COM. CODE § 9.301(1)–(3). Where collateral\nis not in the possession or control of a purported secured party, a security\ninterest cannot arise unless the parties execute a written security agreement,\nsigned by the debtor, that contains a description of the collateral. See id.\n§ 9.203(b)(3).\n\n Huma has not demonstrated the existence of the necessary written\nsecurity agreement to establish her as a secured creditor with a lien on the\ncash or devices. She did not attach a written, signed agreement to her petition\nfor an ancillary hearing. Her petition asserted only an unsecured interest in\nthe cash and devices, so she is merely an unsecured creditor.\n\n Huma’s status as an unsecured creditor determines her claims. Unse-\ncured creditors generally lack standing to contest forfeiture of their debtor’s\nproperty. See United States v. Reckmeyer, 836 F.2d 200, 205–06 (4th Cir. 1987).\nTo prevail in a § 853(n) ancillary proceeding, a third-party petitioner must pos-\nsess, or be a bona fide purchaser for value of, “a legal interest in property which\nhas been ordered forfeited to the United States.” 21 U.S.C. § 853(n)(2). An\nunsecured creditor cannot establish a legal right to “any particular piece of\nproperty” in the debtor’s estate, see Corpus, 491 F.3d at 211, and therefore\ncannot satisfy § 853(n)’s requirement “that the interest exist in the property\nsubject to forfeiture,” Reckmeyer, 836 F.2d at 205.\n\n For the same reasons that Huma cannot establish a secured interest in\nthe specific cash or devices, she also cannot demonstrate that she is a “bona\nfide purchaser for value” of that property. She alleges no facts to support that\nshe was a bona fide purchaser of the specific seized property. Accordingly, the\ndistrict court properly rejected Huma’s petition for an ancillary hearing.\n\n 6\n\f Case: 18-20131 Document: 00515033470 Page: 7 Date Filed: 07/15/2019\n\n\n\n No. 18-20131\n B.\n Salahuddin likewise challenges the denial of his petition for an ancillary\nhearing, averring that the court “erred in determining that [he] is an unse-\ncured creditor.” In his petition, Salahuddin claims that he and Babar executed\na Collateralized Inventory Loan on August 1, 2014, which he attached as\nsupporting evidence. The loan agreement provides that Salahuddin will lend\nBabar up to $400,000 “for the purchase of INVENTORY i.e. (i) Cell phones,\n(ii) IPads, (iii) Mac Books (iv) Computers and (v) other electronic devices.” It\nalso states that Babar “grants a first priority lien on, and security interest in\nand to all of” that inventory, “whether now owned or hereafter acquired, now\nexisting or hereafter created and wherever located” to Salahuddin.\n\n Salahuddin asserts on these facts that “any funds or inventory . . . seized\nfrom . . . Babar . . . [is] under lien,” so he is a secured creditor with a priority\nlien on the cash and devices. Though Salahuddin’s claims regarding the cash\ndo not establish that he has an interest in that property superior to that of the\nUnited States, he has alleged sufficient facts at this stage to establish a facially\nvalid third-party claim to the devices. He is entitled to an ancillary proceeding\nregarding his interest therein.\n\n First, Salahuddin repeatedly invokes forfeiture terms and procedures in\nmaintaining that he has an interest in the cash. The cash, however, was not\nforfeited. After being seized from Babar, it was held in the possession of the\nU.S. Marshals Service and then ordered to be turned over and applied to\nBabar’s restitution debt under the United States’ restitution lien that arose\nunder 18 U.S.C. § 3613(c) on the entry of judgment. Salahuddin contends that\nhe properly alleged a security interest in the district court and asserts that\n“first in time is first in right,” implying that his interest in the cash is senior,\nbut this line of reasoning misses the mark. The cash was not forfeited, and\n\n 7\n\f Case: 18-20131 Document: 00515033470 Page: 8 Date Filed: 07/15/2019\n\n\n\n No. 18-20131\nthus the procedures in § 853(n) and Rule 32.2(c) are inapplicable. Salahuddin\npresents no persuasive allegation that he has a priority claim to the cash senior\nto the restitution lien of the United States.\n\n Nevertheless, second, Salahuddin has adequately alleged a secured\ninterest in the devices. His claims in his petition, as supported by the attached\nCollateralized Inventory Loan, support that he has a security interest in those\ndevices because the loan agreement (1) exchanged value, (2) indicated that\nBabar had rights in the electronic devices he was purchasing, and (3) de-\nscribed, in a written agreement purporting to bear Babar’s signature, the\nproperty serving as collateral. See TEX. BUS. & COM. CODE § 9.203(b). Thus,\nSalahuddin’s petition contained sufficient facts to assert a facially plausible\nclaim that he had a legal interest in the devices. See 21 U.S.C. § 853(n)(6).\n\n We therefore VACATE the denial of Salahuddin’s petition for an ancil-\nlary hearing as to the devices and REMAND for further proceedings as needed.\nIn all other respects, the judgment is AFFIRMED. We express no limit on\nwhat actions the district court can take on remand or on the ultimate merits\nof any issue.\n\n\n\n\n 8\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Babar Javed BUTT, Defendant, and Huma Butt; Tajuddin Salahuddin, Appellants.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-20131 Document: 00515033470 Page: 1 Date Filed: 07/15/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 18-20131 FILED\\n July 15, 2019\\n Lyle W. Cayce\\n Clerk\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff–Appellee,\\n\\nversus\\n\\nBABAR JAVED BUTT,\\n\\n Defendant,\\n\\nand\\n\\nHUMA BUTT; TAJUDDIN SALAHUDDIN,\\n\\n Appellants.\\n\\n\\n\\n Appeals from the United States District Court\\n for the Southern District of Texas\\n\\n\\n\\n\\nBefore HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.\\nJERRY E. SMITH, Circuit Judge:\\n\\n Huma Butt (“Huma”) and Tajuddin Salahuddin, pro se, asserted inter-\\nests in a convicted criminal defendant’s property that was subject to criminal\\nforfeiture and criminal restitution. The district court denied their motions for\\n\\f Case: 18-20131 Document: 00515033470 Page: 2 Date Filed: 07/15/2019\\n\\n\\n\\n No. 18-20131\\nancillary hearings and return of property. They appeal, challenging the rejec-\\ntion of their petitions for ancillary hearings and asserting their interests in the\\ncriminal defendant’s property. We affirm in part, vacate in part, and remand.\\n\\n I.\\n Babar Javed Butt (“Babar”) was convicted of mail fraud. During the\\ncriminal investigation, the government seized from Babar $91,267 (the “cash”)\\nand 452 electronic devices (the “devices”) consisting of tablets, phones, and\\ncomputers. The cash was transferred to the U.S. Marshals Service. The dis-\\ntrict court sentenced Babar, in part, to $287,679 in restitution and ordered him\\nto forfeit $287,679. The court also granted the government’s motions to forfeit\\n360 of the devices to the United States in partial satisfaction of the forfeiture\\norder and to turn over the cash in partial satisfaction of Babar’s restitution\\ndebt.\\n\\n Huma and Salahuddin, not parties to the criminal proceeding, asserted\\ninterests in the cash and electronic devices, filing individual pro se motions\\nseeking ancillary hearings and the return of property. Huma, Babar’s sister,\\nclaimed that she had a “priority ownership” in and was a “bonafide purchaser”\\nof the cash and devices because she had paid off a debt that Babar owed to a\\nthird party for lending him money to purchase electronic devices. The district\\ncourt denied her motion because she was not a party to the criminal\\nproceeding.\\n\\n Salahuddin contended that he was a secured creditor of Babar’s and that\\nhe possessed a lien superior to that of the United States on the cash and devices\\nbecause he had executed a Collateralized Inventory Loan with Babar that\\nplaced that property “under lien.” The court also denied Salahuddin’s motion\\nbecause, taking his allegations as true, he was “at best” “an unsecured creditor”\\nof the cash and devices, so “the United States ha[d] a superior claim to the\\n 2\\n\\f Case: 18-20131 Document: 00515033470 Page: 3 Date Filed: 07/15/2019\\n\\n\\n\\n No. 18-20131\\nassets.”\\n\\n On appeal, Huma and Salahuddin challenge the denial of their motions\\nasserting their interests in the cash and devices and seeking ancillary hear-\\nings. Huma contends that she has a “superior right because she is a bonafide\\nlien holder” of the cash and devices for having paid Babar’s debt to the third\\nparty. Salahuddin maintains that the Collateralized Inventory Loan estab-\\nlishes him as Babar’s secured creditor with a lien superior to that of the United\\nStates on the cash and devices.\\n\\n II.\\n A third party “asserting a legal interest in property which has been\\nordered forfeited” may “petition the court for a hearing to adjudicate the valid-\\nity of his alleged interest in the property.” 21 U.S.C. § 853(n)(2)–(3); see also\\nFED. R. CRIM. P. 32.2(c). When “a third party files a petition asserting an inter-\\nest” in property that the government seeks to forfeit, the district “court must\\nconduct an ancillary proceeding.” FED. R. CRIM. P. 32.2(c)(1). A petitioner has\\nthe burden of proving “by a preponderance of the evidence that” (1) “legal right,\\ntitle, or interest” in the forfeited property “was vested in the petitioner rather\\nthan the defendant” or that petitioner’s “legal right, title, or interest” was\\n“superior” to that “of the defendant at the time of the commission of the acts\\nwhich gave rise to the forfeiture,” or (2) “the petitioner is a bona fide purchaser\\nfor value of the right, title, or interest in the property and was at the time of\\npurchase reasonably without cause to believe that the property was subject to\\nforfeiture.” 21 U.S.C. § 853(n)(6).\\n\\n “In [an] ancillary proceeding, the court may, on motion, dismiss the peti-\\ntion for lack of standing, for failure to state a claim, or for any other lawful\\nreason.” FED. R. CRIM. P. 32.2(c)(1)(A). “For purposes of the motion, the facts\\nset forth in the petition are assumed to be true.” Id. “Although . . . ancillary\\n 3\\n\\f Case: 18-20131 Document: 00515033470 Page: 4 Date Filed: 07/15/2019\\n\\n\\n\\n No. 18-20131\\nproceeding[s] arise[] in the context of criminal forfeiture, [they] closely resem-\\nble[] . . . civil proceeding[s].” 1 Furthermore, the advisory committee’s notes to\\nRule 32.2 state that courts should follow the Federal Rules of Civil Procedure\\nfor “fundamental areas” of ancillary proceedings, such as “motion[s] to dis-\\nmiss.” FED. R. CRIM. P. 32.2 advisory committee’s note to 2000 adoption.\\n\\n Consequently, this court applies the standard of review under Federal\\nRule of Civil Procedure 12 to the pleading-stage dismissal of a petition for an\\nancillary proceeding. 2 That standard of review states that this court “review[s]\\nde novo a district court’s grant or denial of a Rule 12(b)(6) motion to dismiss”\\nfor failure to state a claim, “accepting all well-pleaded facts as true and viewing\\nthose facts in the light most favorable to the” nonmoving party. Groden v. City\\nof Dallas, 826 F.3d 280, 283 (5th Cir. 2016) (citation omitted).\\n\\n III.\\n As an initial matter, Huma’s and Salahuddin’s appeals are timely be-\\ncause the deadline for a civil notice of appeal applies. Ancillary proceedings\\nare civil in nature. See Corpus, 491 F.3d at 208. Where multiple parties file\\npetitions in the same case asserting property interests, an order dismissing a\\npetition for an ancillary proceeding is not appealable until the district court\\nhas ruled on all the petitions “unless the court determines that there is no just\\nreason for delay.” FED. R. CRIM. P. 32.2(c)(3).\\n\\n The district court denied Huma’s motions to reconsider its denial of her\\n\\n\\n 1 United States v. Corpus, 491 F.3d 205, 208 (5th Cir. 2007); see also id. at 208–09\\n(evaluating a motion for summary judgment in an ancillary proceeding according to the\\nstandard of review of Federal Rule of Civil Procedure 56).\\n 2 See United States v. Stone, 304 F. App’x 334, 336 (5th Cir. 2008) (per curiam) (ex-\\nplaining that a motion to dismiss a petition for an ancillary proceeding is reviewed using the\\nsame standard as under Rule 12); Corpus, 491 F.3d at 208–09 (citing favorably Pacheco v.\\nSerendensky, 393 F.3d 348 (2d Cir. 2004), which reviewed a motion to dismiss a petition for\\nan ancillary proceeding under the Federal Rules of Civil Procedure).\\n 4\\n\\f Case: 18-20131 Document: 00515033470 Page: 5 Date Filed: 07/15/2019\\n\\n\\n\\n No. 18-20131\\npetition for an ancillary hearing on February 2, 2018, and denied Salahuddin’s\\nmotion for an ancillary hearing on February 12. Huma and Salahuddin filed\\ntheir notices of appeal 11 days (February 23) and 15 days (February 27), re-\\nspectively, after the denial of Salahuddin’s petition. Thus, both appeals were\\ntimely under the civil deadline. See FED. R. APP. P. 4(a)(1)(A). 3\\n\\n IV.\\n A.\\n Huma challenges the denial of her petition for an ancillary hearing,\\nasserting that the court erroneously refused to consider her “rights in the\\nseized cash and electronic devices.” In her petition, Huma alleged that Babar\\nowed money to a third party who had given Babar money to purchase laptops\\nand ship them to him. Huma agreed to pay Babar’s debt and did so by bor-\\nrowing money. Throughout this time, Babar “repeatedly told” Huma “that he\\nwill be able to convince the court that everything was seized illegally and as\\nsoon as he gets all property back he will immediately ‘reimburse [Huma] the\\npromised amount and the additional interest paid on the loan.’”\\n\\n Huma maintains that these facts either “establish[ed] a lien” in her favor\\non the cash and devices or made her a “bonafide purchaser” of a right to them.\\nShe further asserts that “at no point” did she agree to be an unsecured creditor\\nof Babar’s. Huma’s claims fail. Her petition for an ancillary hearing does not\\nstate a claim under 21 U.S.C. § 853(n).\\n\\n\\n\\n\\n 3 Moreover, the government invokes the civil notice-of-appeal deadline, thereby for-\\nfeiting the ability to contend that the criminal deadline governs. See United States v. Collins,\\n712 F. App’x 392, 395 (5th Cir. 2017) (per curiam) (“[T]he Government’s brief expressly stated\\nthat this Court could consider this issue, forfeiting any untimeliness argument with respect\\nto the motion to reconsider.”); see also United States v. Martinez, 496 F.3d 387, 388–89 (5th\\nCir. 2007) (per curiam) (concluding that the criminal notice-of-appeal deadline is not juris-\\ndictional and may be waived).\\n 5\\n\\f Case: 18-20131 Document: 00515033470 Page: 6 Date Filed: 07/15/2019\\n\\n\\n\\n No. 18-20131\\n At all relevant times. the cash and devices were located in Texas.\\nTherefore, whether Huma held a valid security interest in that property is gov-\\nerned by Texas law. TEX. BUS. & COM. CODE § 9.301(1)–(3). Where collateral\\nis not in the possession or control of a purported secured party, a security\\ninterest cannot arise unless the parties execute a written security agreement,\\nsigned by the debtor, that contains a description of the collateral. See id.\\n§ 9.203(b)(3).\\n\\n Huma has not demonstrated the existence of the necessary written\\nsecurity agreement to establish her as a secured creditor with a lien on the\\ncash or devices. She did not attach a written, signed agreement to her petition\\nfor an ancillary hearing. Her petition asserted only an unsecured interest in\\nthe cash and devices, so she is merely an unsecured creditor.\\n\\n Huma’s status as an unsecured creditor determines her claims. Unse-\\ncured creditors generally lack standing to contest forfeiture of their debtor’s\\nproperty. See United States v. Reckmeyer, 836 F.2d 200, 205–06 (4th Cir. 1987).\\nTo prevail in a § 853(n) ancillary proceeding, a third-party petitioner must pos-\\nsess, or be a bona fide purchaser for value of, “a legal interest in property which\\nhas been ordered forfeited to the United States.” 21 U.S.C. § 853(n)(2). An\\nunsecured creditor cannot establish a legal right to “any particular piece of\\nproperty” in the debtor’s estate, see Corpus, 491 F.3d at 211, and therefore\\ncannot satisfy § 853(n)’s requirement “that the interest exist in the property\\nsubject to forfeiture,” Reckmeyer, 836 F.2d at 205.\\n\\n For the same reasons that Huma cannot establish a secured interest in\\nthe specific cash or devices, she also cannot demonstrate that she is a “bona\\nfide purchaser for value” of that property. She alleges no facts to support that\\nshe was a bona fide purchaser of the specific seized property. Accordingly, the\\ndistrict court properly rejected Huma’s petition for an ancillary hearing.\\n\\n 6\\n\\f Case: 18-20131 Document: 00515033470 Page: 7 Date Filed: 07/15/2019\\n\\n\\n\\n No. 18-20131\\n B.\\n Salahuddin likewise challenges the denial of his petition for an ancillary\\nhearing, averring that the court “erred in determining that [he] is an unse-\\ncured creditor.” In his petition, Salahuddin claims that he and Babar executed\\na Collateralized Inventory Loan on August 1, 2014, which he attached as\\nsupporting evidence. The loan agreement provides that Salahuddin will lend\\nBabar up to $400,000 “for the purchase of INVENTORY i.e. (i) Cell phones,\\n(ii) IPads, (iii) Mac Books (iv) Computers and (v) other electronic devices.” It\\nalso states that Babar “grants a first priority lien on, and security interest in\\nand to all of” that inventory, “whether now owned or hereafter acquired, now\\nexisting or hereafter created and wherever located” to Salahuddin.\\n\\n Salahuddin asserts on these facts that “any funds or inventory . . . seized\\nfrom . . . Babar . . . [is] under lien,” so he is a secured creditor with a priority\\nlien on the cash and devices. Though Salahuddin’s claims regarding the cash\\ndo not establish that he has an interest in that property superior to that of the\\nUnited States, he has alleged sufficient facts at this stage to establish a facially\\nvalid third-party claim to the devices. He is entitled to an ancillary proceeding\\nregarding his interest therein.\\n\\n First, Salahuddin repeatedly invokes forfeiture terms and procedures in\\nmaintaining that he has an interest in the cash. The cash, however, was not\\nforfeited. After being seized from Babar, it was held in the possession of the\\nU.S. Marshals Service and then ordered to be turned over and applied to\\nBabar’s restitution debt under the United States’ restitution lien that arose\\nunder 18 U.S.C. § 3613(c) on the entry of judgment. Salahuddin contends that\\nhe properly alleged a security interest in the district court and asserts that\\n“first in time is first in right,” implying that his interest in the cash is senior,\\nbut this line of reasoning misses the mark. The cash was not forfeited, and\\n\\n 7\\n\\f Case: 18-20131 Document: 00515033470 Page: 8 Date Filed: 07/15/2019\\n\\n\\n\\n No. 18-20131\\nthus the procedures in § 853(n) and Rule 32.2(c) are inapplicable. Salahuddin\\npresents no persuasive allegation that he has a priority claim to the cash senior\\nto the restitution lien of the United States.\\n\\n Nevertheless, second, Salahuddin has adequately alleged a secured\\ninterest in the devices. His claims in his petition, as supported by the attached\\nCollateralized Inventory Loan, support that he has a security interest in those\\ndevices because the loan agreement (1) exchanged value, (2) indicated that\\nBabar had rights in the electronic devices he was purchasing, and (3) de-\\nscribed, in a written agreement purporting to bear Babar’s signature, the\\nproperty serving as collateral. See TEX. BUS. & COM. CODE § 9.203(b). Thus,\\nSalahuddin’s petition contained sufficient facts to assert a facially plausible\\nclaim that he had a legal interest in the devices. See 21 U.S.C. § 853(n)(6).\\n\\n We therefore VACATE the denial of Salahuddin’s petition for an ancil-\\nlary hearing as to the devices and REMAND for further proceedings as needed.\\nIn all other respects, the judgment is AFFIRMED. We express no limit on\\nwhat actions the district court can take on remand or on the ultimate merits\\nof any issue.\\n\\n\\n\\n\\n 8\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2995,"cells":{"id":{"kind":"number","value":4639603,"string":"4,639,603"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Rosie Diggles"},"decision_date":{"kind":"string","value":"2019-07-15"},"docket_number":{"kind":"string","value":"18-40521"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before STEWART, Chief Judge, JONES, SMITH, DENNIS, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"010combined\", \"text\": \"IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n _____________________ United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-40521\\n July 15, 2019\\n _____________________\\n Lyle W. Cayce\\n Clerk\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee\\nv.\\n\\nROSIE DIGGLES; WALTER DIGGLES; ANITA DIGGLES,\\n\\n Defendants - Appellants\\n\\n __________________________\\n\\n Appeals from the United States District Court\\n for the Eastern District of Texas\\n __________________________\\n\\n\\n (Opinion June 26, 2019, 5 Cir., 2019, ___ Fd.3rd ___ , 2019 WL 2608829)\\n\\nBefore STEWART, Chief Judge, JONES, SMITH, DENNIS, OWEN, ELROD,\\nSOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO,\\nDUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.\\n\\nBY THE COURT:\\n\\n A majority of the circuit judges in regular active service and not\\ndisqualified having voted in favor, on the Court’s own motion, to rehear this\\ncase en banc,\\n IT IS ORDERED that this cause shall be reheard by the court en banc\\nwith oral argument on a date hereafter to be fixed. The Clerk will specify a\\nbriefing schedule for the filing of supplemental briefs.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4416856/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"STEWART"},"judge2":{"kind":"string","value":"JONES"},"judge3":{"kind":"string","value":"SMITH"},"exactly_three_caps":{"kind":"number","value":2,"string":"2"},"extra_judges":{"kind":"string","value":"DENNIS; OWEN; ELROD; SOUTHWICK; HAYNES; GRAVES; HIGGINSON; COSTA; WILLETT; HO; DUNCAN; ENGELHARDT; OLDHAM"},"judge_designations":{"kind":"string","value":"{\"STEWART\": \", Chief\", \"JONES\": \", Circuit\", \"SMITH\": \", Circuit\", \"DENNIS\": \", Circuit\", \"OWEN\": \", Circuit\", \"ELROD\": \", Circuit\", \"SOUTHWICK\": \", Circuit\", \"HAYNES\": \", Circuit\", \"GRAVES\": \", Circuit\", \"HIGGINSON\": \", Circuit\", \"COSTA\": \", Circuit\", \"WILLETT\": \", Circuit\", \"HO\": \", Circuit\", \"DUNCAN\": \", Circuit\", \"ENGELHARDT\": \", Circuit\", \"OLDHAM\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4639603/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Rosie Diggles\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n _____________________ United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 18-40521\n July 15, 2019\n _____________________\n Lyle W. Cayce\n Clerk\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee\nv.\n\nROSIE DIGGLES; WALTER DIGGLES; ANITA DIGGLES,\n\n Defendants - Appellants\n\n __________________________\n\n Appeals from the United States District Court\n for the Eastern District of Texas\n __________________________\n\n\n (Opinion June 26, 2019, 5 Cir., 2019, ___ Fd.3rd ___ , 2019 WL 2608829)\n\nBefore STEWART, Chief Judge, JONES, SMITH, DENNIS, OWEN, ELROD,\nSOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO,\nDUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.\n\nBY THE COURT:\n\n A majority of the circuit judges in regular active service and not\ndisqualified having voted in favor, on the Court’s own motion, to rehear this\ncase en banc,\n IT IS ORDERED that this cause shall be reheard by the court en banc\nwith oral argument on a date hereafter to be fixed. The Clerk will specify a\nbriefing schedule for the filing of supplemental briefs.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Rosie Diggles\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nIN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n _____________________ United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-40521\\n July 15, 2019\\n _____________________\\n Lyle W. Cayce\\n Clerk\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee\\nv.\\n\\nROSIE DIGGLES; WALTER DIGGLES; ANITA DIGGLES,\\n\\n Defendants - Appellants\\n\\n __________________________\\n\\n Appeals from the United States District Court\\n for the Eastern District of Texas\\n __________________________\\n\\n\\n (Opinion June 26, 2019, 5 Cir., 2019, ___ Fd.3rd ___ , 2019 WL 2608829)\\n\\nBefore STEWART, Chief Judge, JONES, SMITH, DENNIS, OWEN, ELROD,\\nSOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO,\\nDUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.\\n\\nBY THE COURT:\\n\\n A majority of the circuit judges in regular active service and not\\ndisqualified having voted in favor, on the Court’s own motion, to rehear this\\ncase en banc,\\n IT IS ORDERED that this cause shall be reheard by the court en banc\\nwith oral argument on a date hereafter to be fixed. The Clerk will specify a\\nbriefing schedule for the filing of supplemental briefs.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2996,"cells":{"id":{"kind":"number","value":8444032,"string":"8,444,032"},"name":{"kind":"string","value":"UNITED STATES of America v. Rosie DIGGLES Walter Diggles Anita Diggles"},"name_abbreviation":{"kind":"string","value":"United States v. Diggles"},"decision_date":{"kind":"string","value":"2019-07-15"},"docket_number":{"kind":"string","value":"No. 18-40521"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415469/\"}]}"},"judge1":{"kind":"string","value":""},"judge2":{"kind":"string","value":""},"judge3":{"kind":"string","value":""},"exactly_three_caps":{"kind":"number","value":0,"string":"0"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8444032/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America v. Rosie DIGGLES Walter Diggles Anita Diggles\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America v. Rosie DIGGLES Walter Diggles Anita Diggles\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2997,"cells":{"id":{"kind":"number","value":4639928,"string":"4,639,928"},"name":{"kind":"string","value":"APACHE DEEPWATER, L.L.C., Plaintiff - Appellee v. W&T OFFSHORE, INCORPORATED, Defendant - Appellant"},"name_abbreviation":{"kind":"string","value":"Apache Corporation v. W & T Offshore, Incorporated"},"decision_date":{"kind":"string","value":"2019-07-16"},"docket_number":{"kind":"string","value":"17-20599"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Higginbotham, Graves, Willett\", \"parties\": \"\", \"opinions\": [{\"author\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-20599 Document: 00515035583 Page: 1 Date Filed: 07/16/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n United States Court of Appeals\\n\\n No. 17-20599 Fifth Circuit\\n\\n FILED\\n July 16, 2019\\nAPACHE DEEPWATER, L.L.C., Lyle W. Cayce\\n Clerk\\n Plaintiff - Appellee\\n\\nv.\\n\\nW&T OFFSHORE, INCORPORATED,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.\\nPATRICK E. HIGGINBOTHAM, Circuit Judge:\\n This dispute arises from a successful plugging and abandonment\\noperation of three offshore oil and gas wells in the Mississippi Canyon area of\\nthe Gulf of Mexico. Apache Deepwater, LLC performed the operation and seeks\\npayment from its non-operator partner, W&T Offshore, Inc. A jury awarded\\n$43.2 million to Apache for W&T’s breach of the Joint Operating Agreement.\\nW&T challenges the district court’s application of the Louisiana Civil Code and\\ninterpretation of the contract. Alternatively, W&T contends that it is entitled\\nto an offset in damages because of Apache’s bad faith. Finding no error, we\\naffirm.\\n\\f Case: 17-20599 Document: 00515035583 Page: 2 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\n I.\\n In May 1999, Apache and W&T’s predecessors entered into a Joint\\nOperating Agreement (“JOA”) that governed the operation of three offshore\\ndeepwater oil and gas wells (the “Wells”) in the Mississippi Canyon area of the\\nGulf of Mexico. This dispute arises from operator Apache’s plugging and\\nabandonment (“P&A”) of the Wells.\\n In 2012, Apache attempted to P&A the Wells with an intervention vessel\\ncalled Uncle John with the consent of W&T, but that operation was\\nunsuccessful. Following that failure, Apache contracted to use a different\\nintervention vessel, the Helix-534 (“Helix”). An internal figure by Apache\\nestimated that the cost to P&A the Wells with the Helix was approximately\\n$56,350,000. In June 2014, W&T contacted Apache to set up a status\\nconference in July discussing the P&A operation, confirming that W&T knew\\n“that the Helix 534 is contracted for the project.” At that meeting, W&T learned\\nthat Apache proposed using two drilling rigs for the project instead of the Helix,\\nthe Ocean Onyx (“Onyx”) and Ensco-8505 (“Ensco”).\\n W&T and Apache offered to the jury competing explanations for the\\nswitch from the Helix to the Onyx and Ensco drilling rigs. By W&T’s telling,\\nApache’s decision to use the Onyx and Ensco was a simple matter of cost: W&T\\ncontends that Apache entered into a contract for the two drilling rigs for the\\npurpose of drilling new deepwater wells, but abandoned that project in 2014\\nand was left with exorbitant stacking costs for the idle rigs (approximately\\n$1,000,000 per day). W&T asserts that Apache’s decision to use the rigs instead\\nof the Helix was an attempt to recoup on the costs of contracting for the unused\\nrigs because Apache had been unsuccessful in unloading the rigs onto another\\noperator. Prior to the July meeting, Apache prepared estimates for the use of\\nthe rigs which totaled between $81 and $104 million. W&T points to an\\ninternal presentation in which Apache was weighing the costs of using the\\n 2\\n\\f Case: 17-20599 Document: 00515035583 Page: 3 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\nHelix against the rigs and determining that with the stacking costs Apache\\nwas paying for the idle rigs, the use of the rigs would be cheaper because the\\ncost would be split with W&T. Apache cancelled the Helix contract. W&T\\nclaims that although Apache purported to rely on written evaluations\\nexplaining the technical reasons the rigs were necessary (including that the\\nHelix no longer complied with government regulations), Apache refused to\\nprovide those analyses to W&T.\\n Apache rejects W&T’s economic explanation and argues that the Helix\\nwas not a safe option after the Deepwater Horizon spill and the government\\nregulators would not have approved the Helix for the P&A operations. Apache\\nput on evidence that it had discussed the risks of using the Helix with W&T,\\nand demonstrated that technical difficulties posed by the Wells would make\\nthe “open water” operations of the Helix environmentally risky, that the Wells\\nwere “high risk,” and that the drilling rigs were able to conduct the P&A\\noperations with safeguards mitigating the risk of oil spills. Apache also claimed\\nthat the federal Bureau of Safety and Environmental Enforcement (“BSEE”)\\nadvised Apache that it was no longer approving the type of open-water\\noperations that Helix would need to perform to complete the P&A task. In\\nApache’s version, W&T began “actively resisting” the P&A plan using the rigs\\nbecause the Helix operation would be far cheaper for W&T and W&T was\\ndisregarding the environmental risk. 1 Apache argued to the jury that W&T\\nignored the fact that Helix would have had operational issues that would have\\n\\n\\n\\n\\n 1 Apache points to an internal e-mail from W&T’s vice president Cliff Williams in\\nwhich he wrote: “I’d like to determine options should we not agree with operators plan and\\nbelieve we can perform well abandonments cheaper. Can we non-consent and take over\\nabandonment operations with Apache obligated to pay their share of estimated abandonment\\ncosts?”\\n 3\\n\\f Case: 17-20599 Document: 00515035583 Page: 4 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\nincreased the costs of the operation past the initial estimates and that the use\\nof the rigs was “reasonably necessary.”\\n Amid their dispute over the appropriate intervention vessel, Apache\\nsought W&T’s approval for use of the rigs through an Authorizations for\\nExpenditure (“AFE”), but W&T decided not to approve the use of the rigs, 2 and\\nrejected two other requests for AFEs. Apache decided to use the rigs for the\\nP&A and the work was successfully completed in February 2015 for a total cost\\nof $139,900,000. Apache billed W&T for its contractual 49% share, or\\n$68,570,000. W&T decided to pay $24,860,640, which represented 49% of the\\nestimate for use of the Helix, contending that “Apache’s insistence on using a\\ndrilling rig unnecessarily and unreasonably increased the costs of this work,”\\nand determining that it was not obligated to pay the full billed amount because\\nit had not approved the AFEs.\\n Apache sued for breach of contract in Texas state court in December 2014\\nand the case was removed by W&T in January 2015. Prior to trial, W&T moved\\nfor summary judgment on Apache’s breach of contract claim, arguing that the\\nJOA was unambiguous in requiring the operator (Apache) to obtain an\\napproved AFE before expending over $200,000. The parties’ argument turned\\non the reading of two provisions in the JOA: § 6.2 governing authorizations for\\nexpenditures and § 18.4 governing abandonment operations required by the\\ngovernment:\\n 6.2. Authorization for Expenditure: The Operator shall not\\n make any single expenditure or undertake any activity or\\n\\n\\n 2 In its response, W&T stated: “We believe Apache, as a prudent operator, has an\\nobligation to conduct the operation in a cost effective and safe manner in compliance with all\\ngovernmental regulations. We do not understand why Apache continues to advocate the use\\nof the Ensco 8505 rig when it is clear that an intervention vessel could safely perform the\\nabandonment work at a much lower cost. . . . We do not believe W&T should be obligated to\\npay the additional charges arising from the use of the Ensco rig when other less expensive\\noptions are available.”\\n 4\\n\\f Case: 17-20599 Document: 00515035583 Page: 5 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\n operation costing Two Hundred Thousand Dollars ($200,000) or\\n more, unless an AFE has either (1) been included in a proposal for\\n an activity or operation and is approved by the Participating\\n Parties through their Election to participate in the activity or\\n operation, or (2) received the approval of the Parties as a General\\n Matter. When executed by a party, an AFE grants the Operator\\n the authority to commit or expend funds on the activity or\\n operation in accordance with this Agreement for the account of the\\n Participating Parties. . . .\\n\\n 18.4. Abandonment Operations Requirement by\\n Governmental Authority: The Operator shall conduct the\\n abandonment and removal of any well, Production System or\\n Facilities required by a governmental authority, and the Costs,\\n risks and net proceeds will be shared by the Participating Parties\\n in such well, Production System or Facilities according to their\\n Participating Interest Share.\\n\\n The district court denied W&T’s motion for summary judgment and\\ndetermined that the interaction of the provisions in the JOA was ambiguous,\\ncreating an issue of fact as to the “parties’ intent on the applicability of § 6.2 to\\na government-mandated plugging and abandonment operation governed by\\n§ 18.4.” The case proceeded to trial and the jury made five findings:\\n (1) Did W&T fail to comply with the Contract by failing to pay its\\n proportionate share of the costs to plug and abandon the MC 674 wells?\\n Yes.\\n (2) What sum of money, if any, would compensate Apache for W&T’s\\n failure to pay its proportionate share of costs to plug and abandon the\\n MC 674 wells? $43,214,515.83.\\n (3) Was Apache required to obtain W&T’s approval under Section 6.2 of\\n the Contract before Apache plugged and abandoned the MC 674 wells as\\n required under Section 18.4 of the Contract? No.\\n\\n\\n\\n\\n 5\\n\\f Case: 17-20599 Document: 00515035583 Page: 6 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\n (4) Did Apache act in bad faith, thereby causing W&T to not comply with\\n the contract? Yes.\\n (5) By what amount, if any, should the amount you found in response to\\n Jury Question No. 2 be offset? $17,000,000.\\nFollowing trial, the court entered its order and final judgment, determining\\nthat the jury’s “bad faith” finding in Question 4 did not preclude Apache’s\\nrecovery for breach of contract under Louisiana law and holding that W&T was\\nnot entitled to an offset under Louisiana law. The district court also denied\\nW&T’s motion for a new trial or remittitur and renewed motion for judgment\\nas a matter of law. This appeal followed.\\n II.\\n This court reviews the denial of a Rule 50(b) renewed motion for\\njudgment as a matter of law de novo, “but our standard of review with respect\\nto a jury verdict is especially deferential.” 3 A party is only entitled to judgment\\nas a matter of law on an issue where no reasonable jury would have had a\\nlegally sufficient evidentiary basis to find otherwise. 4 In evaluating the\\nevidence, this court “credit[s] the non-moving party’s evidence and disregard[s]\\nall evidence favorable to the moving party that the jury is not required to\\nbelieve.” 5 This court also has jurisdiction “to hear an appeal of the district\\ncourt’s legal conclusions in denying summary judgment, but only if it is\\nsufficiently preserved in a Rule 50 motion.” 6\\n “A district court’s resolution of a motion for new trial is reviewed for\\nabuse of discretion, and ‘[t]he district court abuses its discretion by denying a\\n\\n\\n\\n 3 Olibas v. Barclay, 838 F.3d 442, 448 (5th Cir. 2016) (quoting Evans v. Ford Motor\\nCo., 484 F.3d 329, 334 (5th Cir. 2007)) (internal quotation marks omitted).\\n 4 FED. R. CIV. P. 50(a)(1).\\n 5 Janvey v. Romero, 817 F.3d 184, 187 (5th Cir. 2016) (quoting Abraham v. Alpha Chi\\n\\nOmega, 708 F.3d 614, 620 (5th Cir. 2013)) (internal quotation marks omitted).\\n 6 Feld Motor Sports, Inc. v. Traxxas, L.P., 861 F.3d 591, 596 (5th Cir. 2017).\\n\\n 6\\n\\f Case: 17-20599 Document: 00515035583 Page: 7 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\nnew trial only when there is an “absolute absence of evidence to support the\\njury's verdict.”’” 7 “A motion for a new trial or to amend a judgment cannot be\\nused to raise arguments which could, and should, have been made before the\\njudgment issued.” 8 “To the extent that a Rule 59(e) ruling was a\\nreconsideration of a question of law, . . . the standard of review is de novo.” 9\\n III.\\n W&T contends that the plain language of Louisiana Civil Code Article\\n2003 dictates that the jury’s bad faith finding bars Apache’s recovery for breach\\nof contract. Article 2003 states that\\n An obligee may not recover damages when his own bad faith has\\n caused the obligor’s failure to perform or when, at the time of the\\n contract, he has concealed from the obligor facts that he knew or\\n should have known would cause a failure.\\n\\n If the obligee’s negligence contributes to the obligor’s failure to\\n perform, the damages are reduced in proportion to that\\n negligence. 10\\n\\nIn answering the fourth question on the verdict form, the jury found that\\n“Apache act[ed] in bad faith thereby causing W&T to not comply with the\\ncontract.”\\n The district court denied W&T’s motion for judgment as a matter of law,\\nconcluding that it was bound by the Louisiana Supreme Court’s decision in\\n\\n\\n\\n\\n 7 McCaig v. Wells Fargo Bank (Tex.), N.A., 788 F.3d 463, 472 (5th Cir. 2015) (quoting\\nWellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 881 (5th Cir. 2013)).\\n 8 Garriot v. NCsoft Corp., 661 F.3d 243, 248 (5th Cir. 2011) (citation omitted) (internal\\n\\nquotation marks omitted).\\n 9 Hoffman v. L&M Arts, 838 F.3d 568, 581 (5th Cir. 2016) (internal quotation marks,\\n\\ncitations, and alterations omitted). The parties dispute whether the district court’s denial of\\nW&T’s Rule 59 motion involved a pure question of law, with W&T arguing that it did and\\nApache suggesting that W&T’s motion merely criticized the evidence presented at trial. The\\nRule 59 motion and district court’s ruling is discussed below in Section III.\\n 10 La. Civ. Code art. 2003.\\n\\n 7\\n\\f Case: 17-20599 Document: 00515035583 Page: 8 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\nLamar Contractors, Inc. v. Kacco, Inc. 11 The district court determined that,\\nunder Lamar, Article 2003’s bad faith damages bar is only implicated where\\nthe obligor has established that the obligee failed to perform a contractual\\nobligation that caused the obligor’s failure to perform. In other words, to avoid\\nliability pursuant to Article 2003’s bad faith bar, W&T would have to show that\\nApache failed in its performance of the contract and that failure caused W&T’s\\nbreach. Because the jury did not find that Apache had breached any obligation\\nunder the contract, 12 the district court reasoned that it was required to set\\naside the jury’s finding on Question 4—that Apache’s bad faith caused W&T’s\\nfailure to perform—meaning Apache was not barred from recovery under\\nArticle 2003.\\n W&T disputes the district court’s reading of and reliance on Lamar,\\narguing that (1) Lamar is not binding on this court because it is not\\njurisprudence constante and this court must instead follow the plain language\\nof Article 2003, which contains no language limiting Article 2003’s application\\nto situations where the obligee has breached; (2) Lamar’s holding is limited to\\nArticle 2003’s negligence clause; and (3) application of Lamar is contrary to\\npublic policy.\\n In diversity cases where this court must apply Louisiana substantive\\nlaw, 13 “we look to the final decisions of the Louisiana Supreme Court.” 14 In the\\nabsence of a final decision by the state’s supreme court, we make an Erie guess,\\nwhich requires us to “employ Louisiana’s civilian methodology, whereby we\\n\\n\\n\\n 11 189 So. 3d 394 (La. 2016).\\n 12 The district court noted that the jury considered and rejected that Apache had\\nbreached. For example, had the jury answered Question 3 in the affirmative, that would have\\namounted to a finding that Apache had breached an obligation under the contract. Question\\n3 asked whether Apache was required to obtain W&T’s approval under § 6.2 before\\ncompleting the P&A as required by § 18.4, which the jury answered in the negative.\\n 13 Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).\\n 14 In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007).\\n\\n 8\\n\\f Case: 17-20599 Document: 00515035583 Page: 9 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\nfirst examine primary sources of law: the constitution, codes, and statutes.” 15\\nEven caselaw rising to the level of jurisprudence constante is “secondary law in\\nLouisiana” 16 and, accordingly, we are not strictly bound by the decisions of\\nLouisiana’s intermediate appellate courts. 17 So, it is only when the Louisiana\\nSupreme Court has not made a determinative decision that this court must\\nmake an Erie guess, employing Louisiana’s civilian methodology. 18\\n The parties dispute whether Lamar speaks definitively on the issue of\\nwhether Article 2003 bars recovery of damages only when the obligee has been\\nfound in breach. In Lamar, the Louisiana Supreme Court considered a trial\\ncourt’s decision to reduce breach of contract damages awarded to a general\\ncontractor, Lamar, after finding that Lamar had contributed to the\\nsubcontractor’s failure to perform. 19 The obligation imposed by Article 2003 is\\n“correlative to the general duty imposed by [Article] 1983, which requires\\n‘contracts must be performed in good faith.’” 20 However, the court warned that\\nthe duty of good faith is not to be considered in isolation, and that it is\\ncircumscribed by the obligations imposed by the contract. 21 The court noted\\nthat “[a]lthough we have not had occasion to consider [Article] 2003 since its\\n\\n\\n\\n 15 Id. at 206 (quoting Am Int’l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d\\n254, 260 (5th Cir. 2003)).\\n 16 Prytania Park Hotel, Ltd. v. Gen. Star Indem. Co., 179 F.3d 169 (5th Cir. 1999).\\n 17 In re Katrina, 495 F.3d at 206 (“Thus, although we will not disregard the decisions\\n\\nof Louisiana’s intermediate courts unless we are convinced that the Louisiana Supreme\\nCourt would decide otherwise, we are not strictly bound by them.”) (citing Am Int’l Specialty\\nLines, 352 F.3d at 261).\\n 18 Boyett v. Redland Ins. Co., 741 F.3d 604, 607 (5th Cir. 2014); see also Moore v. State\\n\\nFarm Fire & Cas. Co., 556 F.3d 264, 269–70 (5th Cir. 2009) (“To determine Louisiana law,\\nwe look to the final decisions of the Louisiana Supreme Court. In the absence of a final\\ndecision by the Louisiana Supreme Court, we must make an Erie guess . . . . When faced with\\nunsettled questions of Louisiana law we adhere to Louisiana’s civilian decision-making\\nprocess.”).\\n 19 Lamar, 189 So. 3d at 395–97.\\n 20 Id. (citing La. Civ. Code art. 1983) (internal alteration omitted).\\n 21 Id. at 398.\\n\\n 9\\n\\f Case: 17-20599 Document: 00515035583 Page: 10 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\nenactment in 1985, jurisprudence interpreting the predecessor article . . .\\nemphasized that the obligor must establish that the obligee breached the\\ncontract, thereby making it more difficult for the obligor to perform its\\nobligation.” 22 It concluded: “[A]n obligor cannot establish an obligee has\\ncontributed to the obligor’s failure to perform unless the obligor can prove the\\nobligee itself failed to perform duties owed under the contract. Stated in other\\nwords, Kacco must demonstrate that Lamar failed to perform its obligations\\nunder the contract, which in turn contributed to Kacco’s breach of the\\ncontract.” 23 The question of the obligee’s bad faith does not become relevant\\nuntil there is a determination that the obligee failed to perform a contractual\\nobligation that in turn caused the obligor’s failure to perform. 24 For Article\\n2003 to apply as a damages bar, there must be an antecedent determination of\\nbreach.\\n While W&T urges that the Louisiana Supreme Court’s reading was\\nlimited to the second sentence of Article 2003—the negligence prong—the\\nLamar court drew no such limitation. 25 The reasoning of Lamar did not depend\\non the relationship between bad faith and negligence. W&T offers no principled\\nreason why the Louisiana Supreme Court would have chosen not to recognize\\na requirement of breach had the obligee in that case acted in bad faith, rather\\nthan negligently. Indeed, we find no distinction in Lamar. Because Lamar is\\ncontrolling here, the district court correctly concluded that the good-faith\\ninquiry in Article 2003 is limited to situations where the obligee has\\n\\n\\n\\n\\n 22 Id. (referring to its decisions in Board of Levee Com’rs of Orleans Levee Dist. v. Hulse,\\n120 So. 589, 590 (La. 1929) and Favrot v. Favrot, 68 So. 3d 1099, 1109 (La. Ct. App. 2011)).\\n 23 Id.\\n 24 Id. at 399 (summarizing the intermediate appellate court’s conclusion in Favrot that\\n\\n“the question of a party’s good or bad faith does not become relevant until there has been a\\ndetermination that the party failed to perform an obligation under the contract”).\\n 25 Id.\\n\\n 10\\n\\f Case: 17-20599 Document: 00515035583 Page: 11 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\nbreached. 26 The jury did not find that Apache breached so Article 2003 does\\nnot bar Apache’s entitlement to damages as a matter of law.\\n IV.\\n W&T also contends that the case never should have gone before a jury\\nbecause W&T did not breach the contract as a matter of law. Section 6.2 of the\\nJOA provides that the operator “shall not make any single expenditure or\\nundertake any activity or operation costing Two Hundred Thousand Dollars\\n($200,000 or more), unless an AFE [is approved].” W&T reads that provision\\nin conjunction with Exhibit C, governing accounting, which provides that\\n“[a]cceptable reasons for non-payment or short payment . . . are as follows: . . .\\nwhen an AFE is not approved.” Together, W&T argues, those provisions\\nunambiguously resolve the issue of whether W&T breached. Because W&T as\\nthe non-operator decided not to approve any AFE, it contends that it was\\nentitled to short the payment (and pay its share of the Helix P&A estimate)\\nwithout being found in breach of the JOA. W&T emphasizes that Section 6.2\\ndoes not contain an explicit exception for government-mandated operations\\nundertaken pursuant to Section 18.4 and suggests that AFE approval was\\nrequired even for operations performed under that Section. W&T points out\\nthat the parties understood how to make an exception to Section 6.2 and did so\\nin a separate instance, exempting the operator from obtaining AFE approval\\nin the event of a safety-threatening emergency. 27\\n\\n\\n 26 W&T suggests as a last resort that this court may certify the question to the\\nLouisiana Supreme Court. Because we conclude that the Louisiana Supreme Court resolved\\nthis issue in Lamar, certification is unnecessary here. Cf. Janvey v. Golf Channel, Inc., 792\\nF.3d 539, 547 (5th Cir. 2015) (“Given . . . that this is a question of state law that no on-point\\nprecedent from the Supreme Court of Texas has resolved, that the Supreme Court of Texas\\nis the final arbiter of Texas’s law . . . we believe it is best to certify the question at issue.”).\\n 27 “Notwithstanding the foregoing, in the event of an emergency which poses a threat\\n\\nto life, safety, property, or the environment, the Operator is empowered to immediately make\\nsuch expenditures for the Joint Account as, in its opinion as a reasonable and prudent\\nOperator, are necessary to deal with the emergency.”\\n 11\\n\\f Case: 17-20599 Document: 00515035583 Page: 12 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\n Apache disputes W&T’s reading of the contract, arguing that under\\nSection 18.4, which covers government-mandated P&A operations, Apache was\\nrequired to undertake its P&A of the Wells as the operator and was authorized\\nto do so without obtaining an AFE from W&T pursuant to Section 6.2. Section\\n18.4 provides that\\n The Operator shall conduct the abandonment and removal of any\\n well, Production System or Facilities required by a governmental\\n authority, and the Costs, risks and net proceeds will be shared by\\n the Participating Parties in such well, Production System or\\n Facilities according to their Participating Interest Share.\\n\\nApache asserts that this provision contemplates cost-sharing between the\\nparties and does not incorporate Section 6.2’s AFE process. Apache stresses\\nthat requiring a Section 6.2 AFE for a government-mandated P&A operation\\nwould lead to an absurd result because the non-operator could essentially hold-\\nup an operator from completing a P&A required by federal law to avoid sharing\\nthe costs.\\n The district court denied W&T’s motion for summary judgment,\\nconcluding that the interplay between Section 6.2 and Section 18.4 was\\nambiguous, leaving a material question of fact as to the parties’ intent. In\\nanswering Question Three, the jury found that Apache was not required to\\nobtain W&T’s approval through an AFE before conducting the P&A as required\\nby Section 18.4 28\\n Whether contract language is ambiguous under Louisiana law is a\\nquestion of law. 29 Under Louisiana law, “[w]hen the words of a contract are\\nclear and explicit and lead to no absurd consequences, no further\\n\\n\\n\\n 28 “Was Apache required to obtain W&T’s approval under Section 6.2 of the Contract\\nbefore Apache plugged and abandoned the MC-674 wells as required under Section 18.4 of\\nthe Contract?”\\n 29 Cadwallader v. Allstate Ins. Co., 848 So. 2d 577, 580 (La. 2003).\\n\\n 12\\n\\f Case: 17-20599 Document: 00515035583 Page: 13 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\ninterpretation may be made in search of the parties’ intent.” 30 “[I]f a court finds\\nthe contract to be unambiguous, it may construe the intent from the face of the\\ndocument—without considering extrinsic evidence—and enter judgment as a\\nmatter of law.” 31 If the court determines that there is an ambiguity, the\\nquestion of intent is an issue of fact. 32 “Louisiana courts will not interpret a\\ncontract in a way that leads to unreasonable consequences or inequitable or\\nabsurd results even when the words used in the contract are fairly explicit.” 33\\n Applying Section 6.2’s expenditure provision to a government-mandated\\nP&A undertaken pursuant to Section 18.4 would lead to an absurd\\nconsequence: namely a situation where a non-operator is empowered to hold\\nan operator hostage, preventing the operator from completing a legally\\nrequired P&A, in order to extract a better bargain or avoid cost-sharing\\naltogether. The oddity of that result is compounded by the fact that Section\\n18.4 has its own cost-sharing provision, 34 making the idea that the operator\\nwas required to obtain an AFE to complete the P&A less tenable. In light of\\nthat absurd consequence, the district court correctly concluded that the jury\\nneeded to resolve the question of the parties’ intent. 35 We agree therefore that\\n\\n\\n 30 La. Civ. Code art. 2046.\\n 31 Preston Law Firm, L.L.C. v. Mariner Health Care Mgmt Co., 622 F.3d 384, 392 (5th\\nCir. 2010) (internal citation omitted).\\n 32 Gebreyesus v. F.C. Schaffer & Assocs., Inc., 204 F.3d 639, 643 (5th Cir. 2000).\\n 33 Tex. E. Transmission Corp. v. Amerada Hess Corp., 145 F.3d 737, 742 (5th Cir.\\n\\n1998); see also La. Civ. Code art. 2046 (“When the words of a contract are clear and explicit\\nand lead to no absurd consequences, no further interpretation may be made in search of the\\nparties’ intent.”).\\n 34 “The Operator shall conduct the abandonment and removal of any well, Production\\n\\nSystem or Facilities required by a governmental authority, and the Costs, risks and net\\nproceeds will be shared by the Participating Parties in such well, Production System or\\nFacilities according to their Participating Interest Share.”\\n 35 La. Civ. Code art. 2046 (“When the words of a contract are clear and explicit and\\n\\nlead to no absurd consequences, no further interpretation may be made in search of the\\nparties’ intent.”); Stewart Enters., Inc. v. RSUI Indem. Co., Inc., 614 F.3d 117 (5th Cir. 2010)\\n(holding that the most straightforward reading of the contract would lead to an absurd result\\nthat “could not have been intended by the parties”).\\n 13\\n\\f Case: 17-20599 Document: 00515035583 Page: 14 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\nthe question of whether Section 6.2’s expenditure requirement applies to\\ngovernment-mandated P&A undertaken pursuant to Section 18.4—which\\nitself mandates cost-sharing—is ambiguous and was properly put to the jury.\\n W&T’s response to the absurdity concern is unavailing. It suggests that\\nif the parties fail to agree on costs through the AFE process, the government\\ncan simply conduct the P&A operation itself and charge the operator and non-\\noperator later. 36 W&T does not dispute that federal law required the P&A\\noperation of the Wells—rather it reads the Section 6.2 AFE requirement to\\napply to government-mandated P&A operations and urges that Apache, having\\nfailed to obtain an AFE from W&T, could have decided not to comply with\\nfederal regulations and allow the government to P&A the Wells itself. Allowing\\nApache to evade its obligations under federal law to P&A the Wells is contrary\\nto its duty to conduct all operations as would a prudent operator. 37 W&T’s\\nproposed answer to the troubling consequences of its reading is no solution at\\nall.\\n V.\\n Finally, W&T claims that even if Apache was not barred from recovering\\ndamages, W&T is entitled to an offset based on Jury Question No. 5 and that\\nthe damages award of $43,214,515.83 should be reduced by $17 million. As to\\nthe legal basis for the offset, W&T points to “the basic law of damages” in\\nLouisiana set out in La. Civ. Code art. 1995 that damages cannot place the\\nobligee in a better position than it would have been in if the contract had been\\nfulfilled. W&T posits that the jury determined that a $17 million offset was\\n\\n\\n\\n 36“If parties cannot agree about costs and thus fail to P&A wells, the government can\\narrange for the P&A, deem the bond the working interest owners were required to provide\\nforfeited to the amount that would cover P&A costs, and charge the working interest owners\\nfor any excess costs.”\\n 37 “The Operator shall conduct all operations in a good and workmanlike manner, as\\n\\nwould a prudent operator under the same or similar circumstances.”\\n 14\\n\\f Case: 17-20599 Document: 00515035583 Page: 15 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\nappropriate to account for the savings that Apache enjoyed by not incurring\\nthe stacking costs for the rigs. In its view, the jury credited testimony that\\nApache would have incurred stacking costs between $29.5 million and $36.4\\nmillion and adopted the $17 million figure as a reasonable determination of\\nApache’s windfall. The district court denied W&T’s motion for entry of\\njudgment and motion for a new trial, concluding that W&T was not entitled to\\nan offset on the basis of Question 5. Specifically, the district court determined\\nthat Questions 2 and 5 were not linked, and offset was unavailable as an\\naffirmative defense under any of W&T’s theories.\\n Article 1995 provides that “[d]amages are measured by the loss\\nsustained by the obligee and the profit of which he has been deprived.” 38 “The\\nmeasure of damages for a breach of contract is the sum that will place plaintiff\\nin the same position as if the obligation had been fulfilled.” 39 On Question 2,\\nthe jury was instructed in accordance with Article 1995 to calculate “an\\namount that is fair compensation for those damages.” The court then explained\\nto the jury:\\n Damages are measured by the loss sustained by the non-breaching\\n party. These are called compensatory damages. The damages\\n amount is the amount that will place Apache in the position it\\n would have been in if the parties’ contract had been properly\\n performed. The damages include the amount a party owed under\\n the contract.\\n\\nThe jury was instructed to determine the actual loss sustained without\\nreference to Question 5. W&T’s own closing argument emphasized this\\nunderstanding, encouraging the jury in calculating an amount for Question 2\\nto subtract the amount of savings W&T attributed to Apache’s avoiding the\\n\\n\\n\\n 38 La. Civ. Code art. 1995.\\n 39 Gloria’s Ranch LLC v. Tauren Exploration, Inc., 252 So. 3d 431, 445–46 (La. 2018)\\n(internal citation and quotation marks omitted).\\n 15\\n\\f Case: 17-20599 Document: 00515035583 Page: 16 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\nstacking costs by using the rigs. 40 W&T’s offset argument on appeal ignores\\nthe fact that the jury instructions with respect to Question 2 tracked the\\nlanguage of Article 1995. The two cases W&T relies on do not offer a theory\\nentitling W&T to offset. In Evangeline Parish School Bd. v. Energy Contracting\\nServs., Inc., the Louisiana appellate court considered a damages award in favor\\nof an obligee to an energy-savings services contract. 41 The court reaffirmed the\\ngeneral principle of Article 1995 that “[d]amages for obligor’s failure to perform\\nare measured by the loss sustained by the obligee and the profit of which he\\nhas been deprived” and remanded, noting that the experts failed to calculate\\nthe amount overcharged and the appellate court was therefore “unable to make\\nsuch a determination from the record.” 42 There is no lack of clarity in the record\\nhere—W&T simply disputes the jury’s rejection of its stacking costs theory. In\\nSwoboda v. SMT Prop., LLC, the Louisiana appellate court considered the\\ndamages award in a contract dispute involving the construction of a residential\\nhome. 43 In accordance with Article 1995, the court “consider[ed] the benefit to\\nplaintiffs in maintaining ownership and possession of the adjacent lot [and]\\nconclude[ed] that plaintiffs [we]re not entitled to reimbursement.” 44 Again,\\nW&T ignores that the jury was instructed in accordance with Article 1995 and\\nexplicitly calculated the actual loss sustained by Apache. W&T’s stacking costs\\ntheory was rejected by the jury and it has offered no legal theory to support\\nupsetting that verdict.\\n\\n\\n\\n\\n 40 “Number two is the damage issue. We believe that if you get to that issue, and you\\nbelieve that somehow damages should be awarded in this case, they say it is 43.2 million. We\\nthink they benefited anywhere . . . between 29 to 36 million. So we believe you should subtract\\nthat from any damage amount you decide to award in the case.”\\n 41 617 So. 2d 1259 (La. App. 3d. 1993).\\n 42 Id. at 1267.\\n 43 975 So. 2d 691 (La. App. 2008).\\n 44 Id. at 695.\\n\\n 16\\n\\f Case: 17-20599 Document: 00515035583 Page: 17 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\n W&T posits two additional legal bases to support an offset in Apache’s\\ndamages award. First, W&T suggests that Article 2323, governing comparative\\nfault, provides an independent legal basis for a reduction. Article 2323 applies\\nin tort cases; the Civil Code provides its own rule governing comparative fault\\nin contract cases—Article 2003—that we have already determined does not aid\\nW&T here. 45 W&T also claims the doctrine of compensation under Article 1893\\ngives independent grounds for an offset. 46 As the district court correctly noted,\\nW&T “previously admitted neither [compensation or unjust enrichment] could\\nbe the basis of the jury’s finding, as that was not the nature of the evidence\\npresented to the jury.” In its post-verdict briefing, W&T conceded that Article\\n1893 did not apply, because “the jury was not instructed on the specific\\nrequirements of the traditional doctrine of offset or setoff, which requires debts\\nowed by both parties being offset against each other.” Neither comparative\\nfault nor compensation provide a basis for a reduction in the damages award\\nhere.\\n Finally, W&T offers a last-ditch argument that the jury award was\\nclearly excessive because of Apache’s savings on the stacking costs. The district\\ncourt did not abuse its discretion in denying W&T’s motion for a new trial or\\nremittitur. We agree with the district court the damages award was supported\\nby substantial evidence. The jury logically awarded the precise amount that\\nW&T shorted by making a partial payment after the P&A operation. Such an\\naward was not excessive or “contrary to right reason”—rather, it reflects that\\n\\n\\n\\n\\n 45See Justiss Oil Co. v. Oil Country Tubular Corp., 216 So. 3d 346, 356–57 (La. Ct.\\nApp.), writ denied, 227 So. 3d 830 (La. 2017) (quoting Hanover Ins. Co. v. Plaquemines Parish\\nGov’t, No. 12–1680, 2015 WL 4167745, at *5–6 (E.D. La. July 9, 2015).\\n 46 Article 1893 provides that “Compensation takes place by operation of law when two\\n\\npersons owe to each other sums of money or quantities of fungible things identical in kind,\\nand these sums or quantities are liquidated and presently due. In such a case, compensation\\nextinguishes both obligations to the extent of the lesser amount.” La. Civ. Code art. 1893.\\n 17\\n\\f Case: 17-20599 Document: 00515035583 Page: 18 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\nthe jury’s consideration of the evidence led it to reject W&T’s assertion that\\nApache enjoyed a windfall by avoiding the stacking costs. 47\\n VI.\\n For the foregoing reasons, the judgment of the district court is affirmed.\\n\\n\\n\\n\\n 47 Laxton v. Gap, Inc., 333 F.3d 572, 586 (5th Cir. 2003) (“When a damage award is\\nmerely excessive or so large as to appear contrary to right reason, remittitur is the\\nappropriate remedy.”).\\n 18\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4417181/\", \"author_raw\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"HIGGINBOTHAM"},"judge2":{"kind":"string","value":"GRAVES"},"judge3":{"kind":"string","value":"WILLETT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4639928/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: APACHE DEEPWATER, L.L.C., Plaintiff - Appellee v. W&T OFFSHORE, INCORPORATED, Defendant - Appellant\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-16\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-20599 Document: 00515035583 Page: 1 Date Filed: 07/16/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n United States Court of Appeals\n\n No. 17-20599 Fifth Circuit\n\n FILED\n July 16, 2019\nAPACHE DEEPWATER, L.L.C., Lyle W. Cayce\n Clerk\n Plaintiff - Appellee\n\nv.\n\nW&T OFFSHORE, INCORPORATED,\n\n Defendant - Appellant\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.\nPATRICK E. HIGGINBOTHAM, Circuit Judge:\n This dispute arises from a successful plugging and abandonment\noperation of three offshore oil and gas wells in the Mississippi Canyon area of\nthe Gulf of Mexico. Apache Deepwater, LLC performed the operation and seeks\npayment from its non-operator partner, W&T Offshore, Inc. A jury awarded\n$43.2 million to Apache for W&T’s breach of the Joint Operating Agreement.\nW&T challenges the district court’s application of the Louisiana Civil Code and\ninterpretation of the contract. Alternatively, W&T contends that it is entitled\nto an offset in damages because of Apache’s bad faith. Finding no error, we\naffirm.\n\f Case: 17-20599 Document: 00515035583 Page: 2 Date Filed: 07/16/2019\n\n\n\n No. 17-20599\n I.\n In May 1999, Apache and W&T’s predecessors entered into a Joint\nOperating Agreement (“JOA”) that governed the operation of three offshore\ndeepwater oil and gas wells (the “Wells”) in the Mississippi Canyon area of the\nGulf of Mexico. This dispute arises from operator Apache’s plugging and\nabandonment (“P&A”) of the Wells.\n In 2012, Apache attempted to P&A the Wells with an intervention vessel\ncalled Uncle John with the consent of W&T, but that operation was\nunsuccessful. Following that failure, Apache contracted to use a different\nintervention vessel, the Helix-534 (“Helix”). An internal figure by Apache\nestimated that the cost to P&A the Wells with the Helix was approximately\n$56,350,000. In June 2014, W&T contacted Apache to set up a status\nconference in July discussing the P&A operation, confirming that W&T knew\n“that the Helix 534 is contracted for the project.” At that meeting, W&T learned\nthat Apache proposed using two drilling rigs for the project instead of the Helix,\nthe Ocean Onyx (“Onyx”) and Ensco-8505 (“Ensco”).\n W&T and Apache offered to the jury competing explanations for the\nswitch from the Helix to the Onyx and Ensco drilling rigs. By W&T’s telling,\nApache’s decision to use the Onyx and Ensco was a simple matter of cost: W&T\ncontends that Apache entered into a contract for the two drilling rigs for the\npurpose of drilling new deepwater wells, but abandoned that project in 2014\nand was left with exorbitant stacking costs for the idle rigs (approximately\n$1,000,000 per day). W&T asserts that Apache’s decision to use the rigs instead\nof the Helix was an attempt to recoup on the costs of contracting for the unused\nrigs because Apache had been unsuccessful in unloading the rigs onto another\noperator. Prior to the July meeting, Apache prepared estimates for the use of\nthe rigs which totaled between $81 and $104 million. W&T points to an\ninternal presentation in which Apache was weighing the costs of using the\n 2\n\f Case: 17-20599 Document: 00515035583 Page: 3 Date Filed: 07/16/2019\n\n\n\n No. 17-20599\nHelix against the rigs and determining that with the stacking costs Apache\nwas paying for the idle rigs, the use of the rigs would be cheaper because the\ncost would be split with W&T. Apache cancelled the Helix contract. W&T\nclaims that although Apache purported to rely on written evaluations\nexplaining the technical reasons the rigs were necessary (including that the\nHelix no longer complied with government regulations), Apache refused to\nprovide those analyses to W&T.\n Apache rejects W&T’s economic explanation and argues that the Helix\nwas not a safe option after the Deepwater Horizon spill and the government\nregulators would not have approved the Helix for the P&A operations. Apache\nput on evidence that it had discussed the risks of using the Helix with W&T,\nand demonstrated that technical difficulties posed by the Wells would make\nthe “open water” operations of the Helix environmentally risky, that the Wells\nwere “high risk,” and that the drilling rigs were able to conduct the P&A\noperations with safeguards mitigating the risk of oil spills. Apache also claimed\nthat the federal Bureau of Safety and Environmental Enforcement (“BSEE”)\nadvised Apache that it was no longer approving the type of open-water\noperations that Helix would need to perform to complete the P&A task. In\nApache’s version, W&T began “actively resisting” the P&A plan using the rigs\nbecause the Helix operation would be far cheaper for W&T and W&T was\ndisregarding the environmental risk. 1 Apache argued to the jury that W&T\nignored the fact that Helix would have had operational issues that would have\n\n\n\n\n 1 Apache points to an internal e-mail from W&T’s vice president Cliff Williams in\nwhich he wrote: “I’d like to determine options should we not agree with operators plan and\nbelieve we can perform well abandonments cheaper. Can we non-consent and take over\nabandonment operations with Apache obligated to pay their share of estimated abandonment\ncosts?”\n 3\n\f Case: 17-20599 Document: 00515035583 Page: 4 Date Filed: 07/16/2019\n\n\n\n No. 17-20599\nincreased the costs of the operation past the initial estimates and that the use\nof the rigs was “reasonably necessary.”\n Amid their dispute over the appropriate intervention vessel, Apache\nsought W&T’s approval for use of the rigs through an Authorizations for\nExpenditure (“AFE”), but W&T decided not to approve the use of the rigs, 2 and\nrejected two other requests for AFEs. Apache decided to use the rigs for the\nP&A and the work was successfully completed in February 2015 for a total cost\nof $139,900,000. Apache billed W&T for its contractual 49% share, or\n$68,570,000. W&T decided to pay $24,860,640, which represented 49% of the\nestimate for use of the Helix, contending that “Apache’s insistence on using a\ndrilling rig unnecessarily and unreasonably increased the costs of this work,”\nand determining that it was not obligated to pay the full billed amount because\nit had not approved the AFEs.\n Apache sued for breach of contract in Texas state court in December 2014\nand the case was removed by W&T in January 2015. Prior to trial, W&T moved\nfor summary judgment on Apache’s breach of contract claim, arguing that the\nJOA was unambiguous in requiring the operator (Apache) to obtain an\napproved AFE before expending over $200,000. The parties’ argument turned\non the reading of two provisions in the JOA: § 6.2 governing authorizations for\nexpenditures and § 18.4 governing abandonment operations required by the\ngovernment:\n 6.2. Authorization for Expenditure: The Operator shall not\n make any single expenditure or undertake any activity or\n\n\n 2 In its response, W&T stated: “We believe Apache, as a prudent operator, has an\nobligation to conduct the operation in a cost effective and safe manner in compliance with all\ngovernmental regulations. We do not understand why Apache continues to advocate the use\nof the Ensco 8505 rig when it is clear that an intervention vessel could safely perform the\nabandonment work at a much lower cost. . . . We do not believe W&T should be obligated to\npay the additional charges arising from the use of the Ensco rig when other less expensive\noptions are available.”\n 4\n\f Case: 17-20599 Document: 00515035583 Page: 5 Date Filed: 07/16/2019\n\n\n\n No. 17-20599\n operation costing Two Hundred Thousand Dollars ($200,000) or\n more, unless an AFE has either (1) been included in a proposal for\n an activity or operation and is approved by the Participating\n Parties through their Election to participate in the activity or\n operation, or (2) received the approval of the Parties as a General\n Matter. When executed by a party, an AFE grants the Operator\n the authority to commit or expend funds on the activity or\n operation in accordance with this Agreement for the account of the\n Participating Parties. . . .\n\n 18.4. Abandonment Operations Requirement by\n Governmental Authority: The Operator shall conduct the\n abandonment and removal of any well, Production System or\n Facilities required by a governmental authority, and the Costs,\n risks and net proceeds will be shared by the Participating Parties\n in such well, Production System or Facilities according to their\n Participating Interest Share.\n\n The district court denied W&T’s motion for summary judgment and\ndetermined that the interaction of the provisions in the JOA was ambiguous,\ncreating an issue of fact as to the “parties’ intent on the applicability of § 6.2 to\na government-mandated plugging and abandonment operation governed by\n§ 18.4.” The case proceeded to trial and the jury made five findings:\n (1) Did W&T fail to comply with the Contract by failing to pay its\n proportionate share of the costs to plug and abandon the MC 674 wells?\n Yes.\n (2) What sum of money, if any, would compensate Apache for W&T’s\n failure to pay its proportionate share of costs to plug and abandon the\n MC 674 wells? $43,214,515.83.\n (3) Was Apache required to obtain W&T’s approval under Section 6.2 of\n the Contract before Apache plugged and abandoned the MC 674 wells as\n required under Section 18.4 of the Contract? No.\n\n\n\n\n 5\n\f Case: 17-20599 Document: 00515035583 Page: 6 Date Filed: 07/16/2019\n\n\n\n No. 17-20599\n (4) Did Apache act in bad faith, thereby causing W&T to not comply with\n the contract? Yes.\n (5) By what amount, if any, should the amount you found in response to\n Jury Question No. 2 be offset? $17,000,000.\nFollowing trial, the court entered its order and final judgment, determining\nthat the jury’s “bad faith” finding in Question 4 did not preclude Apache’s\nrecovery for breach of contract under Louisiana law and holding that W&T was\nnot entitled to an offset under Louisiana law. The district court also denied\nW&T’s motion for a new trial or remittitur and renewed motion for judgment\nas a matter of law. This appeal followed.\n II.\n This court reviews the denial of a Rule 50(b) renewed motion for\njudgment as a matter of law de novo, “but our standard of review with respect\nto a jury verdict is especially deferential.” 3 A party is only entitled to judgment\nas a matter of law on an issue where no reasonable jury would have had a\nlegally sufficient evidentiary basis to find otherwise. 4 In evaluating the\nevidence, this court “credit[s] the non-moving party’s evidence and disregard[s]\nall evidence favorable to the moving party that the jury is not required to\nbelieve.” 5 This court also has jurisdiction “to hear an appeal of the district\ncourt’s legal conclusions in denying summary judgment, but only if it is\nsufficiently preserved in a Rule 50 motion.” 6\n “A district court’s resolution of a motion for new trial is reviewed for\nabuse of discretion, and ‘[t]he district court abuses its discretion by denying a\n\n\n\n 3 Olibas v. Barclay, 838 F.3d 442, 448 (5th Cir. 2016) (quoting Evans v. Ford Motor\nCo., 484 F.3d 329, 334 (5th Cir. 2007)) (internal quotation marks omitted).\n 4 FED. R. CIV. P. 50(a)(1).\n 5 Janvey v. Romero, 817 F.3d 184, 187 (5th Cir. 2016) (quoting Abraham v. Alpha Chi\n\nOmega, 708 F.3d 614, 620 (5th Cir. 2013)) (internal quotation marks omitted).\n 6 Feld Motor Sports, Inc. v. Traxxas, L.P., 861 F.3d 591, 596 (5th Cir. 2017).\n\n 6\n\f Case: 17-20599 Document: 00515035583 Page: 7 Date Filed: 07/16/2019\n\n\n\n No. 17-20599\nnew trial only when there is an “absolute absence of evidence to support the\njury's verdict.”’” 7 “A motion for a new trial or to amend a judgment cannot be\nused to raise arguments which could, and should, have been made before the\njudgment issued.” 8 “To the extent that a Rule 59(e) ruling was a\nreconsideration of a question of law, . . . the standard of review is de novo.” 9\n III.\n W&T contends that the plain language of Louisiana Civil Code Article\n2003 dictates that the jury’s bad faith finding bars Apache’s recovery for breach\nof contract. Article 2003 states that\n An obligee may not recover damages when his own bad faith has\n caused the obligor’s failure to perform or when, at the time of the\n contract, he has concealed from the obligor facts that he knew or\n should have known would cause a failure.\n\n If the obligee’s negligence contributes to the obligor’s failure to\n perform, the damages are reduced in proportion to that\n negligence. 10\n\nIn answering the fourth question on the verdict form, the jury found that\n“Apache act[ed] in bad faith thereby causing W&T to not comply with the\ncontract.”\n The district court denied W&T’s motion for judgment as a matter of law,\nconcluding that it was bound by the Louisiana Supreme Court’s decision in\n\n\n\n\n 7 McCaig v. Wells Fargo Bank (Tex.), N.A., 788 F.3d 463, 472 (5th Cir. 2015) (quoting\nWellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 881 (5th Cir. 2013)).\n 8 Garriot v. NCsoft Corp., 661 F.3d 243, 248 (5th Cir. 2011) (citation omitted) (internal\n\nquotation marks omitted).\n 9 Hoffman v. L&M Arts, 838 F.3d 568, 581 (5th Cir. 2016) (internal quotation marks,\n\ncitations, and alterations omitted). The parties dispute whether the district court’s denial of\nW&T’s Rule 59 motion involved a pure question of law, with W&T arguing that it did and\nApache suggesting that W&T’s motion merely criticized the evidence presented at trial. The\nRule 59 motion and district court’s ruling is discussed below in Section III.\n 10 La. Civ. Code art. 2003.\n\n 7\n\f Case: 17-20599 Document: 00515035583 Page: 8 Date Filed: 07/16/2019\n\n\n\n No. 17-20599\nLamar Contractors, Inc. v. Kacco, Inc. 11 The district court determined that,\nunder Lamar, Article 2003’s bad faith damages bar is only implicated where\nthe obligor has established that the obligee failed to perform a contractual\nobligation that caused the obligor’s failure to perform. In other words, to avoid\nliability pursuant to Article 2003’s bad faith bar, W&T would have to show that\nApache failed in its performance of the contract and that failure caused W&T’s\nbreach. Because the jury did not find that Apache had breached any obligation\nunder the contract, 12 the district court reasoned that it was required to set\naside the jury’s finding on Question 4—that Apache’s bad faith caused W&T’s\nfailure to perform—meaning Apache was not barred from recovery under\nArticle 2003.\n W&T disputes the district court’s reading of and reliance on Lamar,\narguing that (1) Lamar is not binding on this court because it is not\njurisprudence constante and this court must instead follow the plain language\nof Article 2003, which contains no language limiting Article 2003’s application\nto situations where the obligee has breached; (2) Lamar’s holding is limited to\nArticle 2003’s negligence clause; and (3) application of Lamar is contrary to\npublic policy.\n In diversity cases where this court must apply Louisiana substantive\nlaw, 13 “we look to the final decisions of the Louisiana Supreme Court.” 14 In the\nabsence of a final decision by the state’s supreme court, we make an Erie guess,\nwhich requires us to “employ Louisiana’s civilian methodology, whereby we\n\n\n\n 11 189 So. 3d 394 (La. 2016).\n 12 The district court noted that the jury considered and rejected that Apache had\nbreached. For example, had the jury answered Question 3 in the affirmative, that would have\namounted to a finding that Apache had breached an obligation under the contract. Question\n3 asked whether Apache was required to obtain W&T’s approval under § 6.2 before\ncompleting the P&A as required by § 18.4, which the jury answered in the negative.\n 13 Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).\n 14 In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007).\n\n 8\n\f Case: 17-20599 Document: 00515035583 Page: 9 Date Filed: 07/16/2019\n\n\n\n No. 17-20599\nfirst examine primary sources of law: the constitution, codes, and statutes.” 15\nEven caselaw rising to the level of jurisprudence constante is “secondary law in\nLouisiana” 16 and, accordingly, we are not strictly bound by the decisions of\nLouisiana’s intermediate appellate courts. 17 So, it is only when the Louisiana\nSupreme Court has not made a determinative decision that this court must\nmake an Erie guess, employing Louisiana’s civilian methodology. 18\n The parties dispute whether Lamar speaks definitively on the issue of\nwhether Article 2003 bars recovery of damages only when the obligee has been\nfound in breach. In Lamar, the Louisiana Supreme Court considered a trial\ncourt’s decision to reduce breach of contract damages awarded to a general\ncontractor, Lamar, after finding that Lamar had contributed to the\nsubcontractor’s failure to perform. 19 The obligation imposed by Article 2003 is\n“correlative to the general duty imposed by [Article] 1983, which requires\n‘contracts must be performed in good faith.’” 20 However, the court warned that\nthe duty of good faith is not to be considered in isolation, and that it is\ncircumscribed by the obligations imposed by the contract. 21 The court noted\nthat “[a]lthough we have not had occasion to consider [Article] 2003 since its\n\n\n\n 15 Id. at 206 (quoting Am Int’l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d\n254, 260 (5th Cir. 2003)).\n 16 Prytania Park Hotel, Ltd. v. Gen. Star Indem. Co., 179 F.3d 169 (5th Cir. 1999).\n 17 In re Katrina, 495 F.3d at 206 (“Thus, although we will not disregard the decisions\n\nof Louisiana’s intermediate courts unless we are convinced that the Louisiana Supreme\nCourt would decide otherwise, we are not strictly bound by them.”) (citing Am Int’l Specialty\nLines, 352 F.3d at 261).\n 18 Boyett v. Redland Ins. Co., 741 F.3d 604, 607 (5th Cir. 2014); see also Moore v. State\n\nFarm Fire & Cas. Co., 556 F.3d 264, 269–70 (5th Cir. 2009) (“To determine Louisiana law,\nwe look to the final decisions of the Louisiana Supreme Court. In the absence of a final\ndecision by the Louisiana Supreme Court, we must make an Erie guess . . . . When faced with\nunsettled questions of Louisiana law we adhere to Louisiana’s civilian decision-making\nprocess.”).\n 19 Lamar, 189 So. 3d at 395–97.\n 20 Id. (citing La. Civ. Code art. 1983) (internal alteration omitted).\n 21 Id. at 398.\n\n 9\n\f Case: 17-20599 Document: 00515035583 Page: 10 Date Filed: 07/16/2019\n\n\n\n No. 17-20599\nenactment in 1985, jurisprudence interpreting the predecessor article . . .\nemphasized that the obligor must establish that the obligee breached the\ncontract, thereby making it more difficult for the obligor to perform its\nobligation.” 22 It concluded: “[A]n obligor cannot establish an obligee has\ncontributed to the obligor’s failure to perform unless the obligor can prove the\nobligee itself failed to perform duties owed under the contract. Stated in other\nwords, Kacco must demonstrate that Lamar failed to perform its obligations\nunder the contract, which in turn contributed to Kacco’s breach of the\ncontract.” 23 The question of the obligee’s bad faith does not become relevant\nuntil there is a determination that the obligee failed to perform a contractual\nobligation that in turn caused the obligor’s failure to perform. 24 For Article\n2003 to apply as a damages bar, there must be an antecedent determination of\nbreach.\n While W&T urges that the Louisiana Supreme Court’s reading was\nlimited to the second sentence of Article 2003—the negligence prong—the\nLamar court drew no such limitation. 25 The reasoning of Lamar did not depend\non the relationship between bad faith and negligence. W&T offers no principled\nreason why the Louisiana Supreme Court would have chosen not to recognize\na requirement of breach had the obligee in that case acted in bad faith, rather\nthan negligently. Indeed, we find no distinction in Lamar. Because Lamar is\ncontrolling here, the district court correctly concluded that the good-faith\ninquiry in Article 2003 is limited to situations where the obligee has\n\n\n\n\n 22 Id. (referring to its decisions in Board of Levee Com’rs of Orleans Levee Dist. v. Hulse,\n120 So. 589, 590 (La. 1929) and Favrot v. Favrot, 68 So. 3d 1099, 1109 (La. Ct. App. 2011)).\n 23 Id.\n 24 Id. at 399 (summarizing the intermediate appellate court’s conclusion in Favrot that\n\n“the question of a party’s good or bad faith does not become relevant until there has been a\ndetermination that the party failed to perform an obligation under the contract”).\n 25 Id.\n\n 10\n\f Case: 17-20599 Document: 00515035583 Page: 11 Date Filed: 07/16/2019\n\n\n\n No. 17-20599\nbreached. 26 The jury did not find that Apache breached so Article 2003 does\nnot bar Apache’s entitlement to damages as a matter of law.\n IV.\n W&T also contends that the case never should have gone before a jury\nbecause W&T did not breach the contract as a matter of law. Section 6.2 of the\nJOA provides that the operator “shall not make any single expenditure or\nundertake any activity or operation costing Two Hundred Thousand Dollars\n($200,000 or more), unless an AFE [is approved].” W&T reads that provision\nin conjunction with Exhibit C, governing accounting, which provides that\n“[a]cceptable reasons for non-payment or short payment . . . are as follows: . . .\nwhen an AFE is not approved.” Together, W&T argues, those provisions\nunambiguously resolve the issue of whether W&T breached. Because W&T as\nthe non-operator decided not to approve any AFE, it contends that it was\nentitled to short the payment (and pay its share of the Helix P&A estimate)\nwithout being found in breach of the JOA. W&T emphasizes that Section 6.2\ndoes not contain an explicit exception for government-mandated operations\nundertaken pursuant to Section 18.4 and suggests that AFE approval was\nrequired even for operations performed under that Section. W&T points out\nthat the parties understood how to make an exception to Section 6.2 and did so\nin a separate instance, exempting the operator from obtaining AFE approval\nin the event of a safety-threatening emergency. 27\n\n\n 26 W&T suggests as a last resort that this court may certify the question to the\nLouisiana Supreme Court. Because we conclude that the Louisiana Supreme Court resolved\nthis issue in Lamar, certification is unnecessary here. Cf. Janvey v. Golf Channel, Inc., 792\nF.3d 539, 547 (5th Cir. 2015) (“Given . . . that this is a question of state law that no on-point\nprecedent from the Supreme Court of Texas has resolved, that the Supreme Court of Texas\nis the final arbiter of Texas’s law . . . we believe it is best to certify the question at issue.”).\n 27 “Notwithstanding the foregoing, in the event of an emergency which poses a threat\n\nto life, safety, property, or the environment, the Operator is empowered to immediately make\nsuch expenditures for the Joint Account as, in its opinion as a reasonable and prudent\nOperator, are necessary to deal with the emergency.”\n 11\n\f Case: 17-20599 Document: 00515035583 Page: 12 Date Filed: 07/16/2019\n\n\n\n No. 17-20599\n Apache disputes W&T’s reading of the contract, arguing that under\nSection 18.4, which covers government-mandated P&A operations, Apache was\nrequired to undertake its P&A of the Wells as the operator and was authorized\nto do so without obtaining an AFE from W&T pursuant to Section 6.2. Section\n18.4 provides that\n The Operator shall conduct the abandonment and removal of any\n well, Production System or Facilities required by a governmental\n authority, and the Costs, risks and net proceeds will be shared by\n the Participating Parties in such well, Production System or\n Facilities according to their Participating Interest Share.\n\nApache asserts that this provision contemplates cost-sharing between the\nparties and does not incorporate Section 6.2’s AFE process. Apache stresses\nthat requiring a Section 6.2 AFE for a government-mandated P&A operation\nwould lead to an absurd result because the non-operator could essentially hold-\nup an operator from completing a P&A required by federal law to avoid sharing\nthe costs.\n The district court denied W&T’s motion for summary judgment,\nconcluding that the interplay between Section 6.2 and Section 18.4 was\nambiguous, leaving a material question of fact as to the parties’ intent. In\nanswering Question Three, the jury found that Apache was not required to\nobtain W&T’s approval through an AFE before conducting the P&A as required\nby Section 18.4 28\n Whether contract language is ambiguous under Louisiana law is a\nquestion of law. 29 Under Louisiana law, “[w]hen the words of a contract are\nclear and explicit and lead to no absurd consequences, no further\n\n\n\n 28 “Was Apache required to obtain W&T’s approval under Section 6.2 of the Contract\nbefore Apache plugged and abandoned the MC-674 wells as required under Section 18.4 of\nthe Contract?”\n 29 Cadwallader v. Allstate Ins. Co., 848 So. 2d 577, 580 (La. 2003).\n\n 12\n\f Case: 17-20599 Document: 00515035583 Page: 13 Date Filed: 07/16/2019\n\n\n\n No. 17-20599\ninterpretation may be made in search of the parties’ intent.” 30 “[I]f a court finds\nthe contract to be unambiguous, it may construe the intent from the face of the\ndocument—without considering extrinsic evidence—and enter judgment as a\nmatter of law.” 31 If the court determines that there is an ambiguity, the\nquestion of intent is an issue of fact. 32 “Louisiana courts will not interpret a\ncontract in a way that leads to unreasonable consequences or inequitable or\nabsurd results even when the words used in the contract are fairly explicit.” 33\n Applying Section 6.2’s expenditure provision to a government-mandated\nP&A undertaken pursuant to Section 18.4 would lead to an absurd\nconsequence: namely a situation where a non-operator is empowered to hold\nan operator hostage, preventing the operator from completing a legally\nrequired P&A, in order to extract a better bargain or avoid cost-sharing\naltogether. The oddity of that result is compounded by the fact that Section\n18.4 has its own cost-sharing provision, 34 making the idea that the operator\nwas required to obtain an AFE to complete the P&A less tenable. In light of\nthat absurd consequence, the district court correctly concluded that the jury\nneeded to resolve the question of the parties’ intent. 35 We agree therefore that\n\n\n 30 La. Civ. Code art. 2046.\n 31 Preston Law Firm, L.L.C. v. Mariner Health Care Mgmt Co., 622 F.3d 384, 392 (5th\nCir. 2010) (internal citation omitted).\n 32 Gebreyesus v. F.C. Schaffer & Assocs., Inc., 204 F.3d 639, 643 (5th Cir. 2000).\n 33 Tex. E. Transmission Corp. v. Amerada Hess Corp., 145 F.3d 737, 742 (5th Cir.\n\n1998); see also La. Civ. Code art. 2046 (“When the words of a contract are clear and explicit\nand lead to no absurd consequences, no further interpretation may be made in search of the\nparties’ intent.”).\n 34 “The Operator shall conduct the abandonment and removal of any well, Production\n\nSystem or Facilities required by a governmental authority, and the Costs, risks and net\nproceeds will be shared by the Participating Parties in such well, Production System or\nFacilities according to their Participating Interest Share.”\n 35 La. Civ. Code art. 2046 (“When the words of a contract are clear and explicit and\n\nlead to no absurd consequences, no further interpretation may be made in search of the\nparties’ intent.”); Stewart Enters., Inc. v. RSUI Indem. Co., Inc., 614 F.3d 117 (5th Cir. 2010)\n(holding that the most straightforward reading of the contract would lead to an absurd result\nthat “could not have been intended by the parties”).\n 13\n\f Case: 17-20599 Document: 00515035583 Page: 14 Date Filed: 07/16/2019\n\n\n\n No. 17-20599\nthe question of whether Section 6.2’s expenditure requirement applies to\ngovernment-mandated P&A undertaken pursuant to Section 18.4—which\nitself mandates cost-sharing—is ambiguous and was properly put to the jury.\n W&T’s response to the absurdity concern is unavailing. It suggests that\nif the parties fail to agree on costs through the AFE process, the government\ncan simply conduct the P&A operation itself and charge the operator and non-\noperator later. 36 W&T does not dispute that federal law required the P&A\noperation of the Wells—rather it reads the Section 6.2 AFE requirement to\napply to government-mandated P&A operations and urges that Apache, having\nfailed to obtain an AFE from W&T, could have decided not to comply with\nfederal regulations and allow the government to P&A the Wells itself. Allowing\nApache to evade its obligations under federal law to P&A the Wells is contrary\nto its duty to conduct all operations as would a prudent operator. 37 W&T’s\nproposed answer to the troubling consequences of its reading is no solution at\nall.\n V.\n Finally, W&T claims that even if Apache was not barred from recovering\ndamages, W&T is entitled to an offset based on Jury Question No. 5 and that\nthe damages award of $43,214,515.83 should be reduced by $17 million. As to\nthe legal basis for the offset, W&T points to “the basic law of damages” in\nLouisiana set out in La. Civ. Code art. 1995 that damages cannot place the\nobligee in a better position than it would have been in if the contract had been\nfulfilled. W&T posits that the jury determined that a $17 million offset was\n\n\n\n 36“If parties cannot agree about costs and thus fail to P&A wells, the government can\narrange for the P&A, deem the bond the working interest owners were required to provide\nforfeited to the amount that would cover P&A costs, and charge the working interest owners\nfor any excess costs.”\n 37 “The Operator shall conduct all operations in a good and workmanlike manner, as\n\nwould a prudent operator under the same or similar circumstances.”\n 14\n\f Case: 17-20599 Document: 00515035583 Page: 15 Date Filed: 07/16/2019\n\n\n\n No. 17-20599\nappropriate to account for the savings that Apache enjoyed by not incurring\nthe stacking costs for the rigs. In its view, the jury credited testimony that\nApache would have incurred stacking costs between $29.5 million and $36.4\nmillion and adopted the $17 million figure as a reasonable determination of\nApache’s windfall. The district court denied W&T’s motion for entry of\njudgment and motion for a new trial, concluding that W&T was not entitled to\nan offset on the basis of Question 5. Specifically, the district court determined\nthat Questions 2 and 5 were not linked, and offset was unavailable as an\naffirmative defense under any of W&T’s theories.\n Article 1995 provides that “[d]amages are measured by the loss\nsustained by the obligee and the profit of which he has been deprived.” 38 “The\nmeasure of damages for a breach of contract is the sum that will place plaintiff\nin the same position as if the obligation had been fulfilled.” 39 On Question 2,\nthe jury was instructed in accordance with Article 1995 to calculate “an\namount that is fair compensation for those damages.” The court then explained\nto the jury:\n Damages are measured by the loss sustained by the non-breaching\n party. These are called compensatory damages. The damages\n amount is the amount that will place Apache in the position it\n would have been in if the parties’ contract had been properly\n performed. The damages include the amount a party owed under\n the contract.\n\nThe jury was instructed to determine the actual loss sustained without\nreference to Question 5. W&T’s own closing argument emphasized this\nunderstanding, encouraging the jury in calculating an amount for Question 2\nto subtract the amount of savings W&T attributed to Apache’s avoiding the\n\n\n\n 38 La. Civ. Code art. 1995.\n 39 Gloria’s Ranch LLC v. Tauren Exploration, Inc., 252 So. 3d 431, 445–46 (La. 2018)\n(internal citation and quotation marks omitted).\n 15\n\f Case: 17-20599 Document: 00515035583 Page: 16 Date Filed: 07/16/2019\n\n\n\n No. 17-20599\nstacking costs by using the rigs. 40 W&T’s offset argument on appeal ignores\nthe fact that the jury instructions with respect to Question 2 tracked the\nlanguage of Article 1995. The two cases W&T relies on do not offer a theory\nentitling W&T to offset. In Evangeline Parish School Bd. v. Energy Contracting\nServs., Inc., the Louisiana appellate court considered a damages award in favor\nof an obligee to an energy-savings services contract. 41 The court reaffirmed the\ngeneral principle of Article 1995 that “[d]amages for obligor’s failure to perform\nare measured by the loss sustained by the obligee and the profit of which he\nhas been deprived” and remanded, noting that the experts failed to calculate\nthe amount overcharged and the appellate court was therefore “unable to make\nsuch a determination from the record.” 42 There is no lack of clarity in the record\nhere—W&T simply disputes the jury’s rejection of its stacking costs theory. In\nSwoboda v. SMT Prop., LLC, the Louisiana appellate court considered the\ndamages award in a contract dispute involving the construction of a residential\nhome. 43 In accordance with Article 1995, the court “consider[ed] the benefit to\nplaintiffs in maintaining ownership and possession of the adjacent lot [and]\nconclude[ed] that plaintiffs [we]re not entitled to reimbursement.” 44 Again,\nW&T ignores that the jury was instructed in accordance with Article 1995 and\nexplicitly calculated the actual loss sustained by Apache. W&T’s stacking costs\ntheory was rejected by the jury and it has offered no legal theory to support\nupsetting that verdict.\n\n\n\n\n 40 “Number two is the damage issue. We believe that if you get to that issue, and you\nbelieve that somehow damages should be awarded in this case, they say it is 43.2 million. We\nthink they benefited anywhere . . . between 29 to 36 million. So we believe you should subtract\nthat from any damage amount you decide to award in the case.”\n 41 617 So. 2d 1259 (La. App. 3d. 1993).\n 42 Id. at 1267.\n 43 975 So. 2d 691 (La. App. 2008).\n 44 Id. at 695.\n\n 16\n\f Case: 17-20599 Document: 00515035583 Page: 17 Date Filed: 07/16/2019\n\n\n\n No. 17-20599\n W&T posits two additional legal bases to support an offset in Apache’s\ndamages award. First, W&T suggests that Article 2323, governing comparative\nfault, provides an independent legal basis for a reduction. Article 2323 applies\nin tort cases; the Civil Code provides its own rule governing comparative fault\nin contract cases—Article 2003—that we have already determined does not aid\nW&T here. 45 W&T also claims the doctrine of compensation under Article 1893\ngives independent grounds for an offset. 46 As the district court correctly noted,\nW&T “previously admitted neither [compensation or unjust enrichment] could\nbe the basis of the jury’s finding, as that was not the nature of the evidence\npresented to the jury.” In its post-verdict briefing, W&T conceded that Article\n1893 did not apply, because “the jury was not instructed on the specific\nrequirements of the traditional doctrine of offset or setoff, which requires debts\nowed by both parties being offset against each other.” Neither comparative\nfault nor compensation provide a basis for a reduction in the damages award\nhere.\n Finally, W&T offers a last-ditch argument that the jury award was\nclearly excessive because of Apache’s savings on the stacking costs. The district\ncourt did not abuse its discretion in denying W&T’s motion for a new trial or\nremittitur. We agree with the district court the damages award was supported\nby substantial evidence. The jury logically awarded the precise amount that\nW&T shorted by making a partial payment after the P&A operation. Such an\naward was not excessive or “contrary to right reason”—rather, it reflects that\n\n\n\n\n 45See Justiss Oil Co. v. Oil Country Tubular Corp., 216 So. 3d 346, 356–57 (La. Ct.\nApp.), writ denied, 227 So. 3d 830 (La. 2017) (quoting Hanover Ins. Co. v. Plaquemines Parish\nGov’t, No. 12–1680, 2015 WL 4167745, at *5–6 (E.D. La. July 9, 2015).\n 46 Article 1893 provides that “Compensation takes place by operation of law when two\n\npersons owe to each other sums of money or quantities of fungible things identical in kind,\nand these sums or quantities are liquidated and presently due. In such a case, compensation\nextinguishes both obligations to the extent of the lesser amount.” La. Civ. Code art. 1893.\n 17\n\f Case: 17-20599 Document: 00515035583 Page: 18 Date Filed: 07/16/2019\n\n\n\n No. 17-20599\nthe jury’s consideration of the evidence led it to reject W&T’s assertion that\nApache enjoyed a windfall by avoiding the stacking costs. 47\n VI.\n For the foregoing reasons, the judgment of the district court is affirmed.\n\n\n\n\n 47 Laxton v. Gap, Inc., 333 F.3d 572, 586 (5th Cir. 2003) (“When a damage award is\nmerely excessive or so large as to appear contrary to right reason, remittitur is the\nappropriate remedy.”).\n 18\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: APACHE DEEPWATER, L.L.C., Plaintiff - Appellee v. W&T OFFSHORE, INCORPORATED, Defendant - Appellant\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-16\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-20599 Document: 00515035583 Page: 1 Date Filed: 07/16/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n United States Court of Appeals\\n\\n No. 17-20599 Fifth Circuit\\n\\n FILED\\n July 16, 2019\\nAPACHE DEEPWATER, L.L.C., Lyle W. Cayce\\n Clerk\\n Plaintiff - Appellee\\n\\nv.\\n\\nW&T OFFSHORE, INCORPORATED,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.\\nPATRICK E. HIGGINBOTHAM, Circuit Judge:\\n This dispute arises from a successful plugging and abandonment\\noperation of three offshore oil and gas wells in the Mississippi Canyon area of\\nthe Gulf of Mexico. Apache Deepwater, LLC performed the operation and seeks\\npayment from its non-operator partner, W&T Offshore, Inc. A jury awarded\\n$43.2 million to Apache for W&T’s breach of the Joint Operating Agreement.\\nW&T challenges the district court’s application of the Louisiana Civil Code and\\ninterpretation of the contract. Alternatively, W&T contends that it is entitled\\nto an offset in damages because of Apache’s bad faith. Finding no error, we\\naffirm.\\n\\f Case: 17-20599 Document: 00515035583 Page: 2 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\n I.\\n In May 1999, Apache and W&T’s predecessors entered into a Joint\\nOperating Agreement (“JOA”) that governed the operation of three offshore\\ndeepwater oil and gas wells (the “Wells”) in the Mississippi Canyon area of the\\nGulf of Mexico. This dispute arises from operator Apache’s plugging and\\nabandonment (“P&A”) of the Wells.\\n In 2012, Apache attempted to P&A the Wells with an intervention vessel\\ncalled Uncle John with the consent of W&T, but that operation was\\nunsuccessful. Following that failure, Apache contracted to use a different\\nintervention vessel, the Helix-534 (“Helix”). An internal figure by Apache\\nestimated that the cost to P&A the Wells with the Helix was approximately\\n$56,350,000. In June 2014, W&T contacted Apache to set up a status\\nconference in July discussing the P&A operation, confirming that W&T knew\\n“that the Helix 534 is contracted for the project.” At that meeting, W&T learned\\nthat Apache proposed using two drilling rigs for the project instead of the Helix,\\nthe Ocean Onyx (“Onyx”) and Ensco-8505 (“Ensco”).\\n W&T and Apache offered to the jury competing explanations for the\\nswitch from the Helix to the Onyx and Ensco drilling rigs. By W&T’s telling,\\nApache’s decision to use the Onyx and Ensco was a simple matter of cost: W&T\\ncontends that Apache entered into a contract for the two drilling rigs for the\\npurpose of drilling new deepwater wells, but abandoned that project in 2014\\nand was left with exorbitant stacking costs for the idle rigs (approximately\\n$1,000,000 per day). W&T asserts that Apache’s decision to use the rigs instead\\nof the Helix was an attempt to recoup on the costs of contracting for the unused\\nrigs because Apache had been unsuccessful in unloading the rigs onto another\\noperator. Prior to the July meeting, Apache prepared estimates for the use of\\nthe rigs which totaled between $81 and $104 million. W&T points to an\\ninternal presentation in which Apache was weighing the costs of using the\\n 2\\n\\f Case: 17-20599 Document: 00515035583 Page: 3 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\nHelix against the rigs and determining that with the stacking costs Apache\\nwas paying for the idle rigs, the use of the rigs would be cheaper because the\\ncost would be split with W&T. Apache cancelled the Helix contract. W&T\\nclaims that although Apache purported to rely on written evaluations\\nexplaining the technical reasons the rigs were necessary (including that the\\nHelix no longer complied with government regulations), Apache refused to\\nprovide those analyses to W&T.\\n Apache rejects W&T’s economic explanation and argues that the Helix\\nwas not a safe option after the Deepwater Horizon spill and the government\\nregulators would not have approved the Helix for the P&A operations. Apache\\nput on evidence that it had discussed the risks of using the Helix with W&T,\\nand demonstrated that technical difficulties posed by the Wells would make\\nthe “open water” operations of the Helix environmentally risky, that the Wells\\nwere “high risk,” and that the drilling rigs were able to conduct the P&A\\noperations with safeguards mitigating the risk of oil spills. Apache also claimed\\nthat the federal Bureau of Safety and Environmental Enforcement (“BSEE”)\\nadvised Apache that it was no longer approving the type of open-water\\noperations that Helix would need to perform to complete the P&A task. In\\nApache’s version, W&T began “actively resisting” the P&A plan using the rigs\\nbecause the Helix operation would be far cheaper for W&T and W&T was\\ndisregarding the environmental risk. 1 Apache argued to the jury that W&T\\nignored the fact that Helix would have had operational issues that would have\\n\\n\\n\\n\\n 1 Apache points to an internal e-mail from W&T’s vice president Cliff Williams in\\nwhich he wrote: “I’d like to determine options should we not agree with operators plan and\\nbelieve we can perform well abandonments cheaper. Can we non-consent and take over\\nabandonment operations with Apache obligated to pay their share of estimated abandonment\\ncosts?”\\n 3\\n\\f Case: 17-20599 Document: 00515035583 Page: 4 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\nincreased the costs of the operation past the initial estimates and that the use\\nof the rigs was “reasonably necessary.”\\n Amid their dispute over the appropriate intervention vessel, Apache\\nsought W&T’s approval for use of the rigs through an Authorizations for\\nExpenditure (“AFE”), but W&T decided not to approve the use of the rigs, 2 and\\nrejected two other requests for AFEs. Apache decided to use the rigs for the\\nP&A and the work was successfully completed in February 2015 for a total cost\\nof $139,900,000. Apache billed W&T for its contractual 49% share, or\\n$68,570,000. W&T decided to pay $24,860,640, which represented 49% of the\\nestimate for use of the Helix, contending that “Apache’s insistence on using a\\ndrilling rig unnecessarily and unreasonably increased the costs of this work,”\\nand determining that it was not obligated to pay the full billed amount because\\nit had not approved the AFEs.\\n Apache sued for breach of contract in Texas state court in December 2014\\nand the case was removed by W&T in January 2015. Prior to trial, W&T moved\\nfor summary judgment on Apache’s breach of contract claim, arguing that the\\nJOA was unambiguous in requiring the operator (Apache) to obtain an\\napproved AFE before expending over $200,000. The parties’ argument turned\\non the reading of two provisions in the JOA: § 6.2 governing authorizations for\\nexpenditures and § 18.4 governing abandonment operations required by the\\ngovernment:\\n 6.2. Authorization for Expenditure: The Operator shall not\\n make any single expenditure or undertake any activity or\\n\\n\\n 2 In its response, W&T stated: “We believe Apache, as a prudent operator, has an\\nobligation to conduct the operation in a cost effective and safe manner in compliance with all\\ngovernmental regulations. We do not understand why Apache continues to advocate the use\\nof the Ensco 8505 rig when it is clear that an intervention vessel could safely perform the\\nabandonment work at a much lower cost. . . . We do not believe W&T should be obligated to\\npay the additional charges arising from the use of the Ensco rig when other less expensive\\noptions are available.”\\n 4\\n\\f Case: 17-20599 Document: 00515035583 Page: 5 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\n operation costing Two Hundred Thousand Dollars ($200,000) or\\n more, unless an AFE has either (1) been included in a proposal for\\n an activity or operation and is approved by the Participating\\n Parties through their Election to participate in the activity or\\n operation, or (2) received the approval of the Parties as a General\\n Matter. When executed by a party, an AFE grants the Operator\\n the authority to commit or expend funds on the activity or\\n operation in accordance with this Agreement for the account of the\\n Participating Parties. . . .\\n\\n 18.4. Abandonment Operations Requirement by\\n Governmental Authority: The Operator shall conduct the\\n abandonment and removal of any well, Production System or\\n Facilities required by a governmental authority, and the Costs,\\n risks and net proceeds will be shared by the Participating Parties\\n in such well, Production System or Facilities according to their\\n Participating Interest Share.\\n\\n The district court denied W&T’s motion for summary judgment and\\ndetermined that the interaction of the provisions in the JOA was ambiguous,\\ncreating an issue of fact as to the “parties’ intent on the applicability of § 6.2 to\\na government-mandated plugging and abandonment operation governed by\\n§ 18.4.” The case proceeded to trial and the jury made five findings:\\n (1) Did W&T fail to comply with the Contract by failing to pay its\\n proportionate share of the costs to plug and abandon the MC 674 wells?\\n Yes.\\n (2) What sum of money, if any, would compensate Apache for W&T’s\\n failure to pay its proportionate share of costs to plug and abandon the\\n MC 674 wells? $43,214,515.83.\\n (3) Was Apache required to obtain W&T’s approval under Section 6.2 of\\n the Contract before Apache plugged and abandoned the MC 674 wells as\\n required under Section 18.4 of the Contract? No.\\n\\n\\n\\n\\n 5\\n\\f Case: 17-20599 Document: 00515035583 Page: 6 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\n (4) Did Apache act in bad faith, thereby causing W&T to not comply with\\n the contract? Yes.\\n (5) By what amount, if any, should the amount you found in response to\\n Jury Question No. 2 be offset? $17,000,000.\\nFollowing trial, the court entered its order and final judgment, determining\\nthat the jury’s “bad faith” finding in Question 4 did not preclude Apache’s\\nrecovery for breach of contract under Louisiana law and holding that W&T was\\nnot entitled to an offset under Louisiana law. The district court also denied\\nW&T’s motion for a new trial or remittitur and renewed motion for judgment\\nas a matter of law. This appeal followed.\\n II.\\n This court reviews the denial of a Rule 50(b) renewed motion for\\njudgment as a matter of law de novo, “but our standard of review with respect\\nto a jury verdict is especially deferential.” 3 A party is only entitled to judgment\\nas a matter of law on an issue where no reasonable jury would have had a\\nlegally sufficient evidentiary basis to find otherwise. 4 In evaluating the\\nevidence, this court “credit[s] the non-moving party’s evidence and disregard[s]\\nall evidence favorable to the moving party that the jury is not required to\\nbelieve.” 5 This court also has jurisdiction “to hear an appeal of the district\\ncourt’s legal conclusions in denying summary judgment, but only if it is\\nsufficiently preserved in a Rule 50 motion.” 6\\n “A district court’s resolution of a motion for new trial is reviewed for\\nabuse of discretion, and ‘[t]he district court abuses its discretion by denying a\\n\\n\\n\\n 3 Olibas v. Barclay, 838 F.3d 442, 448 (5th Cir. 2016) (quoting Evans v. Ford Motor\\nCo., 484 F.3d 329, 334 (5th Cir. 2007)) (internal quotation marks omitted).\\n 4 FED. R. CIV. P. 50(a)(1).\\n 5 Janvey v. Romero, 817 F.3d 184, 187 (5th Cir. 2016) (quoting Abraham v. Alpha Chi\\n\\nOmega, 708 F.3d 614, 620 (5th Cir. 2013)) (internal quotation marks omitted).\\n 6 Feld Motor Sports, Inc. v. Traxxas, L.P., 861 F.3d 591, 596 (5th Cir. 2017).\\n\\n 6\\n\\f Case: 17-20599 Document: 00515035583 Page: 7 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\nnew trial only when there is an “absolute absence of evidence to support the\\njury's verdict.”’” 7 “A motion for a new trial or to amend a judgment cannot be\\nused to raise arguments which could, and should, have been made before the\\njudgment issued.” 8 “To the extent that a Rule 59(e) ruling was a\\nreconsideration of a question of law, . . . the standard of review is de novo.” 9\\n III.\\n W&T contends that the plain language of Louisiana Civil Code Article\\n2003 dictates that the jury’s bad faith finding bars Apache’s recovery for breach\\nof contract. Article 2003 states that\\n An obligee may not recover damages when his own bad faith has\\n caused the obligor’s failure to perform or when, at the time of the\\n contract, he has concealed from the obligor facts that he knew or\\n should have known would cause a failure.\\n\\n If the obligee’s negligence contributes to the obligor’s failure to\\n perform, the damages are reduced in proportion to that\\n negligence. 10\\n\\nIn answering the fourth question on the verdict form, the jury found that\\n“Apache act[ed] in bad faith thereby causing W&T to not comply with the\\ncontract.”\\n The district court denied W&T’s motion for judgment as a matter of law,\\nconcluding that it was bound by the Louisiana Supreme Court’s decision in\\n\\n\\n\\n\\n 7 McCaig v. Wells Fargo Bank (Tex.), N.A., 788 F.3d 463, 472 (5th Cir. 2015) (quoting\\nWellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 881 (5th Cir. 2013)).\\n 8 Garriot v. NCsoft Corp., 661 F.3d 243, 248 (5th Cir. 2011) (citation omitted) (internal\\n\\nquotation marks omitted).\\n 9 Hoffman v. L&M Arts, 838 F.3d 568, 581 (5th Cir. 2016) (internal quotation marks,\\n\\ncitations, and alterations omitted). The parties dispute whether the district court’s denial of\\nW&T’s Rule 59 motion involved a pure question of law, with W&T arguing that it did and\\nApache suggesting that W&T’s motion merely criticized the evidence presented at trial. The\\nRule 59 motion and district court’s ruling is discussed below in Section III.\\n 10 La. Civ. Code art. 2003.\\n\\n 7\\n\\f Case: 17-20599 Document: 00515035583 Page: 8 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\nLamar Contractors, Inc. v. Kacco, Inc. 11 The district court determined that,\\nunder Lamar, Article 2003’s bad faith damages bar is only implicated where\\nthe obligor has established that the obligee failed to perform a contractual\\nobligation that caused the obligor’s failure to perform. In other words, to avoid\\nliability pursuant to Article 2003’s bad faith bar, W&T would have to show that\\nApache failed in its performance of the contract and that failure caused W&T’s\\nbreach. Because the jury did not find that Apache had breached any obligation\\nunder the contract, 12 the district court reasoned that it was required to set\\naside the jury’s finding on Question 4—that Apache’s bad faith caused W&T’s\\nfailure to perform—meaning Apache was not barred from recovery under\\nArticle 2003.\\n W&T disputes the district court’s reading of and reliance on Lamar,\\narguing that (1) Lamar is not binding on this court because it is not\\njurisprudence constante and this court must instead follow the plain language\\nof Article 2003, which contains no language limiting Article 2003’s application\\nto situations where the obligee has breached; (2) Lamar’s holding is limited to\\nArticle 2003’s negligence clause; and (3) application of Lamar is contrary to\\npublic policy.\\n In diversity cases where this court must apply Louisiana substantive\\nlaw, 13 “we look to the final decisions of the Louisiana Supreme Court.” 14 In the\\nabsence of a final decision by the state’s supreme court, we make an Erie guess,\\nwhich requires us to “employ Louisiana’s civilian methodology, whereby we\\n\\n\\n\\n 11 189 So. 3d 394 (La. 2016).\\n 12 The district court noted that the jury considered and rejected that Apache had\\nbreached. For example, had the jury answered Question 3 in the affirmative, that would have\\namounted to a finding that Apache had breached an obligation under the contract. Question\\n3 asked whether Apache was required to obtain W&T’s approval under § 6.2 before\\ncompleting the P&A as required by § 18.4, which the jury answered in the negative.\\n 13 Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).\\n 14 In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007).\\n\\n 8\\n\\f Case: 17-20599 Document: 00515035583 Page: 9 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\nfirst examine primary sources of law: the constitution, codes, and statutes.” 15\\nEven caselaw rising to the level of jurisprudence constante is “secondary law in\\nLouisiana” 16 and, accordingly, we are not strictly bound by the decisions of\\nLouisiana’s intermediate appellate courts. 17 So, it is only when the Louisiana\\nSupreme Court has not made a determinative decision that this court must\\nmake an Erie guess, employing Louisiana’s civilian methodology. 18\\n The parties dispute whether Lamar speaks definitively on the issue of\\nwhether Article 2003 bars recovery of damages only when the obligee has been\\nfound in breach. In Lamar, the Louisiana Supreme Court considered a trial\\ncourt’s decision to reduce breach of contract damages awarded to a general\\ncontractor, Lamar, after finding that Lamar had contributed to the\\nsubcontractor’s failure to perform. 19 The obligation imposed by Article 2003 is\\n“correlative to the general duty imposed by [Article] 1983, which requires\\n‘contracts must be performed in good faith.’” 20 However, the court warned that\\nthe duty of good faith is not to be considered in isolation, and that it is\\ncircumscribed by the obligations imposed by the contract. 21 The court noted\\nthat “[a]lthough we have not had occasion to consider [Article] 2003 since its\\n\\n\\n\\n 15 Id. at 206 (quoting Am Int’l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d\\n254, 260 (5th Cir. 2003)).\\n 16 Prytania Park Hotel, Ltd. v. Gen. Star Indem. Co., 179 F.3d 169 (5th Cir. 1999).\\n 17 In re Katrina, 495 F.3d at 206 (“Thus, although we will not disregard the decisions\\n\\nof Louisiana’s intermediate courts unless we are convinced that the Louisiana Supreme\\nCourt would decide otherwise, we are not strictly bound by them.”) (citing Am Int’l Specialty\\nLines, 352 F.3d at 261).\\n 18 Boyett v. Redland Ins. Co., 741 F.3d 604, 607 (5th Cir. 2014); see also Moore v. State\\n\\nFarm Fire & Cas. Co., 556 F.3d 264, 269–70 (5th Cir. 2009) (“To determine Louisiana law,\\nwe look to the final decisions of the Louisiana Supreme Court. In the absence of a final\\ndecision by the Louisiana Supreme Court, we must make an Erie guess . . . . When faced with\\nunsettled questions of Louisiana law we adhere to Louisiana’s civilian decision-making\\nprocess.”).\\n 19 Lamar, 189 So. 3d at 395–97.\\n 20 Id. (citing La. Civ. Code art. 1983) (internal alteration omitted).\\n 21 Id. at 398.\\n\\n 9\\n\\f Case: 17-20599 Document: 00515035583 Page: 10 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\nenactment in 1985, jurisprudence interpreting the predecessor article . . .\\nemphasized that the obligor must establish that the obligee breached the\\ncontract, thereby making it more difficult for the obligor to perform its\\nobligation.” 22 It concluded: “[A]n obligor cannot establish an obligee has\\ncontributed to the obligor’s failure to perform unless the obligor can prove the\\nobligee itself failed to perform duties owed under the contract. Stated in other\\nwords, Kacco must demonstrate that Lamar failed to perform its obligations\\nunder the contract, which in turn contributed to Kacco’s breach of the\\ncontract.” 23 The question of the obligee’s bad faith does not become relevant\\nuntil there is a determination that the obligee failed to perform a contractual\\nobligation that in turn caused the obligor’s failure to perform. 24 For Article\\n2003 to apply as a damages bar, there must be an antecedent determination of\\nbreach.\\n While W&T urges that the Louisiana Supreme Court’s reading was\\nlimited to the second sentence of Article 2003—the negligence prong—the\\nLamar court drew no such limitation. 25 The reasoning of Lamar did not depend\\non the relationship between bad faith and negligence. W&T offers no principled\\nreason why the Louisiana Supreme Court would have chosen not to recognize\\na requirement of breach had the obligee in that case acted in bad faith, rather\\nthan negligently. Indeed, we find no distinction in Lamar. Because Lamar is\\ncontrolling here, the district court correctly concluded that the good-faith\\ninquiry in Article 2003 is limited to situations where the obligee has\\n\\n\\n\\n\\n 22 Id. (referring to its decisions in Board of Levee Com’rs of Orleans Levee Dist. v. Hulse,\\n120 So. 589, 590 (La. 1929) and Favrot v. Favrot, 68 So. 3d 1099, 1109 (La. Ct. App. 2011)).\\n 23 Id.\\n 24 Id. at 399 (summarizing the intermediate appellate court’s conclusion in Favrot that\\n\\n“the question of a party’s good or bad faith does not become relevant until there has been a\\ndetermination that the party failed to perform an obligation under the contract”).\\n 25 Id.\\n\\n 10\\n\\f Case: 17-20599 Document: 00515035583 Page: 11 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\nbreached. 26 The jury did not find that Apache breached so Article 2003 does\\nnot bar Apache’s entitlement to damages as a matter of law.\\n IV.\\n W&T also contends that the case never should have gone before a jury\\nbecause W&T did not breach the contract as a matter of law. Section 6.2 of the\\nJOA provides that the operator “shall not make any single expenditure or\\nundertake any activity or operation costing Two Hundred Thousand Dollars\\n($200,000 or more), unless an AFE [is approved].” W&T reads that provision\\nin conjunction with Exhibit C, governing accounting, which provides that\\n“[a]cceptable reasons for non-payment or short payment . . . are as follows: . . .\\nwhen an AFE is not approved.” Together, W&T argues, those provisions\\nunambiguously resolve the issue of whether W&T breached. Because W&T as\\nthe non-operator decided not to approve any AFE, it contends that it was\\nentitled to short the payment (and pay its share of the Helix P&A estimate)\\nwithout being found in breach of the JOA. W&T emphasizes that Section 6.2\\ndoes not contain an explicit exception for government-mandated operations\\nundertaken pursuant to Section 18.4 and suggests that AFE approval was\\nrequired even for operations performed under that Section. W&T points out\\nthat the parties understood how to make an exception to Section 6.2 and did so\\nin a separate instance, exempting the operator from obtaining AFE approval\\nin the event of a safety-threatening emergency. 27\\n\\n\\n 26 W&T suggests as a last resort that this court may certify the question to the\\nLouisiana Supreme Court. Because we conclude that the Louisiana Supreme Court resolved\\nthis issue in Lamar, certification is unnecessary here. Cf. Janvey v. Golf Channel, Inc., 792\\nF.3d 539, 547 (5th Cir. 2015) (“Given . . . that this is a question of state law that no on-point\\nprecedent from the Supreme Court of Texas has resolved, that the Supreme Court of Texas\\nis the final arbiter of Texas’s law . . . we believe it is best to certify the question at issue.”).\\n 27 “Notwithstanding the foregoing, in the event of an emergency which poses a threat\\n\\nto life, safety, property, or the environment, the Operator is empowered to immediately make\\nsuch expenditures for the Joint Account as, in its opinion as a reasonable and prudent\\nOperator, are necessary to deal with the emergency.”\\n 11\\n\\f Case: 17-20599 Document: 00515035583 Page: 12 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\n Apache disputes W&T’s reading of the contract, arguing that under\\nSection 18.4, which covers government-mandated P&A operations, Apache was\\nrequired to undertake its P&A of the Wells as the operator and was authorized\\nto do so without obtaining an AFE from W&T pursuant to Section 6.2. Section\\n18.4 provides that\\n The Operator shall conduct the abandonment and removal of any\\n well, Production System or Facilities required by a governmental\\n authority, and the Costs, risks and net proceeds will be shared by\\n the Participating Parties in such well, Production System or\\n Facilities according to their Participating Interest Share.\\n\\nApache asserts that this provision contemplates cost-sharing between the\\nparties and does not incorporate Section 6.2’s AFE process. Apache stresses\\nthat requiring a Section 6.2 AFE for a government-mandated P&A operation\\nwould lead to an absurd result because the non-operator could essentially hold-\\nup an operator from completing a P&A required by federal law to avoid sharing\\nthe costs.\\n The district court denied W&T’s motion for summary judgment,\\nconcluding that the interplay between Section 6.2 and Section 18.4 was\\nambiguous, leaving a material question of fact as to the parties’ intent. In\\nanswering Question Three, the jury found that Apache was not required to\\nobtain W&T’s approval through an AFE before conducting the P&A as required\\nby Section 18.4 28\\n Whether contract language is ambiguous under Louisiana law is a\\nquestion of law. 29 Under Louisiana law, “[w]hen the words of a contract are\\nclear and explicit and lead to no absurd consequences, no further\\n\\n\\n\\n 28 “Was Apache required to obtain W&T’s approval under Section 6.2 of the Contract\\nbefore Apache plugged and abandoned the MC-674 wells as required under Section 18.4 of\\nthe Contract?”\\n 29 Cadwallader v. Allstate Ins. Co., 848 So. 2d 577, 580 (La. 2003).\\n\\n 12\\n\\f Case: 17-20599 Document: 00515035583 Page: 13 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\ninterpretation may be made in search of the parties’ intent.” 30 “[I]f a court finds\\nthe contract to be unambiguous, it may construe the intent from the face of the\\ndocument—without considering extrinsic evidence—and enter judgment as a\\nmatter of law.” 31 If the court determines that there is an ambiguity, the\\nquestion of intent is an issue of fact. 32 “Louisiana courts will not interpret a\\ncontract in a way that leads to unreasonable consequences or inequitable or\\nabsurd results even when the words used in the contract are fairly explicit.” 33\\n Applying Section 6.2’s expenditure provision to a government-mandated\\nP&A undertaken pursuant to Section 18.4 would lead to an absurd\\nconsequence: namely a situation where a non-operator is empowered to hold\\nan operator hostage, preventing the operator from completing a legally\\nrequired P&A, in order to extract a better bargain or avoid cost-sharing\\naltogether. The oddity of that result is compounded by the fact that Section\\n18.4 has its own cost-sharing provision, 34 making the idea that the operator\\nwas required to obtain an AFE to complete the P&A less tenable. In light of\\nthat absurd consequence, the district court correctly concluded that the jury\\nneeded to resolve the question of the parties’ intent. 35 We agree therefore that\\n\\n\\n 30 La. Civ. Code art. 2046.\\n 31 Preston Law Firm, L.L.C. v. Mariner Health Care Mgmt Co., 622 F.3d 384, 392 (5th\\nCir. 2010) (internal citation omitted).\\n 32 Gebreyesus v. F.C. Schaffer & Assocs., Inc., 204 F.3d 639, 643 (5th Cir. 2000).\\n 33 Tex. E. Transmission Corp. v. Amerada Hess Corp., 145 F.3d 737, 742 (5th Cir.\\n\\n1998); see also La. Civ. Code art. 2046 (“When the words of a contract are clear and explicit\\nand lead to no absurd consequences, no further interpretation may be made in search of the\\nparties’ intent.”).\\n 34 “The Operator shall conduct the abandonment and removal of any well, Production\\n\\nSystem or Facilities required by a governmental authority, and the Costs, risks and net\\nproceeds will be shared by the Participating Parties in such well, Production System or\\nFacilities according to their Participating Interest Share.”\\n 35 La. Civ. Code art. 2046 (“When the words of a contract are clear and explicit and\\n\\nlead to no absurd consequences, no further interpretation may be made in search of the\\nparties’ intent.”); Stewart Enters., Inc. v. RSUI Indem. Co., Inc., 614 F.3d 117 (5th Cir. 2010)\\n(holding that the most straightforward reading of the contract would lead to an absurd result\\nthat “could not have been intended by the parties”).\\n 13\\n\\f Case: 17-20599 Document: 00515035583 Page: 14 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\nthe question of whether Section 6.2’s expenditure requirement applies to\\ngovernment-mandated P&A undertaken pursuant to Section 18.4—which\\nitself mandates cost-sharing—is ambiguous and was properly put to the jury.\\n W&T’s response to the absurdity concern is unavailing. It suggests that\\nif the parties fail to agree on costs through the AFE process, the government\\ncan simply conduct the P&A operation itself and charge the operator and non-\\noperator later. 36 W&T does not dispute that federal law required the P&A\\noperation of the Wells—rather it reads the Section 6.2 AFE requirement to\\napply to government-mandated P&A operations and urges that Apache, having\\nfailed to obtain an AFE from W&T, could have decided not to comply with\\nfederal regulations and allow the government to P&A the Wells itself. Allowing\\nApache to evade its obligations under federal law to P&A the Wells is contrary\\nto its duty to conduct all operations as would a prudent operator. 37 W&T’s\\nproposed answer to the troubling consequences of its reading is no solution at\\nall.\\n V.\\n Finally, W&T claims that even if Apache was not barred from recovering\\ndamages, W&T is entitled to an offset based on Jury Question No. 5 and that\\nthe damages award of $43,214,515.83 should be reduced by $17 million. As to\\nthe legal basis for the offset, W&T points to “the basic law of damages” in\\nLouisiana set out in La. Civ. Code art. 1995 that damages cannot place the\\nobligee in a better position than it would have been in if the contract had been\\nfulfilled. W&T posits that the jury determined that a $17 million offset was\\n\\n\\n\\n 36“If parties cannot agree about costs and thus fail to P&A wells, the government can\\narrange for the P&A, deem the bond the working interest owners were required to provide\\nforfeited to the amount that would cover P&A costs, and charge the working interest owners\\nfor any excess costs.”\\n 37 “The Operator shall conduct all operations in a good and workmanlike manner, as\\n\\nwould a prudent operator under the same or similar circumstances.”\\n 14\\n\\f Case: 17-20599 Document: 00515035583 Page: 15 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\nappropriate to account for the savings that Apache enjoyed by not incurring\\nthe stacking costs for the rigs. In its view, the jury credited testimony that\\nApache would have incurred stacking costs between $29.5 million and $36.4\\nmillion and adopted the $17 million figure as a reasonable determination of\\nApache’s windfall. The district court denied W&T’s motion for entry of\\njudgment and motion for a new trial, concluding that W&T was not entitled to\\nan offset on the basis of Question 5. Specifically, the district court determined\\nthat Questions 2 and 5 were not linked, and offset was unavailable as an\\naffirmative defense under any of W&T’s theories.\\n Article 1995 provides that “[d]amages are measured by the loss\\nsustained by the obligee and the profit of which he has been deprived.” 38 “The\\nmeasure of damages for a breach of contract is the sum that will place plaintiff\\nin the same position as if the obligation had been fulfilled.” 39 On Question 2,\\nthe jury was instructed in accordance with Article 1995 to calculate “an\\namount that is fair compensation for those damages.” The court then explained\\nto the jury:\\n Damages are measured by the loss sustained by the non-breaching\\n party. These are called compensatory damages. The damages\\n amount is the amount that will place Apache in the position it\\n would have been in if the parties’ contract had been properly\\n performed. The damages include the amount a party owed under\\n the contract.\\n\\nThe jury was instructed to determine the actual loss sustained without\\nreference to Question 5. W&T’s own closing argument emphasized this\\nunderstanding, encouraging the jury in calculating an amount for Question 2\\nto subtract the amount of savings W&T attributed to Apache’s avoiding the\\n\\n\\n\\n 38 La. Civ. Code art. 1995.\\n 39 Gloria’s Ranch LLC v. Tauren Exploration, Inc., 252 So. 3d 431, 445–46 (La. 2018)\\n(internal citation and quotation marks omitted).\\n 15\\n\\f Case: 17-20599 Document: 00515035583 Page: 16 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\nstacking costs by using the rigs. 40 W&T’s offset argument on appeal ignores\\nthe fact that the jury instructions with respect to Question 2 tracked the\\nlanguage of Article 1995. The two cases W&T relies on do not offer a theory\\nentitling W&T to offset. In Evangeline Parish School Bd. v. Energy Contracting\\nServs., Inc., the Louisiana appellate court considered a damages award in favor\\nof an obligee to an energy-savings services contract. 41 The court reaffirmed the\\ngeneral principle of Article 1995 that “[d]amages for obligor’s failure to perform\\nare measured by the loss sustained by the obligee and the profit of which he\\nhas been deprived” and remanded, noting that the experts failed to calculate\\nthe amount overcharged and the appellate court was therefore “unable to make\\nsuch a determination from the record.” 42 There is no lack of clarity in the record\\nhere—W&T simply disputes the jury’s rejection of its stacking costs theory. In\\nSwoboda v. SMT Prop., LLC, the Louisiana appellate court considered the\\ndamages award in a contract dispute involving the construction of a residential\\nhome. 43 In accordance with Article 1995, the court “consider[ed] the benefit to\\nplaintiffs in maintaining ownership and possession of the adjacent lot [and]\\nconclude[ed] that plaintiffs [we]re not entitled to reimbursement.” 44 Again,\\nW&T ignores that the jury was instructed in accordance with Article 1995 and\\nexplicitly calculated the actual loss sustained by Apache. W&T’s stacking costs\\ntheory was rejected by the jury and it has offered no legal theory to support\\nupsetting that verdict.\\n\\n\\n\\n\\n 40 “Number two is the damage issue. We believe that if you get to that issue, and you\\nbelieve that somehow damages should be awarded in this case, they say it is 43.2 million. We\\nthink they benefited anywhere . . . between 29 to 36 million. So we believe you should subtract\\nthat from any damage amount you decide to award in the case.”\\n 41 617 So. 2d 1259 (La. App. 3d. 1993).\\n 42 Id. at 1267.\\n 43 975 So. 2d 691 (La. App. 2008).\\n 44 Id. at 695.\\n\\n 16\\n\\f Case: 17-20599 Document: 00515035583 Page: 17 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\n W&T posits two additional legal bases to support an offset in Apache’s\\ndamages award. First, W&T suggests that Article 2323, governing comparative\\nfault, provides an independent legal basis for a reduction. Article 2323 applies\\nin tort cases; the Civil Code provides its own rule governing comparative fault\\nin contract cases—Article 2003—that we have already determined does not aid\\nW&T here. 45 W&T also claims the doctrine of compensation under Article 1893\\ngives independent grounds for an offset. 46 As the district court correctly noted,\\nW&T “previously admitted neither [compensation or unjust enrichment] could\\nbe the basis of the jury’s finding, as that was not the nature of the evidence\\npresented to the jury.” In its post-verdict briefing, W&T conceded that Article\\n1893 did not apply, because “the jury was not instructed on the specific\\nrequirements of the traditional doctrine of offset or setoff, which requires debts\\nowed by both parties being offset against each other.” Neither comparative\\nfault nor compensation provide a basis for a reduction in the damages award\\nhere.\\n Finally, W&T offers a last-ditch argument that the jury award was\\nclearly excessive because of Apache’s savings on the stacking costs. The district\\ncourt did not abuse its discretion in denying W&T’s motion for a new trial or\\nremittitur. We agree with the district court the damages award was supported\\nby substantial evidence. The jury logically awarded the precise amount that\\nW&T shorted by making a partial payment after the P&A operation. Such an\\naward was not excessive or “contrary to right reason”—rather, it reflects that\\n\\n\\n\\n\\n 45See Justiss Oil Co. v. Oil Country Tubular Corp., 216 So. 3d 346, 356–57 (La. Ct.\\nApp.), writ denied, 227 So. 3d 830 (La. 2017) (quoting Hanover Ins. Co. v. Plaquemines Parish\\nGov’t, No. 12–1680, 2015 WL 4167745, at *5–6 (E.D. La. July 9, 2015).\\n 46 Article 1893 provides that “Compensation takes place by operation of law when two\\n\\npersons owe to each other sums of money or quantities of fungible things identical in kind,\\nand these sums or quantities are liquidated and presently due. In such a case, compensation\\nextinguishes both obligations to the extent of the lesser amount.” La. Civ. Code art. 1893.\\n 17\\n\\f Case: 17-20599 Document: 00515035583 Page: 18 Date Filed: 07/16/2019\\n\\n\\n\\n No. 17-20599\\nthe jury’s consideration of the evidence led it to reject W&T’s assertion that\\nApache enjoyed a windfall by avoiding the stacking costs. 47\\n VI.\\n For the foregoing reasons, the judgment of the district court is affirmed.\\n\\n\\n\\n\\n 47 Laxton v. Gap, Inc., 333 F.3d 572, 586 (5th Cir. 2003) (“When a damage award is\\nmerely excessive or so large as to appear contrary to right reason, remittitur is the\\nappropriate remedy.”).\\n 18\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2998,"cells":{"id":{"kind":"number","value":8444036,"string":"8,444,036"},"name":{"kind":"string","value":"The INCLUSIVE COMMUNITIES PROJECT, INCORPORATED v. LINCOLN PROPERTY COMPANY Legacy Multifamily North III, L.L.C. CPF PC Riverwalk, L.L.C. HLI White Rock, L.L.C. Brick Row Apartments, L.L.C."},"name_abbreviation":{"kind":"string","value":"Inclusive Cmtys. Project, Inc. v. Lincoln Prop. Co."},"decision_date":{"kind":"string","value":"2019-07-16"},"docket_number":{"kind":"string","value":"17-10943"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Davis, Engelhardt, Jones\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415473/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"DAVIS"},"judge2":{"kind":"string","value":"ENGELHARDT"},"judge3":{"kind":"string","value":"JONES"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8444036/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: The INCLUSIVE COMMUNITIES PROJECT, INCORPORATED v. LINCOLN PROPERTY COMPANY Legacy Multifamily North III, L.L.C. CPF PC Riverwalk, L.L.C. HLI White Rock, L.L.C. Brick Row Apartments, L.L.C.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-16\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: The INCLUSIVE COMMUNITIES PROJECT, INCORPORATED v. LINCOLN PROPERTY COMPANY Legacy Multifamily North III, L.L.C. CPF PC Riverwalk, L.L.C. HLI White Rock, L.L.C. Brick Row Apartments, L.L.C.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-16\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":2999,"cells":{"id":{"kind":"number","value":4640492,"string":"4,640,492"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Inclusive Communities Project v. Lincoln Property"},"decision_date":{"kind":"string","value":"2019-07-17"},"docket_number":{"kind":"string","value":"17-10943"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before DAVIS, JONES, and ENGELHARDT, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n\\n No. 17-10943\\n\\n\\nTHE INCLUSIVE COMMUNITIES PROJECT, INCORPORATED,\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nLINCOLN PROPERTY COMPANY; LEGACY MULTIFAMILY NORTH III,\\nL.L.C.; CPF PC RIVERWALK, L.L.C.; HLI WHITE ROCK, L.L.C.; BRICK\\nROW APARTMENTS, L.L.C.,\\n\\n Defendants - Appellees\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\n ON PETITION FOR REHEARING EN BANC\\n (Opinion 04/09/2019, 5 Cir., 920 F.3d 890)\\n\\nBefore DAVIS, JONES, and ENGELHARDT, Circuit Judges.\\n\\nPER CURIAM:\\n\\n( ) Treating the Petition for Rehearing En Banc as a Petition for Panel\\n Rehearing, the Petition for Panel Rehearing is DENIED. No member of\\n the panel nor judge in regular active service of the court having\\n requested that the court be polled on Rehearing En Banc (FED. R. APP.\\n P. and 5TH CIR. R. 35), the Petition for Rehearing En Banc is DENIED.\\n\\n( / Treating the Petition for Rehearing En Banc as a Petition for Panel\\n Rehearing, the Petition for Panel Rehearing is DENIED. The court\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4417745/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"DAVIS"},"judge2":{"kind":"string","value":"JONES"},"judge3":{"kind":"string","value":"ENGELHARDT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"DAVIS\": \", Circuit\", \"JONES\": \", Circuit\", \"ENGELHARDT\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4640492/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":7,"string":"7"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Inclusive Communities Project v. Lincoln Property\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-07-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n\n No. 17-10943\n\n\nTHE INCLUSIVE COMMUNITIES PROJECT, INCORPORATED,\n\n Plaintiff - Appellant\n\nv.\n\nLINCOLN PROPERTY COMPANY; LEGACY MULTIFAMILY NORTH III,\nL.L.C.; CPF PC RIVERWALK, L.L.C.; HLI WHITE ROCK, L.L.C.; BRICK\nROW APARTMENTS, L.L.C.,\n\n Defendants - Appellees\n\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n\n\n ON PETITION FOR REHEARING EN BANC\n (Opinion 04/09/2019, 5 Cir., 920 F.3d 890)\n\nBefore DAVIS, JONES, and ENGELHARDT, Circuit Judges.\n\nPER CURIAM:\n\n( ) Treating the Petition for Rehearing En Banc as a Petition for Panel\n Rehearing, the Petition for Panel Rehearing is DENIED. No member of\n the panel nor judge in regular active service of the court having\n requested that the court be polled on Rehearing En Banc (FED. R. APP.\n P. and 5TH CIR. R. 35), the Petition for Rehearing En Banc is DENIED.\n\n( / Treating the Petition for Rehearing En Banc as a Petition for Panel\n Rehearing, the Petition for Panel Rehearing is DENIED. The court\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Inclusive Communities Project v. Lincoln Property\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-07-17\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nIN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n\\n No. 17-10943\\n\\n\\nTHE INCLUSIVE COMMUNITIES PROJECT, INCORPORATED,\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nLINCOLN PROPERTY COMPANY; LEGACY MULTIFAMILY NORTH III,\\nL.L.C.; CPF PC RIVERWALK, L.L.C.; HLI WHITE ROCK, L.L.C.; BRICK\\nROW APARTMENTS, L.L.C.,\\n\\n Defendants - Appellees\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\n ON PETITION FOR REHEARING EN BANC\\n (Opinion 04/09/2019, 5 Cir., 920 F.3d 890)\\n\\nBefore DAVIS, JONES, and ENGELHARDT, Circuit Judges.\\n\\nPER CURIAM:\\n\\n( ) Treating the Petition for Rehearing En Banc as a Petition for Panel\\n Rehearing, the Petition for Panel Rehearing is DENIED. No member of\\n the panel nor judge in regular active service of the court having\\n requested that the court be polled on Rehearing En Banc (FED. R. APP.\\n P. and 5TH CIR. R. 35), the Petition for Rehearing En Banc is DENIED.\\n\\n( / Treating the Petition for Rehearing En Banc as a Petition for Panel\\n Rehearing, the Petition for Panel Rehearing is DENIED. 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4,635,695 | United States v. Tyson Baker | 2019-07-01 | 18-1663 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: JORDAN, KRAUSE, and ROTH, Circuit Judges.", "parties": "", "opinions": [{"author": "JORDAN, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _____________\n\n No. 18-1663\n ... | JORDAN | KRAUSE | ROTH | 1 | {"JORDAN": ", Circuit", "KRAUSE": ", Circuit", "ROTH": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4635695/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,635,696 | TD BANK N.A. v. Vernon W. HILL, II, Appellant | TD Bank NA v. Vernon Hill, II | 2019-07-01 | 16-2897 | U.S. Court of Appeals for the Third Circuit | {"judges": "Krause, Cowen", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888852/", "author_raw": ""}, {"author": "", "type": "035concurrenceinpart", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/op... | KRAUSE | COWEN | KRAUSE | 1 | {} | 5 | 0 | 1 | 2 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4635696/ | Published | 1 | 1 | 0 | 1 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,635,760 | E. D. v. Daniel SHARKEY; Berks County Residential Center Immigration Family Center, (BCRC-IFC); County of Berks, Pennsylvania ; Diane Edwards, Director of BCRC-IFC; John Behm ; Jamie Himmelberger; Brittney Rothermel; Erika Taylor; Matthew Malinowski; Jeremiah/Josh Petry, Ice Employee County of Berks, Pennsylvania ; Dia... | E. D. v. Daniel Sharkey | 2019-07-01 | 18-1688 | U.S. Court of Appeals for the Third Circuit | {"judges": "Smith", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888854/", "author_raw": ""}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888855... | SMITH | SMITH | 0 | {} | 4 | 0 | 0 | 2 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4635760/ | Published | 1 | 1 | 1 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,636,031 | UNITED STATES of America v. Ilma Alexandra SORIANO NUNEZ, Appellant | United States v. Ilma Soriano Nunez | 2019-07-02 | 18-2341 | U.S. Court of Appeals for the Third Circuit | {"judges": "McKee, Shwartz, Fuentes", "parties": "", "opinions": [{"author": "SHWARTZ, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ______________\n\n No. 18-2341\n ______________\n\n ... | MCKEE | SHWARTZ | FUENTES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4636031/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,636,593 | Heather R. OBERDORF; Michael A. Oberdorf, Her Husband, Appellants v. AMAZON.COM INC., a Washington Corporation | Heather Oberdorf v. Amazon.com Inc | 2019-07-03 | 18-1041 | U.S. Court of Appeals for the Third Circuit | {"judges": "Roth, Scirica", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888873/", "author_raw": ""}, {"author": "", "type": "035concurrenceinpart", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/op... | ROTH | SCIRICA | ROTH | 1 | {} | 4 | 0 | 0 | 2 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4636593/ | Published | 1 | 1 | 0 | 1 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,637,168 | Heather Oberdorf v. Amazon.com Inc | 2019-07-03 | 18-1041 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: SHWARTZ, SCIRICA and ROTH, Circuit Judges (Opinion", "parties": "", "opinions": [{"author": "ROTH, Circuit Judge:", "type": "010combined", "text": "PRECEDENTIAL\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ____________\n\n No. 18-10... | SHWARTZ | SCIRICA | ROTH | 1 | {"SHWARTZ": ", Circuit", "SCIRICA": ", Circuit", "ROTH": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4637168/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,637,166 | UNITED STATES of America v. Tamara SANTARELLI, Appellant in Appeal No. 16-4114 in Re: Tamara Santarelli, Petitioner in Appeal No. 18-1362 | United States v. Tamara Santarelli | 2019-07-05 | 16-4114; 18-1362 | U.S. Court of Appeals for the Third Circuit | {"judges": "McKee, Ambro, Restrepo", "parties": "", "opinions": [{"author": "RESTREPO, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _____________\n\n Nos. 16-4114, 18-1362\n\n ... | MCKEE | AMBRO | RESTREPO | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4637166/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
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4,637,167 | SPARTAN CONCRETE PRODUCTS, LLC, Appellant v. ARGOS USVI, CORP., F/K/A Caricement USVI, Corp. | Spartan Concrete Prods., LLC v. Argos USVI, Corp. | 2019-07-05 | 18-1942 | U.S. Court of Appeals for the Third Circuit | {"judges": "Chagares, Hardiman, Restrepo", "parties": "", "opinions": [{"author": "HARDIMAN, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ___________\n\n No. 18-1942\n ... | CHAGARES | HARDIMAN | RESTREPO | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4637167/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,637,366 | Galo COBA; Coba Landscaping and Construction, Inc., Individually, and on Behalf of Other Members of the General Public Similarly Situated, Appellants v. FORD MOTOR COMPANY | Galo Coba v. Ford Motor Co | 2019-07-08 | 17-2933 | U.S. Court of Appeals for the Third Circuit | {"judges": "Jordan, Krause, Roth", "parties": "", "opinions": [{"author": "KRAUSE, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _______________\n\n No. 17-2933\n _____... | JORDAN | KRAUSE | ROTH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4637366/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
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4,637,685 | Carl SIMON, Appellant v. GOVERNMENT OF THE VIRGIN ISLANDS | Carl Simon v. Government of the Virgin Islan | 2019-07-09 | Case 18-2755 | U.S. Court of Appeals for the Third Circuit | {"judges": "Smith, Jordan, Rendell", "parties": "", "opinions": [{"author": "District Judge", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n\n\n\n Case No. 18-2755\n\n\n CARL SIMON,\n Appellant\n\... | SMITH | JORDAN | RENDELL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4637685/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,638,070 | UNITED STATES of America v. Pedro Ramon PAYANO, Also Known as Joemanuel Nunez-Suarez, Appellant | United States v. Pedro Payano | 2019-07-10 | 18-1153 | U.S. Court of Appeals for the Third Circuit | {"judges": "Jordan, Krause, Roth", "parties": "", "opinions": [{"author": "KRAUSE, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _______________\n\n No. 18-1153\n _______________\n\n ... | JORDAN | KRAUSE | ROTH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4638070/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,638,071 | GN NETCOM, INC., Appellant v. PLANTRONICS, INC. | GN Netcom, Inc. v. Plantronics, Inc. | 2019-07-10 | 18-1287 | U.S. Court of Appeals for the Third Circuit | {"judges": "Fisher, Smith", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888894/", "author_raw": ""}, {"author": "", "type": "035concurrenceinpart", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/op... | FISHER | SMITH | FISHER | 1 | {} | 4 | 0 | 0 | 2 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4638071/ | Published | 1 | 1 | 0 | 1 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,638,072 | Alanda FORREST, Appellant v. Kevin PARRY, PHM; Camden City Police Officer; Jason Stetser, PHM; Camden City Police Officer; City of Camden; City of Camden Department of Public Safety; Warren Faulk; Paula Dow; Department of the Treasury, State of New Jersey ; John Does I-IV | Alanda Forrest v. Kevin Parry | 2019-07-10 | 16-4351 | U.S. Court of Appeals for the Third Circuit | {"judges": "Greenaway, Bibas, Fuentes", "parties": "", "opinions": [{"author": "GREENAWAY, JR., Circuit Judge", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _____________\n\n No. 16-4351\n ... | GREENAWAY | BIBAS | FUENTES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4638072/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,639,143 | Yagendra TILIJA, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent | Yagendra Tilija v. Attorney General United States | 2019-07-12 | 17-2765 | U.S. Court of Appeals for the Third Circuit | {"judges": "Greenaway, Shwartz, Bibas", "parties": "", "opinions": [{"author": "GREENAWAY, JR., Circuit Judge", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ______________\n\n No. 17-2765\n ____... | GREENAWAY | SHWARTZ | BIBAS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4639143/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,639,144 | UNITED STATES of America v. Renita BLUNT, Appellant United States of America v. Earl Lafayette Hall, III, Appellant | United States v. Renita Blunt | 2019-07-12 | 18-1195; 18-1493 | U.S. Court of Appeals for the Third Circuit | {"judges": "Smith, McKee, Restrepo", "parties": "", "opinions": [{"author": "RESTREPO, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ______________\n\n Nos. 18-1195 and 18-1493\n ______________\n\n U... | SMITH | MCKEE | RESTREPO | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4639144/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,639,145 | Emerald Zodwa NKOMO, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES of America, Respondent | Emerald Nkomo v. Attorney General United States | 2019-07-12 | 18-3109 | U.S. Court of Appeals for the Third Circuit | {"judges": "Chagares, Hardiman, Siler", "parties": "", "opinions": [{"author": "HARDIMAN, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ____________\n\n No. 18-3109\n ... | CHAGARES | HARDIMAN | SILER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4639145/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,639,246 | Commonwealth of PENNSYLVANIA; State of New Jersey v. PRESIDENT UNITED STATES of America; Secretary United States Department of Health and Human Services; United States Department of Health and Human Services; Secretary United States Department of Treasury; United States Department of Treasury; Secretary United States D... | Commonwealth of Pennsylvania v. President United States | 2019-07-12 | 17-3752; 18-1253; 19-1129; 19-1189 | U.S. Court of Appeals for the Third Circuit | {"judges": "McKee, Shwartz, Fuentes", "parties": "", "opinions": [{"author": "SHWARTZ, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _____________\n\n Nos. 17-3752, 18-1253, 19-1129, 19-1189\n ... | MCKEE | SHWARTZ | FUENTES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4639246/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,639,511 | ADAMS OUTDOOR ADVERTISING LIMITED PARTNERSHIP, a Limited Partnership Organized Under the Laws of the State of Minnesota, BY Its Managing General Partner, ADAMS OUTDOOR GP, LLC, Appellant v. PENNSYLVANIA DEPARTMENT OF TRANSPORTATION; Leslie Richards, Individually and in Her Capacity as Secretary of Transportation, Actin... | Adams Outdoor Advertising Ltd v. PA Dept of Transportation | 2019-07-15 | 18-2409 | U.S. Court of Appeals for the Third Circuit | {"judges": "Smith, Ambro, Restrepo", "parties": "", "opinions": [{"author": "AMBRO, Circuit Judge", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ________________\n\n No. 18-2409\n _________... | SMITH | AMBRO | RESTREPO | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4639511/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,640,860 | Commonwealth of Pennsylvania v. President United States | 2019-07-18 | 17-3752 | U.S. Court of Appeals for the Third Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "010combined", "text": "UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _____________\n\n Nos. 17-3752, 18-1253, 19-1129, 19-1189\n ... | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4640860/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
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4,641,376 | Commonwealth of Pennsylvania v. President United States | 2019-07-19 | 17-3752 | U.S. Court of Appeals for the Third Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "010combined", "text": "UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _____________\n\n Nos. 17-3752, 18-1253, 19-1129, 19-1189\n ... | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4641376/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||||||
4,641,578 | Ubaidullah Abdulrashid RADIOWALA, A/K/A Obed Radiowala, A/K/A Obaid Radiowalla, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent | Ubaidullah Radiowala v. Attorney General United States | 2019-07-22 | 18-3480 | U.S. Court of Appeals for the Third Circuit | {"judges": "Chagares, Greenaway, Greenberg", "parties": "", "opinions": [{"author": "GREENAWAY, JR., Circuit Judge", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _____________\n\n No. 18-3480\n ... | CHAGARES | GREENAWAY | GREENBERG | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4641578/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,641,947 | TENNESSEE GAS PIPELINE COMPANY, LLC v. PERMANENT EASEMENT FOR 7.053 ACRES, PERMANENT OVERLAY EASEMENT FOR 1.709 ACRES AND TEMPORARY EASEMENTS FOR 8.551 ACRES IN MILFORD AND WESTFALL TOWNSHIPS, PIKE COUNTY, PENNSYLVANIA, TAX PARCEL NUMBERS; King Arthur Estates, a Limited Partnership; Riothamus Corp, General Partner of K... | Tenn. Gas Pipeline Co. v. Permanent Easement for 7.053 Acres | 2019-07-23 | 17-3700 | U.S. Court of Appeals for the Third Circuit | {"judges": "Greenaway, Chagares", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888979/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinio... | GREENAWAY | CHAGARES | GREENAWAY | 1 | {} | 4 | 0 | 2 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4641947/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,641,948 | OBASI INVESTMENT LTD; Jingli Shao; Robin Joachim Dartell; Lixin Wu; Jason Helton ; Sean Carithers, Individually and on Behalf of All Others Similarly Situated v. TIBET PHARMACEUTICALS, INC ; Hong Yu; Taylor Z. Guo; Sabrina Ren; Wenbo Chen; Youhang Pen; Solomon Chen; Anderson & Strudwick Inc; Sterne Agee Group Inc; Hayd... | Obasi Investment Ltd v. Tibet Pharmaceuticals Inc | 2019-07-23 | 18-1849 | U.S. Court of Appeals for the Third Circuit | {"judges": "Hardiman, Cowen", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888981/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9... | HARDIMAN | COWEN | HARDIMAN | 1 | {} | 4 | 0 | 2 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4641948/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,642,866 | Tennessee Gas Pipeline Co v. Permanent Easement for 7.053 A | 2019-07-25 | 17-3700 | U.S. Court of Appeals for the Third Circuit | {"judges": "", "parties": "", "opinions": [{"author": "District Judge", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _____________\n\n No. 17-3700\n... | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4642866/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||||||
4,642,867 | Pablo Antonio MEJIA-CASTANON, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA | Pablo Mejia-Castanon v. Attorney General United States | 2019-07-25 | 17-2901 | U.S. Court of Appeals for the Third Circuit | {"judges": "Scirica, Siler", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9889007/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/98... | SCIRICA | SILER | SCIRICA | 1 | {} | 4 | 0 | 2 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4642867/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,643,355 | Galo COBA; Coba Landscaping and Construction, Inc., Individually, and on Behalf of Other Members of the General Public Similarly Situated, Appellants v. FORD MOTOR COMPANY | Galo Coba v. Ford Motor Co | 2019-07-26 | 17-2933 | U.S. Court of Appeals for the Third Circuit | {"judges": "Jordan, Krause, Roth", "parties": "", "opinions": [{"author": "KRAUSE, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _______________\n\n No. 17-2933\n _____... | JORDAN | KRAUSE | ROTH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4643355/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,643,356 | Galo Coba v. Ford Motor Co | 2019-07-26 | 17-2933 | U.S. Court of Appeals for the Third Circuit | {"judges": "Present: JORDAN, KRAUSE, and ROTH, Circuit Judges.", "parties": "", "opinions": [{"author": "District Judge", "type": "010combined", "text": "UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n\n\n No. 17-2933\n\n\n GALO COBA; COBA LAND... | JORDAN | KRAUSE | ROTH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4643356/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
8,444,042 | Galo COBA Coba Landscaping and Construction, Inc., individually, and on behalf of other members of the general public similarly situated v. FORD MOTOR COMPANY | Coba v. Ford Motor Co. | 2019-07-26 | No. 17-2933 | U.S. Court of Appeals for the Third Circuit | {"judges": "Krause", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415480/", "author_raw": ""}]} | KRAUSE | KRAUSE | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444042/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,643,670 | CRYSTALLEX INTERNATIONAL CORPORATION v. BOLIVARIAN REPUBLIC OF VENEZUELA Petroleos De Venezuela, S.A. (Intervenor in D.C.), Appellant in Re: Petroleos De Venezuela, S.A., Petitioner | Crystallex Int'l Corp. v. Bolivarian Republic De Venezuela (In Re De Venezuela) | 2019-07-29 | 18-2797 & 18-3124; 18-2889 | U.S. Court of Appeals for the Third Circuit | {"judges": "Ambro, Greenaway, Scirica", "parties": "", "opinions": [{"author": "AMBRO, Circuit Judge", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ________________\n\n Nos. 18-2797 & 18-3124\n ____... | AMBRO | GREENAWAY | SCIRICA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4643670/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,643,964 | Russell HESS, III v. COMMISSIONER SOCIAL SECURITY, Appellant | Russell Hess, III v. Commissioner Social Security | 2019-07-30 | 18-2226 | U.S. Court of Appeals for the Third Circuit | {"judges": "Jordan, Krause, Roth", "parties": "", "opinions": [{"author": "JORDAN, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _____________\n\n No. 18-2226\n _____________\n\n... | JORDAN | KRAUSE | ROTH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4643964/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,644,290 | Erick Geovany YOC-US, Petitioner in Case Number 18-1520 v. ATTORNEY GENERAL UNITED STATES of America, Respondent Luis Calel Espantzay, Petitioner in Case Number 18-1521 v. Attorney General United States of America, Respondent | Erick Yoc-Us v. Attorney General United States | 2019-07-31 | 18-1520; 18-1521 | U.S. Court of Appeals for the Third Circuit | {"judges": "Ambro, Scirica, Rendell", "parties": "", "opinions": [{"author": "Immigration Judge", "type": "010combined", "text": "PRECEDENTIAL\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _____________\n\n Nos. 18-1520 and 18-1521\n _____________\... | AMBRO | SCIRICA | RENDELL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4644290/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,644,561 | Ubaidullah Radiowala v. Attorney General United States | 2019-07-31 | 18-3480 | U.S. Court of Appeals for the Third Circuit | {"judges": "", "parties": "", "opinions": [{"author": "Immigration Judge", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _____________\n\n ... | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4644561/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||||||
4,635,743 | UNITED STATES of America, Plaintiff - Appellee, v. Bobby Arion DINKINS, Defendant - Appellant. | United States v. Bobby Dinkins | 2019-07-01 | 18-6264 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Niemeyer, Keenan, Quattlebaum", "parties": "", "opinions": [{"author": "BARBARA MILANO KEENAN, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 1... | NIEMEYER | KEENAN | QUATTLEBAUM | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4635743/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,636,636 | UNITED STATES of America, Plaintiff-Appellee, v. Ryan COURTADE, Defendant-Appellant, National Association of Criminal Defense Lawyers; Washington and Lee University School of Law Advanced Administrative Litigation Clinic, Amici Supporting Appellant. | United States v. Ryan Courtade | 2019-07-03 | 18-6150 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Gregory, King", "parties": "", "opinions": [{"author": "Norfolk. Rebecca Beach Smith, District Judge", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-615... | GREGORY | KING | GREGORY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4636636/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,636,640 | Lula WILLIAMS ; Gloria Turnage; George Hengle; Dowin Coffy; Felix Gillison, Jr., on Behalf of Themselves and All Individuals Similarly Situated, Plaintiffs - Appellees, v. BIG PICTURE LOANS, LLC; Ascension Technologies, LLC, Defendants - Appellants, and Daniel Gravel ; James Williams, Jr. ; Gertrude McGeshick; Susan Mc... | Lula Williams v. Big Picture Loans, LLC | 2019-07-03 | 18-1827 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Gregory, Agee, Diaz", "parties": "", "opinions": [{"author": "Richmond. Robert E. Payne, Senior District Judge", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n ... | GREGORY | AGEE | DIAZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4636640/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,636,642 | BOARD OF TRUSTEES, SHEET METAL WORKERS' NATIONAL PENSION FUND, Plaintiff - Appellant, and Board of Trustees, International Training Institute for the Sheet Metal and Air Conditioning Industry; Board of Trustees, National Energy Management Institute Committee; Board of Trustees, Sheet Metal Occupational Health Institute... | Board of Trustees v. Four-C-Aire, Inc. | 2019-07-03 | 17-2295 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Niemeyer, Agee, Diaz", "parties": "", "opinions": [{"author": "AGEE, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-2295\n\n... | NIEMEYER | AGEE | DIAZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4636642/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,636,643 | Barry DOE, Individually and as Next Friend of His Minor Children M.D. (2006), E.D. (2008) and K.D. (2009), Plaintiff - Appellant, v. David J. MERON, Individually and in His Official Capacity as Navy Officer and Former Commanding Officer at NSA Bahrain (DOD); Barbara R. Craig, Individually and in Her Official Capacity a... | Barry Doe v. David Meron | 2019-07-03 | 18-2024 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "King, Diaz, Quattlebaum", "parties": "", "opinions": [{"author": "QUATTLEBAUM, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-2024\n\n\nBARR... | KING | DIAZ | QUATTLEBAUM | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4636643/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,637,751 | Xia Bi v. Terry McAuliffe | 2019-07-09 | 18-2194 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before WILKINSON and NIEMEYER, Circuit Judges, and DUNCAN, Senior Circuit Judge.", "parties": "", "opinions": [{"author": "WILKINSON, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n ... | WILKINSON | NIEMEYER | DUNCAN | 1 | {"WILKINSON": ", Circuit", "NIEMEYER": ", Circuit", "DUNCAN": ", Senior Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4637751/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,638,030 | United States v. Ryan Courtade | 2019-07-10 | 18-6150 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before GREGORY, Chief Judge, and KING, Circuit Judge.", "parties": "", "opinions": [{"author": "Norfolk. Rebecca Beach Smith, District Judge", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n ... | GREGORY | KING | GREGORY | 1 | {"GREGORY": ", Chief", "KING": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4638030/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,638,033 | In RE Donald J. TRUMP, President of the United States of America, in His Official Capacity, Petitioner. Professor Clark D. Cunningham; Professor Jesse Egbert, Amici Curiae, Scholar Seth Barrett Tillman; Judicial Education Project, Amici Supporting Petitioner, Former National Security Officials; Commonwealth of Virginia... | In re: Donald Trump | 2019-07-10 | 18-2486 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before NIEMEYER and QUATTLEBAUM, Circuit Judges, and SHEDD, Senior Circuit Judge.", "parties": "", "opinions": [{"author": "NIEMEYER, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT... | NIEMEYER | QUATTLEBAUM | SHEDD | 1 | {"NIEMEYER": ", Circuit", "QUATTLEBAUM": ", Circuit", "SHEDD": ", Senior Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4638033/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,638,035 | DISTRICT OF COLUMBIA; State of Maryland, Plaintiffs - Appellees, v. Donald J. TRUMP, President of the United States of America, in His Individual Capacity, Defendant - Appellant. Scholar Seth Barrett Tillman; Judicial Education Project, Amici Supporting Appellant, Former Government Ethics Officers; Don Fox ; Marilyn Gl... | District of Columbia v. Donald J. Trump | 2019-07-10 | 18-2488 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Niemeyer, Quattlebaum, Shedd", "parties": "", "opinions": [{"author": "NIEMEYER, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n N... | NIEMEYER | QUATTLEBAUM | SHEDD | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4638035/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,638,689 | Kayla BUTTS, Individually and on Behalf of Her Daughter A.F., a Minor, Plaintiff - Appellee, v. the UNITED STATES of America, Defendant - Appellant, and Berkeley Medical Center; West Virginia University Hospital, Inc.; Shenandoah Women's Health Center; Shenandoah Community Health Center ; Shenandoah Midwives; Avinash P... | Kayla Butts v. United States | 2019-07-11 | 18-1693 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Harris, Richardson, Quattlebaum", "parties": "", "opinions": [{"author": "QUATTLEBAUM, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1693\n... | HARRIS | RICHARDSON | QUATTLEBAUM | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4638689/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,638,692 | Ashley Amaris OVERBEY; Baltimore Brew, Plaintiffs - Appellants, v. the MAYOR and City Council OF BALTIMORE; Baltimore City Police Department, Defendants - Appellees. American Society of News Editors; Associated Press Media Editors ; Association of Alternative Newsmedia; BuzzFeed; Gannett Company, Incorporated; Howard U... | Ashley Overbey v. Mayor & City Council of Balt. | 2019-07-11 | 17-2444 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Floyd, Thacker, Quattlebaum", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888908/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v... | FLOYD | THACKER | QUATTLEBAUM | 1 | {} | 4 | 0 | 2 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4638692/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,639,217 | Timothy RICHARDSON, Petitioner - Appellee, v. Edward THOMAS, Warden, Central Prison, Raleigh, North Carolina, Respondent - Appellant. | Timothy Richardson v. Edward Thomas | 2019-07-12 | 18-3 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Motz, Keenan, Traxler", "parties": "", "opinions": [{"author": "Vacated and remanded with instructions by published opinion. Senior Judge Traxler", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n ... | MOTZ | KEENAN | TRAXLER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4639217/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,639,219 | Dennis FUSARO, Plaintiff - Appellant, v. Member Michael R. COGAN, Maryland State Board of Elections ; Member Emmet C. Davitt, Maryland State Board of Elections ; Member Patrick J. Hogan, Maryland State Board of Elections ; Member Kelley A. Howells, Maryland State Board of Elections ; Member Gloria Lawlah, Maryland Stat... | Dennis Fusaro v. Michael Cogan | 2019-07-12 | 18-2167 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Gregory, King, Floyd", "parties": "", "opinions": [{"author": "KING, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-2167\n\n\nDENNIS FUSARO,... | GREGORY | KING | FLOYD | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4639219/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,639,941 | Paul M. RETFALVI, Plaintiff - Appellant, v. UNITED STATES of America, Defendant - Appellee. | Paul Retfalvi v. United States | 2019-07-16 | 18-2158 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Niemeyer, Harris, Hollander", "parties": "", "opinions": [{"author": "HOLLANDER, District Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-2158\n\n... | NIEMEYER | HARRIS | HOLLANDER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4639941/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,639,943 | Eunice GRAVES, Plaintiff - Appellant, and Carlin Robinson, Individually, as Guardian and Next Friend of I.Y., M.Y. and A.Y., and as Personal Representative of the Estate of Veronica Williams, Deceased, Plaintiff, v. Daniel A. LIOI; Melvin Russell, Major, Defendants - Appellees and Baltimore City Police Department, Defe... | Eunice Graves v. Daniel Lioi | 2019-07-16 | 17-1848; 17-1857 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Gregory, Niemeyer, Agee", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888934/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/op... | GREGORY | NIEMEYER | AGEE | 1 | {} | 5 | 0 | 3 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4639943/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,639,944 | Bryan MANNING ; Ryan Williams; Richard Deckerhoff; Richard Eugene Walls, Plaintiffs - Appellants, v. Donald CALDWELL, Commonwealth's Attorney FOR the CITY OF ROANOKE ; Michael Nehemiah Herring, Commonwealth's Attorney for the City of Richmond, Defendants - Appellees. National Law Center on Homelessness & Poverty, Amicu... | Manning v. Caldwell for City of Roanoke | 2019-07-16 | 17-1320 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Gregory, Wilkinson, Niemeyer, Motz, King, Agee, Keenan, Wynn, Diaz, Floyd, Thacker, Harris, Richardson, Quattlebaum, Duncan", "parties": "", "opinions": [{"author": "Niemeyer, Agee, Richardson, Quattlebaum, and Senior Judge Duncan joined", "type": "010combined", "text": "PUBLISHED\n\n ... | GREGORY | WILKINSON | NIEMEYER | 2 | MOTZ; KING; AGEE; KEENAN; WYNN; DIAZ; FLOYD; THACKER; HARRIS; RICHARDSON; QUATTLEBAUM; DUNCAN | {} | 8 | 0 | 5 | 2 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4639944/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||
4,640,386 | Xia Bi v. Terry McAuliffe | 2019-07-17 | 18-2194 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before WILKINSON and NIEMEYER, Circuit Judges, and DUNCAN, Senior Circuit Judge.", "parties": "", "opinions": [{"author": "WILKINSON, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n ... | WILKINSON | NIEMEYER | DUNCAN | 1 | {"WILKINSON": ", Circuit", "NIEMEYER": ", Circuit", "DUNCAN": ", Senior Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4640386/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,640,388 | UNITED STATES of America, Plaintiff - Appellee, v. Juan CORTEZ, A/K/A Jasinto Morales, Defendant - Appellant. Steven Abrams ; Esmeralda Cabrera; Teofilo Chapa; Jeffrey S. Chase; George T. Chew; Matthew J. D'Angelo; Bruce J. Einhorn; Cecelia M. Espenoza; Noel Ferris; John F. Gossart, Jr.; Miriam Hayward; Rebecca Jamil; ... | United States v. Juan Cortez | 2019-07-17 | 19-4055 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Motz, Agee, Harris", "parties": "", "opinions": [{"author": "PAMELA HARRIS, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 19-405... | MOTZ | AGEE | HARRIS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4640388/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,640,772 | Therl TAYLOR, Plaintiff - Appellant, v. Virginia GRUBBS; Pamala Smith ; Ann Hallman; Sherman Anderson, Present Chief; Valerie Jones; Supervisor Randall Williams; John Pate; Allendale Fairfax County-City, Defendants - Appellees. Therl Taylor, Plaintiff - Appellant, v. John Pate; Randall Williams; Teresa Ramsey; Connie B... | Therl Taylor v. Virginia Grubbs | 2019-07-18 | 17-6374; 17-6375; 17-6376 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Motz, Wynn, Richardson", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888962/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opi... | MOTZ | WYNN | RICHARDSON | 1 | {} | 5 | 0 | 3 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4640772/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,641,291 | United States v. Juan Cortez | 2019-07-19 | 19-4055 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before MOTZ, AGEE, and HARRIS, Circuit Judges.", "parties": "", "opinions": [{"author": "PAMELA HARRIS, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n ... | MOTZ | AGEE | HARRIS | 1 | {"MOTZ": ", Circuit", "AGEE": ", Circuit", "HARRIS": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4641291/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,641,295 | Robert Sanchez TURNER, Plaintiff - Appellant, v. Al THOMAS, Jr., in His Individual Capacity and His Official Capacity as Chief of Charlottesville Police Department; City of Charlottesville, Virginia ; W. Steven Flaherty, in His Individual Capacity, Defendants - Appellees. | Robert Turner v. Al Thomas, Jr. | 2019-07-19 | 18-1733 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Floyd, Harris, Richardson", "parties": "", "opinions": [{"author": "FLOYD, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1733\n\n\nROBERT SA... | FLOYD | HARRIS | RICHARDSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4641295/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,641,300 | Melvin Josue Rodriguez CABRERA, Petitioner, v. William P. BARR, Attorney General, Respondent. | Melvin Rodriguez Cabrera v. William Barr | 2019-07-19 | 18-1314 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Motz, Agee, Harris", "parties": "", "opinions": [{"author": "AGEE, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1314\n\n\n\nMELVIN JOSUE RO... | MOTZ | AGEE | HARRIS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4641300/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,642,452 | UNITED STATES of America, Plaintiff - Appellee, v. Christopher RODRIGUEZ-SORIANO, A/K/A Christopher Soriano, A/K/A Christopher Soriano-Rodriguez, Defendant - Appellant. | United States v. Christopher Rodriguez-Soriano | 2019-07-24 | 18-4291 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Gregory, Richardson, Duncan", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888985/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v... | GREGORY | RICHARDSON | DUNCAN | 1 | {} | 4 | 0 | 2 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4642452/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,642,454 | Rema DAWSON-MURDOCK, Plaintiff - Appellant, v. NATIONAL COUNSELING GROUP, INC.; National Counseling Group, Inc. Plan, Defendants - Appellees. | Rema Dawson-Murdock v. National Counseling Group, Inc | 2019-07-24 | 18-1989 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "King, Diaz, Quattlebaum", "parties": "", "opinions": [{"author": "KING, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1989\n\n\nREMA DAWSON-... | KING | DIAZ | QUATTLEBAUM | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4642454/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,642,456 | Marcus HAHN, Petitioner - Appellant, v. Warden Bonita MOSELEY, Federal Correctional Institution, Edgefield, South Carolina, Respondent - Appellee. | Marcus Hahn v. Bonita Moseley | 2019-07-24 | 18-6283 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Gregory, Wynn, Thacker", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888988/", "author_raw": ""}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4... | GREGORY | WYNN | THACKER | 1 | {} | 4 | 0 | 0 | 2 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4642456/ | Published | 1 | 1 | 1 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,642,457 | LIFE TECHNOLOGIES CORPORATION, a Delaware Corporation, Plaintiff - Appellee, v. Krishnamurthy GOVINDARAJ, Former President, Life Technologies Corporation, a Maryland Corporation, Party-In-Interest - Appellant, and Life Technologies Corporation, Montgomery County, Maryland, Defendant. | Life Technologies Corporation v. Krishnamurthy Govindaraj | 2019-07-24 | 16-1703 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Agee, Keenan, Quattlebaum", "parties": "", "opinions": [{"author": "BARBARA MILANO KEENAN, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 16-17... | AGEE | KEENAN | QUATTLEBAUM | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4642457/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,642,927 | UNITED STATES of America, Plaintiff - Appellee, v. Omar VILLARREAL SILVA, A/K/A Nolberto Ruiz Trinidad, A/K/A Nolberto Trinidad Ruiz, Defendant - Appellant. | United States v. Omar Silva | 2019-07-25 | 18-4652 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Niemeyer, Keenan, Quattlebaum", "parties": "", "opinions": [{"author": "NIEMEYER, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-4652\n\n\nUN... | NIEMEYER | KEENAN | QUATTLEBAUM | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4642927/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,642,928 | Tiffanie HUPP; R.H., a Minor, by and Through His Next Friend, Tiffanie Hupp; Clifford Myers, Plaintiffs - Appellants, v. State Trooper Seth COOK; Colonel C.R. Jay Smithers, Defendants - Appellees, and West Virginia State Police, Defendant. | Tiffanie Hupp v. State Trooper Seth Cook | 2019-07-25 | 18-1845 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Gregory, King", "parties": "", "opinions": [{"author": "at Charleston. Thomas E. Johnston, Chief District Judge", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n ... | GREGORY | KING | GREGORY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4642928/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,643,374 | UNITED STATES of America, Plaintiff - Appellee, v. Roger Dale CHARLES, II, Defendant - Appellant. | United States v. Roger Charles, II | 2019-07-26 | 17-7416 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Wilkinson, Niemeyer, Duncan", "parties": "", "opinions": [{"author": "NIEMEYER, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-7416\n\n\nUNI... | WILKINSON | NIEMEYER | DUNCAN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4643374/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,643,379 | In RE: Carlos BROWN, Petitioner. | In re: Carlos Brown | 2019-07-26 | 18-1527 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Motz, Agee, Wynn", "parties": "", "opinions": [{"author": "AGEE, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1527\n\n\n\nIn re: CARLOS ... | MOTZ | AGEE | WYNN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4643379/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,643,380 | DEFENDERS OF WILDLIFE; Sierra Club; Virginia Wilderness Committee, Petitioners, v. UNITED STATES DEPARTMENT OF THE INTERIOR; United States Fish and Wildlife Service, an Agency of the U.S. Department of the Interior; Jim Kurth, in His Official Capacity as Acting Director; Paul Phifer, in His Official Capacity as Assista... | Defenders of Wildlife v. U.S. Dept. of the Interior | 2019-07-26 | 18-2090 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Gregory, Wynn, Thacker", "parties": "", "opinions": [{"author": "Vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n ... | GREGORY | WYNN | THACKER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4643380/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,643,703 | UNITED STATES of America, Plaintiff - Appellee, v. Benjamin GALECKI, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Charles Burton Ritchie, Defendant - Appellant. | United States v. Benjamin Galecki | 2019-07-29 | 18-4727; 18-4730 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Agee, Floyd, Duncan", "parties": "", "opinions": [{"author": "AGEE, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-4727\n\n\n\nUNITED STATES ... | AGEE | FLOYD | DUNCAN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4643703/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,643,704 | UNITED STATES of America, Plaintiff - Appellee, v. Benitez Auguarius MOODY, Defendant - Appellant. | United States v. Benitez Moody | 2019-07-29 | 18-4213 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Motz, Agee, Richardson", "parties": "", "opinions": [{"author": "RICHARDSON, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-4213\n\n\nUNITED... | MOTZ | AGEE | RICHARDSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4643704/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,644,005 | UNITED STATES of America, Plaintiff - Appellee, v. Randall CORNETTE, Defendant - Appellant. | United States v. Randall Cornette | 2019-07-30 | 18-6041 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Agee, Floyd, Duncan", "parties": "", "opinions": [{"author": "FLOYD, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-6041\n\n\nUNITED STATES ... | AGEE | FLOYD | DUNCAN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4644005/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,644,010 | UNITED STATES of America, Plaintiff - Appellee, v. Brandon LOCKE, Defendant - Appellant. | United States v. Brandon Locke | 2019-07-30 | 18-4367 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Wilkinson, King, Berger, Southern, Virginia", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9889024/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistene... | WILKINSON | KING | BERGER | 1 | {} | 5 | 0 | 3 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4644010/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,644,012 | J. Duane GILLIAM, Guardian of the Estate of Leon Brown; Raymond C. Tarlton, Guardian Ad Litem for Henry Lee McCollum, Plaintiffs - Appellees, and Henry Lee McCollum; Leon Brown; Geraldine Brown Ransom, Guardian of Leon Brown; Kimberly Pinchbeck, as Limited Guardian and Conservator of the Estate of Henry Lee McCollum, P... | J. Gilliam v. Kenneth Sealey | 2019-07-30 | 18-1366; 18-1402 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Niemeyer, Thacker, Richardson", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9889026/", "author_raw": ""}, {"author": "", "type": "035concurrenceinpart", "text": "", "resource_uri": "https://www.courtlistener.co... | NIEMEYER | THACKER | RICHARDSON | 1 | {} | 5 | 0 | 0 | 3 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4644012/ | Published | 1 | 1 | 0 | 1 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,644,407 | UNITED STATES of America, Plaintiff - Appellee, v. Victor Oyewumi OLOYEDE, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Babatunde Emmanuel Popoola, A/K/A Emmanuel Popoola, A/K/A Tunde Popoola, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Mojisola Tinuola Popoola... | United States v. Victor Oloyede | 2019-07-31 | 17-4102; 17-4186; 17-4191; 17-4207 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Niemeyer, King, Wynn", "parties": "", "opinions": [{"author": "NIEMEYER, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 17-4102\n\n\nUNITED STATES OF AMERICA,... | NIEMEYER | KING | WYNN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4644407/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,644,413 | UNITED STATES of America, Plaintiff-Appellee, v. Daniel Lamont MATHIS, A/K/A Gunna, A/K/A Mooch, A/K/A D-Man, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Mersadies Lachelle Shelton, A/K/A Lady Gunns, A/K/A Maisha Love Uhuru, Defendant-Appellant. United States of America, Plaintiff-Appellee, v.... | United States v. Daniel Mathis | 2019-07-31 | 16-4633; 16-4635; 16-4637; 16-4641; 16-4837; 16-4838 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Keenan, Diaz, Duncan", "parties": "", "opinions": [{"author": "BARBARA MILANO KEENAN, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 16-4633\n\n\nUNITED... | KEENAN | DIAZ | DUNCAN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4644413/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,635,710 | John Priester, Jr. v. JP Morgan Chase Bank | 2019-07-01 | 18-40127 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before JOLLY, COSTA, and HO, Circuit Judges.", "parties": "", "opinions": [{"author": "GREGG COSTA, Circuit Judge:", "type": "010combined", "text": "REVISED July 1, 2019\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n ... | JOLLY | COSTA | HO | 1 | {"JOLLY": ", Circuit", "COSTA": ", Circuit", "HO": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4635710/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,635,818 | UNITED STATES of America, Plaintiff-Appellee, v. Gloria Ann PALACIOS, Defendant-Appellant. | United States v. Gloria Palacios | 2019-07-01 | 17-10376 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Smith, Wiener, Elrod", "parties": "", "opinions": [{"author": "JERRY E. SMITH, Circuit Judge:", "type": "010combined", "text": "Case: 17-10376 Document: 00515017967 Page: 1 Date Filed: 07/01/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | SMITH | WIENER | ELROD | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4635818/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,635,819 | UNITED STATES of America, Plaintiff-Appellee v. Elder Rocael TZACIR-GARCIA, Defendant-Appellant | United States v. Elder Tzacir-Garcia | 2019-07-01 | 14-41437 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Jolly, Smith, Graves", "parties": "", "opinions": [{"author": "E. GRADY JOLLY, Circuit Judge:", "type": "010combined", "text": "Case: 14-41437 Document: 00515017531 Page: 1 Date Filed: 07/01/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT... | JOLLY | SMITH | GRAVES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4635819/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,635,820 | Dennis BARGHER, Plaintiff-Appellant v. Craig WHITE, Major; Unknown Davidson, Sergeant; Unknown Wilkes, Master Sergeant, Defendants-Appellees | Dennis Bargher v. Craig White | 2019-07-01 | 17-30455 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Stewart, Dennis, Willett", "parties": "", "opinions": [{"author": "JAMES L. DENNIS, Circuit Judge:", "type": "010combined", "text": "Case: 17-30455 Document: 00515017108 Page: 1 Date Filed: 07/01/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | STEWART | DENNIS | WILLETT | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4635820/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,636,057 | Richard Brett FREDERKING, Plaintiff - Appellant v. CINCINNATI INSURANCE COMPANY, Defendant - Appellee | Richard Frederking v. Cincinnati Insurance Company | 2019-07-02 | 18-50536 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "James, Jones, Oldham", "parties": "", "opinions": [{"author": "JAMES C. HO, Circuit Judge:", "type": "010combined", "text": "Case: 18-50536 Document: 00515018844 Page: 1 Date Filed: 07/02/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | JAMES | JONES | OLDHAM | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4636057/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,636,058 | Doctor Joseph A. ZADEH; Jane Doe, Patient, Plaintiffs - Appellants v. Mari ROBINSON, in Her Individual Capacity and in Her Official Capacity; Sharon Pease, in Her Individual Capacity; Kara Kirby, in Her Individual Capacity, Defendants - Appellees | Joseph Zadeh v. Mari Robinson | 2019-07-02 | 17-50518 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before JOLLY, SOUTHWICK, and WILLETT, Circuit Judges.", "parties": "", "opinions": [{"author": "LESLIE H. SOUTHWICK, Circuit Judge", "type": "010combined", "text": "Case: 17-50518 Document: 00515018705 Page: 1 Date Filed: 07/02/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | JOLLY | SOUTHWICK | WILLETT | 1 | {"JOLLY": ", Circuit", "SOUTHWICK": ", Circuit", "WILLETT": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4636058/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,636,209 | UNITED STATES of America, Plaintiff - Appellee v. Rafael CORTEZ-GONZALEZ, Defendant - Appellant | United States v. Rafael Cortez-Gonzalez | 2019-07-02 | 17-41204 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Owen, Southwick, Higginson", "parties": "", "opinions": [{"author": "LESLIE H. SOUTHWICK, Circuit Judge:", "type": "010combined", "text": "Case: 17-41204 Document: 00515020221 Page: 1 Date Filed: 07/02/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH... | OWEN | SOUTHWICK | HIGGINSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4636209/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,636,213 | UNITED STATES of America, Plaintiff-Appellee v. Coy JONES, Defendant-Appellant United States of America, Plaintiff-Appellee v. Coy Marshall Jones, Defendant-Appellant | United States v. Coy Jones | 2019-07-02 | 18-50086; Consolidated With Case 18-50088 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Higginbotham, Smith, Higginson", "parties": "", "opinions": [{"author": "STEPHEN A. HIGGINSON, Circuit Judge:", "type": "010combined", "text": "Case: 18-50086 Document: 00515019836 Page: 1 Date Filed: 07/02/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFT... | HIGGINBOTHAM | SMITH | HIGGINSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4636213/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,636,215 | State of Nevada v. LABR | 2019-07-02 | 18-40246 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before JOLLY, DENNIS, and HIGGINSON, Circuit Judges.", "parties": "", "opinions": [{"author": "JAMES L. DENNIS, Circuit Judge:", "type": "010combined", "text": "Case: 18-40246 Document: 00515020033 Page: 1 Date Filed: 07/02/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | JOLLY | DENNIS | HIGGINSON | 1 | {"JOLLY": ", Circuit", "DENNIS": ", Circuit", "HIGGINSON": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4636215/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,636,217 | Gary W. NETTO; Dejuana L. Netto, Plaintiffs - Appellees v. ATLANTIC SPECIALTY INSURANCE COMPANY, Defendant - Appellant | Gary Netto v. Atlantic Specialty Insurance | 2019-07-02 | 18-60588 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Owen, Southwick, Higginson", "parties": "", "opinions": [{"author": "LESLIE H. SOUTHWICK, Circuit Judge:", "type": "010combined", "text": "Case: 18-60588 Document: 00515020160 Page: 1 Date Filed: 07/02/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUI... | OWEN | SOUTHWICK | HIGGINSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4636217/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,636,218 | Dennis Bargher v. Craig White | 2019-07-02 | 17-30455 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.", "parties": "", "opinions": [{"author": "JAMES L. DENNIS, Circuit Judge:", "type": "010combined", "text": "Case: 17-30455 Document: 00515020275 Page: 1 Date Filed: 07/02/2019\n\n\n\n\n REVISED July 2, 2019\... | STEWART | DENNIS | WILLETT | 1 | {"STEWART": ", Chief", "DENNIS": ", Circuit", "WILLETT": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4636218/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,636,220 | Bobby R. BROWN, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellee, William E. Scott, Intervenor Plaintiff-Appellee, Tyrone Day; Kenneth Hickman ; R. Wayne Johnson ; Torrance Flemings; Kenneth Pryor; Julian A. Randall; Lonnie Dean Collins; Lamont Edward Wilson, Intervenor Plaintiffs-Appelle... | Bobby Brown v. Bryan Collier | 2019-07-02 | 14-20249; consolidated with 14-20444 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "King, Dennis, Owen", "parties": "", "opinions": [{"author": "PRISCILLA R. OWEN, Circuit Judge, joined by KING, Circuit Judge, in Parts", "type": "010combined", "text": "Case: 14-20249 Document: 00515020007 Page: 1 Date Filed: 07/02/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | KING | DENNIS | OWEN | 1 | {} | 3 | 0 | 1 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4636220/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
8,444,034 | State of TEXAS, - Chipotle Mexican Grill, Incorporated Chipotle Services, L.L.C. v. United States DEPARTMENT OF LABOR, Carmen Alvarez, and her Counsel | State v. U.S. Dep't of Labor | 2019-07-02 | No. 18-40246 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Dennis, Higginson, Jolly", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415471/", "author_raw": ""}]} | DENNIS | HIGGINSON | JOLLY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444034/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,636,773 | Billy Jack CRUTSINGER, Petitioner-Appellant, v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee. | Billy Crutsinger v. Lorie Davis, Director | 2019-07-03 | 18-70027 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Smith, Owen, Graves", "parties": "", "opinions": [{"author": "PRISCILLA R. OWEN, Circuit Judge:", "type": "010combined", "text": "Case: 18-70027 Document: 00515021537 Page: 1 Date Filed: 07/03/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | SMITH | OWEN | GRAVES | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4636773/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,637,387 | M. D., BY NEXT FRIEND Sarah R. STUKENBERG ; Z. H., by Next Friend Carla B. Morrison ; S. A., by Next Friend Javier Solis ; A. M., by Next Friend Jennifer Talley; J. S., by Next Friend Anna J. Ricker; H. v. by Next Friend Anna J. Ricker; L. H., by Next Friend Estela C. Vasquez; C. H., by Next Friend Estela C. Vasquez; ... | M. D.,By Next Friend Stukenberg v. Abbott | 2019-07-08 | 18-40057 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Higginbotham, Smith, Clement", "parties": "", "opinions": [{"author": "EDITH BROWN CLEMENT, Circuit Judge:", "type": "010combined", "text": "Case: 18-40057 Document: 00515024789 Page: 1 Date Filed: 07/08/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRC... | HIGGINBOTHAM | SMITH | CLEMENT | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4637387/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,637,472 | CITY OF HEARNE, TEXAS, Plaintiff v. Milton JOHNSON, Defendant-Cross Claimant-Appellee v. Bryan F. Russ, Jr., Cross Defendant-Appellant | City of Hearne, Texas v. Milton Johnson | 2019-07-08 | 17-50970 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Dennis, Owen, Southwick", "parties": "", "opinions": [{"author": "LESLIE H. SOUTHWICK, Circuit Judge:", "type": "010combined", "text": "Case: 17-50970 Document: 00515025687 Page: 1 Date Filed: 07/08/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\... | DENNIS | OWEN | SOUTHWICK | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4637472/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,637,721 | UNITED STATES of America, Plaintiff - Appellee v. Bekir BULUC, Also Known as Celebi Buluc, Also Known as Bekir Celibi, Defendant - Appellant | United States v. Bekir Buluc | 2019-07-09 | 17-20694 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Clement, Duncan, Oldham", "parties": "", "opinions": [{"author": "STUART KYLE DUNCAN, Circuit Judge:", "type": "010combined", "text": "Case: 17-20694 Document: 00515026218 Page: 1 Date Filed: 07/09/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT... | CLEMENT | DUNCAN | OLDHAM | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4637721/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,637,723 | MIDCAP MEDIA FINANCE, L.L.C., Plaintiff-Appellee Cross-Appellant, v. PATHWAY DATA, INCORPORATED, Doing Business as Consumer Direct, Defendant-Appellant Cross-Appellee. | MidCap Media Finance, L.L.C. v. Pathway Data, Inco | 2019-07-09 | 18-50650 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Clement, Duncan, Oldham", "parties": "", "opinions": [{"author": "ANDREW S. OLDHAM, Circuit Judge:", "type": "010combined", "text": "Case: 18-50650 Document: 00515026469 Page: 1 Date Filed: 07/09/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | CLEMENT | DUNCAN | OLDHAM | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4637723/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,637,830 | Norvis Harmon v. Dallas County, Texas | 2019-07-09 | 18-10353 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before REAVLEY, ELROD, and WILLETT, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "Case: 18-10353 Document: 00515027635 Page: 1 Date Filed: 07/09/2019\n\n\n\n\n REVISED July 9, 2019\n\n IN THE UNITED STATES COURT ... | REAVLEY | ELROD | WILLETT | 1 | {"REAVLEY": ", Circuit", "ELROD": ", Circuit", "WILLETT": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4637830/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,637,832 | Jose Nelson CRUZ; Nelson Steven Cruz-Villega, Petitioners, v. William P. BARR, U. S. Attorney General, Respondent. | Jose Cruz v. William Barr, U. S. Atty Gen | 2019-07-09 | 17-60510 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "King, Smith, Willett", "parties": "", "opinions": [{"author": "DON R. WILLETT, Circuit Judge:", "type": "010combined", "text": "Case: 17-60510 Document: 00515026843 Page: 1 Date Filed: 07/09/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | KING | SMITH | WILLETT | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4637832/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,638,095 | UNITED STATES of America, Plaintiff-Appellee, v. Lazandy DANIELS, Defendant-Appellant. | United States v. Lazandy Daniels | 2019-07-10 | 18-30791 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "King, Smith, Willett", "parties": "", "opinions": [{"author": "DON R. WILLETT, Circuit Judge:", "type": "010combined", "text": "Case: 18-30791 Document: 00515027992 Page: 1 Date Filed: 07/10/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | KING | SMITH | WILLETT | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4638095/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,638,257 | USA v. Luminant Generation Co.,L.L.C., et a | 2019-07-10 | 17-10235 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before STEWART, Chief Judge, JONES, SMITH, DENNIS, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.", "parties": "", "opinions": [{"author": "Judge Ho is recused and did not participate in this decision", "type": "010combined", "text": "IN TH... | STEWART | JONES | SMITH | 2 | DENNIS; OWEN; ELROD; SOUTHWICK; HAYNES; GRAVES; HIGGINSON; COSTA; WILLETT; DUNCAN; ENGELHARDT; OLDHAM | {"STEWART": ", Chief", "JONES": ", Circuit", "SMITH": ", Circuit", "DENNIS": ", Circuit", "OWEN": ", Circuit", "ELROD": ", Circuit", "SOUTHWICK": ", Circuit", "HAYNES": ", Circuit", "GRAVES": ", Circuit", "HIGGINSON": ", Circuit", "COSTA": ", Circuit", "WILLETT": ", Circuit", "DUNCAN": ", Circuit", "ENGELHARDT": ", Cir... | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4638257/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,638,260 | Jose Caycho Melgar v. T.B. Butler Publishing Compa | 2019-07-10 | 18-41080 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before BENAVIDES, HAYNES, and WILLETT, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United ... | BENAVIDES | HAYNES | WILLETT | 1 | {"BENAVIDES": ", Circuit", "HAYNES": ", Circuit", "WILLETT": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4638260/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,639,521 | UNITED STATES of America, Plaintiff-Appellee, v. Richard Luke ELAM, Defendant-Appellant. | United States v. Richard Elam | 2019-07-15 | 18-10276 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.", "parties": "", "opinions": [{"author": "JERRY E. SMITH, Circuit Judge:", "type": "010combined", "text": "Case: 18-10276 Document: 00515033235 Page: 1 Date Filed: 07/15/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | HIGGINBOTHAM | SMITH | SOUTHWICK | 1 | {"HIGGINBOTHAM": ", Circuit", "SMITH": ", Circuit", "SOUTHWICK": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4639521/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,639,522 | UNITED STATES of America, Plaintiff-Appellee, v. Babar Javed BUTT, Defendant, and Huma Butt; Tajuddin Salahuddin, Appellants. | United States v. Babar Butt | 2019-07-15 | 18-20131 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Higginbotham, Smith, Southwick", "parties": "", "opinions": [{"author": "JERRY E. SMITH, Circuit Judge:", "type": "010combined", "text": "Case: 18-20131 Document: 00515033470 Page: 1 Date Filed: 07/15/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUI... | HIGGINBOTHAM | SMITH | SOUTHWICK | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4639522/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,639,603 | United States v. Rosie Diggles | 2019-07-15 | 18-40521 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before STEWART, Chief Judge, JONES, SMITH, DENNIS, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.", "parties": "", "opinions": [{"author": "", "type": "010combined", "text": "IN THE UNITED STATES COURT OF APPEALS\n FOR T... | STEWART | JONES | SMITH | 2 | DENNIS; OWEN; ELROD; SOUTHWICK; HAYNES; GRAVES; HIGGINSON; COSTA; WILLETT; HO; DUNCAN; ENGELHARDT; OLDHAM | {"STEWART": ", Chief", "JONES": ", Circuit", "SMITH": ", Circuit", "DENNIS": ", Circuit", "OWEN": ", Circuit", "ELROD": ", Circuit", "SOUTHWICK": ", Circuit", "HAYNES": ", Circuit", "GRAVES": ", Circuit", "HIGGINSON": ", Circuit", "COSTA": ", Circuit", "WILLETT": ", Circuit", "HO": ", Circuit", "DUNCAN": ", Circuit", "... | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4639603/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
8,444,032 | UNITED STATES of America v. Rosie DIGGLES Walter Diggles Anita Diggles | United States v. Diggles | 2019-07-15 | No. 18-40521 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415469/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444032/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||||
4,639,928 | APACHE DEEPWATER, L.L.C., Plaintiff - Appellee v. W&T OFFSHORE, INCORPORATED, Defendant - Appellant | Apache Corporation v. W & T Offshore, Incorporated | 2019-07-16 | 17-20599 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Higginbotham, Graves, Willett", "parties": "", "opinions": [{"author": "PATRICK E. HIGGINBOTHAM, Circuit Judge:", "type": "010combined", "text": "Case: 17-20599 Document: 00515035583 Page: 1 Date Filed: 07/16/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR TH... | HIGGINBOTHAM | GRAVES | WILLETT | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4639928/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
8,444,036 | The INCLUSIVE COMMUNITIES PROJECT, INCORPORATED v. LINCOLN PROPERTY COMPANY Legacy Multifamily North III, L.L.C. CPF PC Riverwalk, L.L.C. HLI White Rock, L.L.C. Brick Row Apartments, L.L.C. | Inclusive Cmtys. Project, Inc. v. Lincoln Prop. Co. | 2019-07-16 | 17-10943 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Davis, Engelhardt, Jones", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415473/", "author_raw": "PER CURIAM"}]} | DAVIS | ENGELHARDT | JONES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444036/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,640,492 | Inclusive Communities Project v. Lincoln Property | 2019-07-17 | 17-10943 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before DAVIS, JONES, and ENGELHARDT, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n\n No. 17-10943\n\n\nTHE INCLUSIVE COMMUNITIES PROJ... | DAVIS | JONES | ENGELHARDT | 1 | {"DAVIS": ", Circuit", "JONES": ", Circuit", "ENGELHARDT": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4640492/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 7 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
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